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ELCPartially AllowedELC Civil Suit No. 245 of 2004· [2018] KEELC 1200 (KLR)

Kenya Ports Authority v G. Wayumba & 6 others [2018] KEELC 1200 (KLR)

High Court of Kenya
5 October 2018
LKL. KomingoiAOA. Omollo
1,972 words in judgment
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The bottom line

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The High Court cancelled fraudulent land allocations in Mombasa, ruling that land already given to Kenya Ports Authority could not be reallocated to anyone else.

What this practically means

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Executive summary

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Kenya Ports Authority sued G. Wayumba, F. Okombu trading as Geometer Surveys Limited, the Commissioner of Lands, the District Lands Registrar Mombasa, Wayland Limited, Essam Properties Limited and Kilifi Gardens Limited, seeking declarations that excisions, mergers, subdivision and conversion of its parcels from freehold to leasehold were null and void; revocation of excisions and leases; rectification of registers; a permanent injunction and general damages. None of the defendants entered appearance or filed defences; interlocutory judgment was entered against the 1st-4th defendants, and the 5th-7th defendants, served by advertisement in the Daily Nation on 8th June 2016, also failed to respond, so the suit proceeded by formal proof. The plaintiff's sole witness, George Opiyo, adopted his witness statement and produced exhibits including letters of instruction to Geometer Surveys, leases, searches and rate receipts. The court found that between 1997 and 2002 the surveyors subdivided Mombasa/Block XXVI/263 PT contrary to instructions, resulting in plot 1001 being registered in favour of Wayland Limited, while plots 928 and 508, already owned by the plaintiff and developed with staff houses, were leased to Kilifi Gardens and Essam Properties respectively. Applying sections 3(a) and 9 of the Government Land Act (repealed), the court held that land already alienated is not available for allocation to third parties, and that unauthorised action by the Commissioner of Lands is a nullity. Judgment was entered jointly and severally against all defendants: declarations of nullity and fraud, revocation of the excisions, mergers, subdivisions and leases, rectification of registers, and a permanent injunction. General damages were declined for want of proof of loss. Costs and interest were awarded to the plaintiff.

Key legal issues

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01

Availability for allocation of already alienated public land

Holding

Land already alienated to the plaintiff for public use was not available for allocation to third parties; the subsequent allocations and leases were unlawful

Reasoning

Sections 3(a) and 9 of the Government Land Act (repealed) provide that alienated land ceases to be available for fresh allocation. The parcels in question were already alienated to the plaintiff, developed with staff houses and on which rates were being paid. Allocating them to the 5th, 6th and 7th defendants was therefore unlawful and a nullity.

p. 3
02

Standard of proof in an uncontroverted case

Holding

Even where a case is uncontroverted, the plaintiff must prove it on a balance of probabilities; the court found this standard met

Reasoning

The defendants did not enter appearance or file defences, and judgment was entered interlocutorily with the suit proceeding by formal proof. The plaintiff's sole witness adopted his statement and produced documentary exhibits establishing instructions to surveyors, the fraudulent subdivision and unlawful allocations. On that uncontroverted material the court was satisfied the case was proved on a balance of probabilities.

p. 3

Legal principles established

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  • Once land is alienated it is not available for allocation to any third party
  • An action taken by the Commissioner of Lands without legal authority is a nullity, void and not merely voidable

Court orders

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  1. 1.Declaration that the excision of portions of the plaintiff's original parcels of land is null and void
  2. 2.Declaration that the purported merging of the plaintiff's original parcels of land is null and void
  3. 3.Declaration that the 3rd and 4th defendants acted unlawfully and ultra vires in converting the plaintiff's titles from freehold to leasehold, and that the plaintiff still holds freehold titles
  4. 4.Declaration that the 3rd and 4th defendants acted unlawfully in leasing/registered the 5th defendant as lessee of Mombasa/Block XXVI/1001
  5. 5.Declaration that the leases and registrations of the 7th and 6th defendants over Mombasa/Block XXVI/928 and XXVI/508 respectively are fraudulent and unlawful
  6. 6.Order directing the 4th defendant to revoke all the excisions, mergers, subdivisions and leases
  7. 7.Permanent injunction restraining the 5th, 6th and 7th defendants from interfering with the plaintiff's structures, tenants and buildings on plots Mombasa/Block XXVI/1001, XXVI/928 and XXVI/508
  8. 8.Order to the 4th defendant to rectify the parcel registers in respect of all the plaintiff's parcels
  9. 9.Costs of the suit and interests to the plaintiff

Authorities

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Legislation

  • Government Land Act (repealed)Sections 3(a) and 9
  • Legal Notice No. 19dated 31st May 1969
  • Legal Notice No. 20of 1969
  • Legal Notice No. 21dated 9th June
  • Legal Notice No. 22dated 9th June 1969

Cases cited (3)

  • Henry Muthee Kathurima v Commissioner of Lands & Another
    [2015] eKLR; Meru Civil Appeal No. 8 of 2014
  • Nelson Kazungu Chai & Others v Pwani University College
    Malindi Civil Appeal No. 78 of 2016
  • Said Bin Seif v Shariff Mohammed Shatry
    [1940] 19 (1) KLR 9
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (High Court at Mombasa)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (14)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Ports Authority v G. Wayumba & 6 others [2018] KEELC 1200 (KLR)", Case Analysis (2018). ELC Civil Suit No. 245 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1200/eng@2018-10-05

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