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ELCPartially AllowedCivil Suit No. ELC 646 of 2014· [2017] KEELC 1761 (KLR)

Ashmi Investment Limited v Riakina Limited & another [2017] KEELC 1761 (KLR)

Environment and Land Court
25 September 2017
3,498 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled a title obtained through double allocation, confirming that prompt payment and actual possession beat a late paper allocation.

What this practically means

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Executive summary

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Ashmi Investment Limited sued for a permanent injunction restraining Riakina Limited from evicting, trespassing on or interfering with its possession of L.R. Numbers 29955 and 29957 off Mombasa Road, Nairobi, and for a declaration that it was the bona fide owner. Riakina counterclaimed for cancellation of the survey plan F/R No. 391/24 and deed plans 358614-6 relied on by the Plaintiff, a declaration that its own survey plan F/R 285/11 and deed plan 246792 over L.R. No. 24091 were lawful, and an order directing the Chief Land Registrar to issue it a title. The court found a case of double allocation of Un-surveyed Industrial Plot D: both parties held Commissioner of Lands allotment letters dated 28/7/1998. However, only Riakina accepted its offer within 30 days, paid the full demanded sum (Kshs 260,563) in 2001, took possession and began processing title, its deed plan 246792 having been approved in 2003. Ashmi paid a lesser sum (Kshs 174,750) only on 20/2/2013, without explanation for the fifteen-year delay, and processed its title on 4/3/2015 while the suit was pending. The National Land Commission's witness conceded double allocations occurred and the Director of Surveys' records could not trace Riakina's deed plan, which was never lawfully cancelled under Section 33 of the Survey Act. The court held the plot was no longer available for allocation in 2013 and that the Plaintiff's late title processing defrauded the government of revenue. The Plaintiff's suit was dismissed with costs and the 1st Defendant's counterclaim was allowed, with prayers (i), (ii) and (iii) granted.

Key legal issues

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01

Whether there was fraud in the allocation of the Suit Property to the Plaintiff

Holding

Yes - the Plaintiff's file was opened after the 1st Defendant's, the Plaintiff paid less than the demanded sum fifteen years late, and the 1st Defendant's deed plan disappeared at the Lands Office before the Plaintiff's title was processed

Reasoning

The 2nd Defendant's witness confirmed file numbers are issued sequentially; the 1st Defendant's file number 210323 preceded the Plaintiff's 242742. The Plaintiff paid Kshs 174,750 in 2013 against Kshs 258,630 demanded in 1998. The 1st Defendant's deed plan 246792 was never cancelled as required by Section 33 of the Survey Act and Regulation 109 of the Survey Regulations, yet a new survey was authenticated over the same land. The title issued to the Plaintiff in 2015 while the suit was pending was intended to defeat the 1st Defendant's rights.

p. 6
02

Who is the bona fide allottee of the Suit Property

Holding

The 1st Defendant, who accepted the 1998 allotment, paid the full sum demanded in 2001 and took possession

Reasoning

Both parties received letters of allotment over plot D, but only the 1st Defendant accepted within the stipulated period, paid the full stand premium (Kshs 260,563) by 15/10/2001, was issued receipts, fenced the plot and erected a guard house. The Plaintiff produced no evidence of occupation, and its 2013 payment could not constitute acceptance of a 1998 offer requiring acceptance within 30 days.

p. 4
03

Who is in possession of the Suit Property

Holding

The 1st Defendant, which fenced the plot and erected a guard house and boundary wall

Reasoning

The 1st Defendant produced photographs of the Suit Property and the fence it erected, and developed it with a boundary wall after payment. The Plaintiff provided no evidence of occupation. Possession was therefore proved on a balance of probabilities by the 1st Defendant.

04

Lawfulness of the Director of Surveys' cancellation/replacement of the 1st Defendant's deed plan

Holding

The 1st Defendant's deed plan was never lawfully withdrawn or cancelled, so the subsequent survey creating the Plaintiff's parcel was irregular

Reasoning

Under Section 33 of the Survey Act and Regulation 109 of the Survey Regulations of 1994, the Director of Surveys may cancel deed plan authentication only in defined circumstances and must cancel any withdrawn deed plan and notify the registered owner, the surveyor and the land registrar. No such cancellation or notification occurred; the Director merely stated the plans could not be traced.

p. 5

Legal principles established

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  • Once land is allotted to one person who pays the requisite fees and takes possession, it is not available for allocation to another
  • Parties must not alienate or deal with suit property during the pendency of litigation (lis pendens)
  • Before cancelling a deed plan, the Director of Surveys must notify the registered owner, the surveyor and the land registrar under Section 33 of the Survey Act
  • Payment of a sum less than that demanded in a letter of allotment defrauds the government of revenue

Court orders

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  1. 1.The Plaintiff's suit is dismissed with costs
  2. 2.The 1st Defendant's counterclaim is allowed and prayers (i), (ii) and (iii) of the counterclaim are granted
  3. 3.A declaration that survey plan F/R No. 391/24 (computation number 64318) in respect of L.R. Numbers 29955, 29556 together with deed plan numbers 358614, 358615 and 358616 issued by the Director of Surveys are unlawful and fraudulent and ought to be cancelled
  4. 4.A declaration that the 1st Defendant's survey plan F/R number 285/11 (computation number 41474) in respect of L.R. No. 24091 together with deed plan number 246792 is legal
  5. 5.An order that the Director of Surveys amend the survey records accordingly and an order directing the Chief Land Registrar to issue a title to the 1st Defendant in respect of L.R. Number 24091, file number 210323, F/R number 285/11, computation number 41474, deed plan number 246792

Authorities

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Legislation

  • Survey ActSection 33
  • Survey Regulations of 1994Regulation 109

Cases cited (2)

  • Rose Wakanyi Karanja & 3 Others (Suing as the legal representatives of the Estates of the late Walter Karanja Muigai) V. Geoffrey Chege Kirundi
    Civil Appeal No. 172 of 2010
  • Benja Properties Limited v Syedna Mohammed Burhannudin Sahed & 4 Others
    [2015] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (Environment and Land Court Act), Civil Suit No. ELC 646 of 2014

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ashmi Investment Limited v Riakina Limited & another [2017] KEELC 1761 (KLR)", Case Analysis (2017). Civil Suit No. ELC 646 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1761/eng@2017-09-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.