Aster Holdings Limited v City Council of Nairobi & 4 others [2017] KEELC 1220 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff lawfully acquired title to the amalgamated property LR No. 1870/V/247
The plaintiff lawfully acquired and amalgamated the two properties, obtaining LR No. 1870/V/247 and an extended 99-year lease
The plaintiff purchased the two parcels under registered indentures in 1993, obtained approval for change of user conditional on amalgamation, and the amalgamation was confirmed by the Registrar of Titles and the Survey Department, with a new grant and deed plan No. 234323 issued. The claim that the plaintiff's documents were backdated had no basis.
Whether the First Defendant acquired a lawful title capable of passing to the Fifth Defendant
No - the suit property was not available for allocation, and the title was obtained fraudulently through a corrupt scheme involving both the First and Fifth Defendants
The property had been privately owned since 1946 and had ceased to exist independently upon amalgamation. The scheme to allocate it to the Fifth Defendant began in 2006, a forged deed plan with reduced acreage was used, and the original parcel file went missing and was replaced with a temporary file. The title was therefore obtained illegally, unprocedurally and through a corrupt scheme and conferred no good title.
Whether the Fifth Defendant's reliance on a registered title defeats the plaintiff's claim
No - Section 26(1) of the Land Registration Act permits challenge of titles acquired illegally, unprocedurally or through a corrupt scheme
Although the Fifth Defendant held a certificate of title restored by judicial review orders, the restoration was only because it had not been heard before cancellation, not because the title was lawful. Since the Fifth Defendant was party to the fraudulent scheme from the beginning, its title fell within the Section 26 exceptions to indefeasibility and could not stand against the plaintiff.
Whether the plaintiff proved forgery of the deed plan to the required standard
Yes - the difference in acreage between the two deed plans was sufficient proof of forgery without forensic evidence
The deed plan presented by the Fifth Defendant showed 2.105 hectares while the amalgamated property's plan showed 3.069 hectares, bore the same dates, and part of the amalgamated property had been hived off. Requiring forensic evidence would demand proof beyond reasonable doubt, which is not the civil standard for fraud.
Whether general damages for trespass were payable
Yes - the Fifth Defendant, having entered in August 2007 and remained in possession, was liable in trespass and general damages of Kshs.100,000,000/= were assessed
Trespass was proved by the forceful invasion in August 2007 and continued possession for over ten years, keeping the plaintiff off a prime 5.2-acre property in Westlands valued at Kshs.1.8 billion in 2013. Specific damage need not be proved; the court assessed damages having regard to location and value.
Legal principles established
#- A title procured illegally, unprocedurally or through a corrupt scheme is not protected by indefeasibility under Section 26(1) of the Land Registration Act
- Once land has been alienated to a party, it ceases to be available for allocation to a third party; such allocation is not double allotment but illegal allocation of private property
- The standard of proof for fraud in civil cases is above balance of probabilities but not beyond reasonable doubt
Court orders
#- 1.A declaration that the plaintiff is the sole and lawfully registered proprietor of the suit property (LR No. 1870/V/6) by reason of it being part of LR No. 1870/V/247
- 2.A declaration that the allotment of the suit property to the First Defendant on 11th April 2007 by the Commissioner of Lands was unlawful, irregular and void ab initio
- 3.A declaration that Grant I.R number 105610 issued to the First Defendant on 25th April 2007 was fraudulent, unlawful, irregular and void ab initio
- 4.A declaration that the lease dated 4th May 2007 between the First and Fifth Defendants over LR No. 1870/V/6 was irregular, unlawful and void ab initio
- 5.An order directing the Third Defendant to rectify the relevant register and documents and cancel the second grant and the lease issued to the First and Fifth Defendants
- 6.A declaration that the Fifth Defendant unlawfully occupied and took possession of the suit property and that these acts amount to trespass
- 7.General damages of Kshs.100,000,000/= awarded against the Fifth Defendant
- 8.An order directing the First and Fifth Defendants to deliver vacant possession of the suit property to the plaintiff forthwith
- 9.A permanent injunction restraining the First and Fifth Defendants from dealing in Grant number 105610 or the suit property
- 10.A permanent injunction restraining the Second and Third Defendants from accepting, acting upon or effecting any dealing with the suit property
- 11.Costs of the suit to be borne by the First and Fifth Defendants
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Registered Trustee of Lady Muriel Jex Blake Memorial Garden v Anthony Njehu Boro & another [2020] KEELC 2070 (KLR)[2020] KEELC 2070 (KLR)18 Jun 2020applied
Cite this brief
#Cite this brief
Caselaw, "Aster Holdings Limited v City Council of Nairobi & 4 others [2017] KEELC 1220 (KLR)", Case Analysis (2017). ELC Case No. 175 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1220/eng@2017-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.