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ELCDismissedELC Civil Case No. 328 of 2012· [2019] KEELC 1184 (KLR)

Irene Wafula Njeru (suit on her own behalf and on behalf of the benefit of the estate of Nahashon Njeru (deceased) v Attorney General [2019] KEELC 1184 (KLR)

Environment and Land Court
9 October 2019
2,703 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a Kileleshwa landowner's claim, ruling the land was actually reserved public land and her title was invalid.

What this practically means

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Executive summary

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The plaintiff, administratrix of the estate of her late husband Nahashon Njeru, sued the Attorney General seeking a declaration that LR No. 209/13028 (Grant No. IR 69998) in Kileleshwa, Nairobi, belonged to the deceased, plus injunctions, eviction, vacant possession, damages for trespass and, in the alternative, Kshs. 30 million being the assessed market value with interest and costs. She traced the title from Esther Rotich (1996) to the deceased (1999) and relied on private surveyors' reports showing encroachment by a block of flats built for the Ministry of Housing. The defendant maintained that the land was public land, part of LR No. 209/3545 reserved in 1950 as a public works maintenance depot, on which police houses and a shopping centre were constructed in 2006-2008, and that no compensation was due. Framing four issues, the court found the suit land was public land forming part of LR 209/3545. The plaintiff failed to show a letter of allotment to the initial grantee or how the title originated, and neither she nor the deceased ever took possession or objected to the 2006 construction. Applying Chemey Investment Ltd v Attorney General and Flemish Investments Ltd, the court held a bona fide purchaser would have made inquiry, that Esther Rotich had no title to pass, and that no rights accrue from illegality. The suit was dismissed with costs to the defendant.

Key legal issues

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01

Whether LR No. 209/13028 is private or public land

Holding

The court found the suit land was public land, part of LR No. 209/3545 reserved for a public works maintenance depot, and that the grant issued over it was designed to defeat that public purpose

Reasoning

The defendant proved the land was reserved as a maintenance depot in 1950 and developed for police housing. The plaintiff produced no letter of allotment to the initial grantee Esther Rotich and could not explain why she or her husband never took possession since 1999 nor objected to construction in 2006. Relying on Chemey Investment and Flemish Investments, the court held a diligent purchaser would have made inquiry, and found the land public.

p. 4
02

Whether the defendant encroached on the plaintiff's land

Holding

The court found no encroachment; the houses stand on LR No. 209/3545, public land

Reasoning

DW1, the project architect, testified the police houses were constructed on LR 209/3545 which belongs to the Government of Kenya and was alienated for public use. The plaintiff's contrary survey reports were by private surveyors, and the court held she should have engaged a government surveyor to establish that LR 209/13028 exists.

p. 4
03

Whether the plaintiff was an innocent purchaser entitled to protection or compensation

Holding

The court distinguished the authorities relied on by the plaintiff, holding the certificate of lease was not regularly issued since the initial grantee had no letter of allotment and thus no title to pass

Reasoning

The authorities relied on by the plaintiff concerned certificates of lease issued regularly. Here there was no allotment letter to Esther Rotich and no evidence of the transaction between her and Nahashon Njeru. She therefore had no title to pass, and the deceased failed to exercise due diligence despite the land being next to a police station and used as a maintenance depot.

p. 4

Legal principles established

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  • No rights and liabilities can accrue to parties as a result of an illegality; a grant over land reserved for public purposes obtained to defeat that public purpose is illegal and confers no compensable title
  • A claimant asserting title must demonstrate the root of the title, including how the initial grantee acquired it; mere registration is not enough

Court orders

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  1. 1.The suit is dismissed with costs to the defendant

Authorities

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Legislation

  • The Survey ActSection 21(2)

Cases cited (7)

  • Aster Holdings Limited vs City Council of Nairobi & 4 Others
    [2017] eKLR
  • Shadrack Kuria Kimani vs Stephen Gitau Nganga & Another
    [2017] eKLR
  • Mike Maina Kamau vs Attorney General
    [2017] eKLR
  • Macffoy vs United Africa Company
  • Chemey Investment Limited vs Attorney General & 2 Others
    [2018] eKLR
  • Athi Highway Developers Limited vs West End Butchery Limited & 6 Others
  • Flemish Investments Ltd vs Town Council of Mariakani
    CA No. 30 of 2015
Jurisdiction invoked
Article 162(2)(b) of the Constitution establishing the Environment and Land Court (land dispute over title to land in Nairobi)

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, "Irene Wafula Njeru (suit on her own behalf and on behalf of the benefit of the estate of Nahashon Njeru (deceased) v Attorney General [2019] KEELC 1184 (KLR)", Case Analysis (2019). ELC Civil Case No. 328 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1184/eng@2019-10-09

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