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ELCDismissedELC Case No. 567 of 2015· [2018] KEELC 3728 (KLR)

Swaminarayan Flats Limited v Attorney General [2018] KEELC 3728 (KLR)

Environment and Land Court of Kenya
4 April 2018
3,001 words in judgment
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The bottom line

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A Nairobi company lost its Kshs.92 million claim against the Government because the land it bought was a road reserve and its title was illegally acquired.

What this practically means

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Executive summary

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The plaintiff, Swaminarayan Flats Limited, sued the Attorney General claiming Kshs.92,000,000/- as the market value of LR No.209/12854, together with survey and valuation charges, mesne profits, costs and interest, alleging that the Ministry of Roads and Public Works encroached on the property by constructing a road across it. The property had been bought from Ejupe Company Limited, whose prior constitutional petition over the same encroachment had been dismissed by the High Court in 2010. The court framed four issues: whether the property was created out of a road reserve; whether the Ministry encroached; whether the plaintiff suffered loss and who is liable; and whether the plaintiff was entitled to compensation. Comparing the 1987 survey plan with the 1996 plan creating the property, the court found the property was carved from the road reserve of two converging roads, which is an overriding interest not available for alienation. The Ministry therefore committed no encroachment. Although the plaintiff lost its investment, the court held that its title was illegally acquired and that it was not an innocent purchaser for value, having inspected the land, seen the road, drainage and power lines, and being aware of the failed litigation of its predecessor. Reliance on Virendra Ramji Gudka was rejected as distinguishable. The suit was dismissed with costs to the defendant, with any claim to be pursued against the vendor.

Key legal issues

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01

Whether the suit property was carved out of a road reserve

Holding

The court found, comparing the 1987 and 1996 survey plans, that the suit property was created from land reserved for two roads and was not available for alienation for private use.

Reasoning

The 1987 survey plan did not show the suit property. It was created nine years later at the junction of two roads (25m and 18m) by adding one beacon deep into the reserved land. No evidence of re-planning existed, and even re-planning could not take away a road reserve. A road reserve is an overriding interest not requiring notation in the register.

p. 2
02

Whether the Ministry of Roads and Public Works encroached on the suit property

Holding

No encroachment: the Ministry was at liberty to construct the road on land reserved for a road, and was not bound to follow the old road alignment.

Reasoning

Since the property lay on a road reserve, the Ministry constructing the new road was within its rights and could not be accused of encroaching. The court rejected the plaintiff's surveyor's evidence that the road should have followed the old tarmac road, finding that the question was whether the property was on a road reserve.

p. 2
03

Whether the plaintiff's title was indefeasible and whether it was an innocent purchaser for value

Holding

The title was illegally acquired because the land was a road reserve; the plaintiff, aware of the defect and prior litigation, was not an innocent purchaser for value without notice.

Reasoning

Section 26(1) of the Land Registration Act protects title except where acquired illegally, unprocedurally or through a corrupt scheme. The plaintiff's director inspected the property and saw the road, drainage and power lines; the previous owner had also lost a High Court petition over the same encroachment. The plaintiff proceeded hoping to claim compensation.

p. 3
04

Whether the plaintiff is entitled to compensation

Holding

No compensation is payable by the Government; any claim should be directed to the vendor who sold the land.

Reasoning

The claim was not one of compulsory acquisition since the land lay on a road reserve. The Government cannot compensate a claimant who had notice of the defect or would have discovered it with due diligence. The Virendra Ramji Gudka case was distinguished because there the Government had not proved the land was a road reserve, whereas here the road reserve was clear.

p. 3

Legal principles established

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  • A road reserve is an overriding interest which does not require noting in the register; land reserved for a road is not available for alienation for private use.
  • A registered proprietor's title is indefeasible except where acquired illegally, unprocedurally or through a corrupt scheme, and the law protects only an innocent purchaser for value without notice of defect.
  • The Government cannot compensate a party who had notice of a defect in title, or would with due diligence have discovered it, but proceeded with the transaction hoping to be compensated; such a party must look to its vendor.

Court orders

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  1. 1.The plaintiff's suit is dismissed with costs to the defendant

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Registration of Titles ActCap 281
  • Registered Land ActCap 300

Cases cited (3)

  • Adan Abdirahani Hassan & 2 others v The Registrar of Titles & 2 others
    (2013) eKLR
  • Milan Kumar Shah & 2 Others v City Council of Nairobi and Another
  • Virendra Ramji Gudka & 3 Others v Attorney General
    (2014) eKLR
Jurisdiction invoked
Original civil suit for compensation for land, under the Environment and Land Court's jurisdiction (no specific provision cited)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Swaminarayan Flats Limited v Attorney General [2018] KEELC 3728 (KLR)", Case Analysis (2018). ELC Case No. 567 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3728/eng@2018-04-04

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