Roy Properties Limited & another v Attorney General [2019] KEELC 479 (KLR)

The court traced the history of the suit land and found it was surveyed in 1962 and reserved for the Nairobi-Thika Road expansion with compensation paid to Salopia Limited. The allotment to P.M. Kamau lacked an application, a part development plan, timely acceptance and payment. The speed with which payment, consent, transfer and the request for additional land were all accomplished on 17/5/1994 pointed to a fraudulent scheme involving lands officials and the 2nd Plaintiff. Under Sections 3 and 85 of the repealed Government Lands Act, road reserve land was not alienable, so the title was invalid.

The leases on which projected loss of rental income was based were not registered and no evidence of rent actually paid was produced; Naivas had suspended its lease citing the road reserve claim. The valuer's report did not show how he arrived at the land value, and the audit and loss-of-profit experts relied on unverified information supplied by the Plaintiffs. The Plaintiffs also could not be compensated twice for land already compulsorily acquired and paid for in 1962, which would be contrary to public interest.

Having found the Suit Property was part of a road reserve compulsorily acquired in 1962, the land was public utility land incapable of valid alienation, justifying cancellation of the 1st Plaintiff's title. However, the Defendant did not adduce proof of the costs it incurred in demolishing the structures, so the claim for those costs failed.

Although the Plaintiffs' title was invalid, the Defendant demolished the buildings in breach of a court order and without strict necessity, as its own surveyor evidence showed only a small strip was needed for the road. The court nonetheless limited recovery to nominal damages given the illegal acquisition, plus refund of the stand premium the 2nd Plaintiff actually paid for the allocation, allowing restitution of money paid to the Government for an invalid allocation.