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ELCPartially AllowedNot stated in the judgment as provided· [2018] KEELC 4879 (KLR)

Ghassim (Suing on behalf of Nyari Residents Welfare Society) v Mzee & 3 others (Environment and Land Case Civil Suit 977 of 2001) [2018] KEELC 4879 (KLR)

Environment and Land Court
26 July 2018
4,765 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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A Nairobi court ruled that plots carved out of a Nyari Estate road reserve were unlawfully allocated, so the buyers hold no good title and must demolish their buildings.

What this practically means

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Executive summary

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The Plaintiff, as Chairman of Nyari Residents Welfare Society, sued to restrain the 1st and 2nd Defendants from constructing on or remaining on Nairobi Block 94/220 and 222, for demolition of any structure, and for cancellation of the leases over the two plots, which he contended were illegally excised from a road reserve and parking/access area serving the Nyari Estate shopping centre. The Defendants claimed to be bona fide purchasers of a lawfully allocated residential plot, relying on a letter of allotment of July 1999 and a certificate of lease issued in 2001, and argued the suit was res judicata given a prior judicial review judgment by Ojwang J. The National Land Commission denied any express or implied condition preserving the spaces, and the County Government denied breaching its development-control duty. Examining survey plans and the part development plan, the court found plots 220 and 222 were created out of a 15-metre road intended to give residents access to the shopping centre. The statutory procedures for allocating government land and for permanently closing a road under the Government Lands Act and Local Government Act were not followed, so the allocation was unlawful and the Defendants held no good title. The prior judicial review judgment was distinguished: it only compelled the Council to consider a development application and made no finding on title, and the residents were not party to it. The court granted prayers 1 and 2 of the Further Amended Plaint - the injunction and demolition - but did not grant the remaining prayers including cancellation of leases, and awarded costs against the 1st and 2nd Defendants.

Key legal issues

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01

Compliance with the Government Lands Act in allocating the suit property

Holding

The Commissioner of Lands acted unlawfully: the plots were already set aside as a road and the statutory allocation procedure was not followed.

Reasoning

Section 3 of the Government Lands Act empowered the President to dispose of unalienated government land, with delegated powers not extending to residential plots of this kind. The court found the plots had been set aside as a 15-metre road serving the shopping centre. Survey plans (F/R 200/74, F/R 256/27) showed plots 220 and 222 were carved from the road reserve, and no evidence of the gazettement, public auction or notice procedure under Sections 9 to 15 was produced.

p. 6
02

Whether the suit property is a road reserve

Holding

Yes - plots 220 and 222 were illegally created out of the road intended to give residents access to the shopping centre.

Reasoning

The court compared survey plans: F/R 200/74 (1990) showed a 15-metre road beside the shopping centre; F/R 256/27 showed plot 220 as part of a road, not residential; the part development plan did not show plots 220 and 222 but showed a road where they were later created. Section 85 of the Government Lands Act protected reserved roads, and the Local Government Act procedure for permanently closing a road was never followed.

p. 8
03

Whether the 1st and 2nd Defendants hold good title

Holding

No - an unlawful allocation confers no good title.

Reasoning

The defendants claimed to be bona fide purchasers for value from the original allottees, but no proof of payment of the consideration or of the stand premium was produced, and the underlying allocation itself was unlawful because the land was road reserve. Since the root of the title was defective, the certificates of lease issued to the defendants did not confer good title over plot 220.

p. 8
04

Res judicata arising from the judicial review judgment of Ojwang J

Holding

The suit is not res judicata; the judicial review case only dealt with the Council's duty to consider a development application.

Reasoning

In Nairobi HC Misc Civil Application No 1358 of 2002, Ojwang J granted mandamus compelling the Director of City Planning to consider the defendants' development plan and prohibition against interference. The court held that no finding was made in that case that plot 220 was residential; the residents were not parties; and there was no evidence the Council ever approved the development after the order, nor that a development permission under Section 33 of the Physical Planning Act was ever produced.

p. 7
05

The City Council/County's development control duty

Holding

The Council was entitled, and obliged, to reserve open spaces and could refuse development permission over land required to be reserved.

Reasoning

Section 29 of the Physical Planning Act empowered the Council to control development and, under Section 29(f), to reserve and maintain land planned for open spaces. Section 33 gave the Director discretion to refuse development permission; approval was not automatic. The defendants produced no development permission, and the Council had in fact stopped the construction and prosecuted the 1st Defendant in the City Court.

p. 7

Legal principles established

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  • Land already alienated or set aside as a road for public use is not available for alienation by the Commissioner of Lands.
  • Public roads may only be closed permanently by following the statutory procedure; where this is not done, allocations of the road land are unlawful and no good title passes.
  • A finding in an unrelated judicial review suit that dealt only with a council's duty to consider a development application does not make later land-title issues res judicata.

Court orders

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  1. 1.Prayers 1 and 2 of the Further Amended Plaint dated July 31, 2017 granted (permanent injunction restraining construction on/remaining on Nairobi Block 94/220 and 222 and demolition of any building constructed thereon)
  2. 2.Costs of the suit awarded to the Plaintiff, to be borne by the 1st and 2nd Defendants

Authorities

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Legislation

  • Government Lands ActSections 3, 9 to 15, 85
  • Physical Planning Act (Cap 286)Sections 29, 29(f), 33
  • Local Government ActSections 182, 185, 192

Cases cited (1)

  • R v City Council of Nairobi, Ex parte Ben Athumani Mungai Mzee and Lydia Nyambura Mungai
    Nairobi HC Misc Civil Application No 1358 of 2002
Jurisdiction invoked
Original civil jurisdiction over a land dispute concerning allocation and title to public land (Government Lands Act; Physical Planning Act; Local Government 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, "Ghassim (Suing on behalf of Nyari Residents Welfare Society) v Mzee & 3 others (Environment and Land Case Civil Suit 977 of 2001) [2018] KEELC 4879 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4879/eng@2018-07-26

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