Swaminarayan Flats Limited v Attorney General [2018] KEELC 3728 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the suit property was carved out of a road reserve
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.
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.
Whether the Ministry of Roads and Public Works encroached on the suit property
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.
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.
Whether the plaintiff's title was indefeasible and whether it was an innocent purchaser for value
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.
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.
Whether the plaintiff is entitled to compensation
No compensation is payable by the Government; any claim should be directed to the vendor who sold the land.
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.
Legal principles established
#- 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
#- 1.The plaintiff's suit is dismissed with costs to the defendant
- Jurisdiction invoked
- Original civil suit for compensation for land, under the Environment and Land Court's jurisdiction (no specific provision cited)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nubian Human Rights Forum & 4 others v Nairobi Metropolitan Services & 3 others [2022] KEELC 1383 (KLR)[2022] KEELC 1383 (KLR)17 Feb 2022
- Kenya Union of Commercial Food and Allied Workers v British American Tobacco (K) Limited [2018] KEELRC 2115 (KLR)[2018] KEELRC 2115 (KLR)6 Apr 2018applied
Cite this brief
#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.