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ELCPartially AllowedNot stated in the excerpt (Nairobi ELC suit; plaint dated 1/10/2007, amended 11/10/2012)· [2018] KEELC 1286 (KLR)

Joseph Kuria Kiburu v Attorney General [2018] KEELC 1286 (KLR)

Environment and Land Court
15 October 2018
BEB M Eboso
4,839 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's land court cancelled titles over Police Station land but ordered the government to refund the buyer's Kshs 27.4 million with interest.

What this practically means

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Executive summary

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The plaintiff, Joseph Kuria Kiburu, sued the Attorney General seeking declarations that the Government was not entitled to occupy LR No 209/12413 and LR No 209/12722 in Nairobi, orders for demolition of structures, vacant possession, alternatively Kshs 950,000,000 as market value, a refund of Kshs 27,477,234 paid under the allocations, general damages for trespass and conversion, interest and costs. The plaintiff had been allocated the land in 1995 by the Commissioner of Lands and issued Grants IR 65373 and IR 67072, but never took possession because the land hosted Central Police Station facilities and had partly been hived off for the expansion of University Way. The Attorney General, by defence and counterclaim, contended that the land was public utility land reserved for the Police in 1980, was occupied by the Department of Survey and Police, was never planned for alienation (no part development plan was prepared, the Director of Physical Planning having refused), and that allocations of unalienated government land required disposal by public auction under the Government Lands Act. It counterclaimed for cancellation of the titles. The court found the allocation illegal, irregular and procured through the plaintiff's misrepresentation that the land was vacant commercial land, rendering the titles impeachable under Section 23 of the repealed Registration of Titles Act and Section 26 of the Land Registration Act. The declaratory, injunctive, possession and damages prayers were declined, as was the Kshs 950 million claim. The court however ordered a refund of Kshs 27,477,334 with interest at court rate from filing suit, allowed the counterclaim in terms of the declarations of illegality and cancellation of titles, and ordered each party to bear its own costs. Judgment delivered by B M Eboso J on 15 October 2018 at Nairobi.

Key legal issues

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01

Validity of the 1995 allocation and titles over the suit properties

Holding

The allocation and registration were illegal and irregular and the titles are invalid and liable to cancellation

Reasoning

The land was committed public utility land occupied by the Police and Survey of Kenya, reserved for the Police by a 1980 Commissioner of Lands letter. The Director of Physical Planning declined to prepare a part development plan, so no approved PDP supported the alienation. Part III of the Government Lands Act required disposal of unalienated urban government land by public auction, which was not followed. The plaintiff misrepresented the land as vacant and zoned commercial. The misrepresentation renders the titles impeachable under Section 23 of the repealed Registration of Titles Act and Section 26 of the Land Registration Act.

p. 6
02

Whether the plaintiff is entitled to refund of monies paid under the void allocations

Holding

Yes - refund of Kshs 27,477,234 (ordered as 27,477,334) with interest at court rate from filing suit, but no damages or costs

Reasoning

The Government treated the land as unavailable for alienation, so it was under a mandatory obligation to refund the monies received pursuant to the contested allocation; it neither refunded nor tendered the money in court. However, the plaintiff participated in the misrepresentation, so equitable relief is limited to the refund with interest from filing suit, and no costs were awarded.

p. 6

Legal principles established

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  • A title obtained through misrepresentation is liable to impeachment notwithstanding registration
  • Sanctity of title is not a vehicle for fraud, illegality or unjust enrichment at public expense
  • Where allocated land was not available for alienation, the Government has a mandatory obligation to refund monies received

Court orders

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  1. 1.The plaintiff's alternative prayer for refund of Kshs 27,477,334 is allowed and the said sum shall attract interest at court rate from the date of filing suit
  2. 2.The rest of the prayers in the Amended Plaint are declined
  3. 3.The Attorney General's Counterclaim is allowed in terms of prayers (ii) and (iv) of the Counterclaim
  4. 4.Each party shall bear own costs of the suit
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land in Nairobi (Environment and Land Court Act)

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, "Joseph Kuria Kiburu v Attorney General [2018] KEELC 1286 (KLR)", Case Analysis (2018). Not stated in the excerpt (Nairobi ELC suit; plaint dated 1/10/2007, amended 11/10/2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1286/eng@2018-10-15

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