Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially Allowed(Not stated in the judgment)· [2017] KEELC 2278 (KLR)

Registered Trustees Islamia Madrassa Committee v Joseph Muigai Muroki & another [2017] KEELC 2278 (KLR)

Environment and Land Court
20 July 2017
KBK. BOR
1,913 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

The court cancelled a council's sale of public land, confirming that city councils in Kenya cannot allocate government land or road reserves to private parties.

What this practically means

#

Executive summary

#
The Plaintiffs, trustees of Islamia Madrassa Committee running Muslim Girls School, sued in 1998 seeking declarations that they were the rightful owners of a portion of land adjacent to L.R. No. 209/5534 (allotted to them in 1979 by the Commissioner of Lands), that the 2nd Defendant's allocation of that land to the 1st Defendant in 1992 was unlawful, plus permanent injunctions and costs. The Defendants relied on a 1993 cancellation of the Plaintiffs' allotment and a part development plan hiving out part of a disused road reserve, on which plot K was allocated to the 1st Defendant. The suit was heard largely by Justice Ransley between 2004 and 2006; he retired before judgment, and parties filed written submissions before this court. The court identified three issues: ownership of the Suit Property, power to allocate it, and the reliefs to be granted. It found the Suit Property was government land; no evidence showed how it passed to the Council. Under the Local Government Act vesting of roads gave the Council only possession of the surface, not ownership, and road reserves were protected under the Government Lands Act. The Council therefore had no power to allocate the land, and its 1992 allocation to the 1st Defendant - made a year before the Commissioner cancelled the Plaintiffs' allotment citing 'public nuisance' - was declared illegal. However, because the Commissioner of Lands had cancelled the Plaintiffs' 1979 allotment by letter of 12.3.1993 and was not a party, the court declined to declare the Plaintiffs owners of the land. A permanent injunction was issued against the Defendants, and the Plaintiffs, having partially succeeded, were awarded the costs of the suit.

Key legal issues

#
01

Ownership of the Suit Property - Government or City Council

Holding

The Suit Property remained government land; no evidence showed it was transferred to the Council between 1979 and 1992.

Reasoning

It was not disputed that the Commissioner of Lands allocated the Suit Property as government land in 1979. No evidence was tendered showing how it became Council land by 1992. Although the Local Government Act vested control and care of public streets in the Council, vesting conveyed only possession of the surface, not ownership of the land itself.

p. 3
02

Power to allocate the Suit Property

Holding

The 2nd Defendant had no power to allocate the Suit Property; the allocation to the 1st Defendant was illegal.

Reasoning

Under sections 182, 185 and 192 of the Local Government Act the Council only held roads in trust for the public and could close, divert or alter them, but vesting did not transfer ownership. Section 85 of the Government Lands Act protected road reserves from alienation. Only the President or Commissioner of Lands could alienate government land.

p. 4
03

Whether the Plaintiff should receive the reliefs sought

Holding

Partial relief granted: allocation declared illegal and injunction issued, but no declaration of the Plaintiff's ownership.

Reasoning

The Commissioner of Lands had cancelled the Plaintiff's 1979 allocation by letter of 12.3.1993, and the Commissioner was not joined as a party. The court could not declare the Plaintiff owner of the cancelled allotment; its recourse lies in pursuing the successor of the Commissioner of Lands for a fresh allocation for public purposes.

p. 4

Legal principles established

#
  • Vesting of a road in a local authority transfers only possession of the surface, not ownership, and therefore a municipal council has no power to alienate or transfer ownership of a road reserve.
  • Land that is government land cannot be allocated by a local authority; only the President or the Commissioner of Lands (in specified instances) may alienate such land.

Court orders

#
  1. 1.Declaration that the allocation of the Suit Property by the 2nd Defendant to the 1st Defendant is illegal
  2. 2.Permanent injunction restraining the Defendants from dealing with the Suit Property
  3. 3.Costs of the suit awarded to the Plaintiff

Authorities

#

Legislation

  • Local Government Act (now repealed)Section 144
  • Local Government ActSection 85 (as cited in judgment - see dataQualityFlags)
  • Government Lands ActSection 85
  • Local Government ActSection 182
  • Local Government ActSection 185
  • Local Government ActSection 192
  • Government Lands ActSection 3
  • Government Lands ActSection 9
  • Land Act, 2012Section 2
Jurisdiction invoked
Original civil jurisdiction over a land dispute (Environment and Land Court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Registered Trustees Islamia Madrassa Committee v Joseph Muigai Muroki & another [2017] KEELC 2278 (KLR)", Case Analysis (2017). (Not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2278/eng@2017-07-20

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