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ELCPartially AllowedNot stated in judgment (Amended Plaint filed 23/5/2017; Amended Defence and Counterclaim filed 26/9/2017)· [2018] KEELC 4880 (KLR)

Teleposta Pension Scheme Registered Trustees v Mvita Development Investment Limited (Environment and Land Case Civil Suit 1259 of 2003) [2018] KEELC 4880 (KLR)

Environment and Land Court
26 July 2018
4,238 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Nairobi court ruled that a landowner's title deeds trump unproven road claims: no access road existed across the plots, so the County got nothing.

What this practically means

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Executive summary

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The Plaintiff, Teleposta Pension Scheme Registered Trustees, was vested with L.R. Nos. 209/3083 and 209/3084 by Gazette Notice No. 154 of 1999 to discharge pension liabilities, and new certificates of title (L.R. Nos. 209/14990/3 and 209/14990/4) were issued to it in 2002. In 2003 the Defendant threatened to construct an access road through the two plots to reach L.R. No. 209/11872, which it had bought from St. George's Secondary School. The Plaintiff sued for a declaration that no access road was ever registered as passing between its plots; the Defendant counterclaimed for Kshs. 18,887,707.40 in increased development costs and Kshs. 9.5 million spent buying an adjacent parcel for access. The court framed five issues. Survey evidence showed that although F/R 312/189 of 1996 designated an access road (L.R. No. 209/3083/1) for surrender, no surrender of deed plans was ever effected, no compensation was paid to KPTC, and the waiver of compensation was not proved; the final survey plan showed no road. The Plaintiff held indefeasible titles under Section 23 of the Registration of Titles Act with no easement endorsed, and the Defendant could not rely on overriding interests under the repealed Registered Land Act. The Defendant should have purchased access or pursued compulsory acquisition. Judgment was entered for the Plaintiff, the counterclaim was dismissed, and costs were awarded to the Plaintiff.

Key legal issues

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01

Whether an access road had been excised from the Plaintiff's parcels before transfer to the Plaintiff

Holding

No. The evidence from the survey plans showed the road portions were designated 'for surrender' but no surrender was ever effected, and the final survey plan F/R 317/62 showed no road between the Plaintiff's plots.

Reasoning

F/R No. 312/189 of 1996 created L.R. No. 209/3083/1 as an access road but its inset showed plots 3083 and 3084 existed as a joint plot without a road, and the road portions were marked for surrender. No surrender of deed plans was proved and no compensation to KPTC was shown. F/R 317/62, the last plan, showed no road. Hence no road was excised before vesting.

p. 7
02

Whether the Defendant was entitled to a right of way through L.R. No. 209/3083/1

Holding

No. The Plaintiff held indefeasible certificates of title under Section 23 of the Registration of Titles Act with no easement endorsed, and the Defendant failed to prove any overriding right of way.

Reasoning

The titles issued on 12/11/2002 carried no easement or restriction. The Defendant's argument based on overriding interests under Section 30 of the (repealed) Registered Land Act failed because the Plaintiff's certificates were issued under the Registration of Titles Act, not the Registered Land Act. The Defendant also never obtained the Plaintiff's consent, paid compensation, or pursued compulsory acquisition.

p. 7
03

Whether the Defendant was entitled to damages for denial of access

Holding

No. Having failed to establish any right of way, the Defendant's counterclaim for increased construction costs and the cost of buying alternative access necessarily failed.

Reasoning

The Defendant claimed Kshs. 18,887,707.40 comprising escalation of construction costs and Kshs. 9.5 million spent purchasing an adjacent parcel for access. Because the Defendant could not prove entitlement to the access road through the Plaintiff's land, the Plaintiff's denial of access was not unlawful and no damages arose. The counterclaim was dismissed with costs.

p. 7

Legal principles established

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  • Certificates of title issued under the Registration of Titles Act are conclusive evidence of absolute and indefeasible ownership subject only to encumbrances endorsed on the title; a party claiming a right of way must prove it was created and endorsed or properly excised.
  • Where survey plans indicate portions are 'for surrender', the surrender must be proved; absent evidence of surrender of deed plans by the registered proprietor, no access road is taken to have been excised.
  • A party seeking access over another's land must either purchase it on a willing buyer willing seller basis or pursue compulsory acquisition in accordance with the law.

Court orders

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  1. 1.A declaratory order that no access road was ever registered as passing between L.R. Nos. 209/14990/3 and 209/14990/4 (reliefs sought in the Amended Plaint dated 22/5/17 granted)
  2. 2.The Defendant's counterclaim is dismissed
  3. 3.Costs of the suit and counterclaim awarded to the Plaintiff

Authorities

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Legislation

  • Survey ActSection 31
  • Registered Land Act (repealed)Section 30
  • Registration of Titles ActSection 23

Cases cited (1)

  • Kenya Power and Lighting Company Limited v. Kipevu Inland Container EPZ Limited
    [2018] eKLR
Jurisdiction invoked
Original civil jurisdiction over a land dispute (declaratory order over land and a counterclaim); no specific constitutional or statutory jurisdictional provision cited in the judgment

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, "Teleposta Pension Scheme Registered Trustees v Mvita Development Investment Limited (Environment and Land Case Civil Suit 1259 of 2003) [2018] KEELC 4880 (KLR)", Case Analysis (2018). Not stated in judgment (Amended Plaint filed 23/5/2017; Amended Defence and Counterclaim filed 26/9/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4880/eng@2018-07-26

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