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ELCDismissedPetition dated 19th November, 2013· [2019] KEELC 2625 (KLR)

York Worldwide Holdings Limited v Kenya Forest Service & another; Friends of Karura Community Forest Association (Interested Party) [2019] KEELC 2625 (KLR)

Environment and Land Court
4 July 2019
6,359 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that titles over Karura Forest land were invalid because the land was never legally removed from the forest, so the buyer lost everything.

What this practically means

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Executive summary

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The petitioner, a company claiming to have purchased three parcels of land (L.R Nos. 20851, 20852 and 20853) in December 2002 from Masai Villas Ltd, Sian Enterprises Ltd and Star Prime Ltd, petitioned the court claiming that the suit properties had been created from land lawfully excised from Karura Forest and that it held indefeasible titles. It complained that the Ndungu Commission's recommendation for revocation of its titles was discriminatory and unprocedural, and that the 1st respondent's erection of a perimeter fence around the properties without notice violated its rights to property, fair administrative action and non-discrimination under Articles 40, 47 and 27 of the Constitution. It sought declarations, injunctions and damages. The respondents countered that the land was part of a gazetted forest whose excision was never completed, since after the 28-day gazette notice of intended boundary alteration, USAID declined the allocation and no gazette declaration excluding the land was issued; the titles were therefore void ab initio. The court held that the burden lay on the petitioner to prove degazettement, which it failed to discharge. The initial allocations were unlawful, the allottees had nothing to transfer, and the petitioner's titles were invalid, null and void; Article 40(6) does not protect unlawfully acquired property. The fencing was a lawful exercise of the 1st respondent's forest management mandate, and no discrimination was established, the Ndungu Commission's recommendations not being binding. The petition dated 19th November 2013 was dismissed with costs to the respondents.

Key legal issues

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01

Validity of titles created from land illegally excised from a gazetted forest

Holding

The excision of 8.1 hectares from Karura Forest was never completed by a gazette declaration altering the forest boundary; the land remained forest land, could not be alienated, and the petitioner's titles were invalid, null and void.

Reasoning

Under the repealed Forest Act, alteration of a forest boundary required a 28-day gazette notice followed by a declaration in the Gazette. Only the 28-day notice was issued; USAID declined the land and the process aborted. The allottees therefore obtained no valid interest and had nothing to transfer to the petitioner, a purported bona fide purchaser for value.

p. 8
02

Whether the petitioner's Article 40 right to property was violated

Holding

No violation; Article 40(6) does not extend protection to property acquired unlawfully.

Reasoning

The constitutional and statutory protection of title cited by the petitioner applies only to property lawfully acquired. Having found the titles void ab initio, the petitioner had no valid proprietary rights capable of protection and could not claim arbitrary deprivation.

p. 8
03

Whether the right to fair administrative action under Article 47 was breached by fencing off the suit properties

Holding

No breach; the 1st respondent was protecting and managing Karura Forest and had no notice of any lawful interest of the petitioner.

Reasoning

The petitioner never took possession of the land and produced no evidence that the 1st respondent was aware of its interest. The court declined to fault the respondent for fencing forest land, and distinguished the self-help concerns in Chemey Investment since no force or violence was used against the petitioner.

p. 9
04

Whether the Ndungu Commission's recommendations discriminated against the petitioner contrary to Article 27

Holding

No discrimination established; the Commission found the entire 8.1 hectares illegally excised and there was no evidence its recommendation favouring ICRAF was implemented.

Reasoning

The Commission was within its mandate to make recommendations, which were not binding on the respondents. ICRAF was not joined as a party, so the circumstances of the recommendation could not be interrogated in detail.

p. 9

Legal principles established

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  • Where land is shown to be gazetted forest, the burden shifts to the party asserting alienation to prove degazettement
  • Sanctity of title does not protect titles obtained illegally or fraudulently; neither statute nor the Constitution protects an invalid title

Court orders

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  1. 1.The petition dated 19th November, 2013 is dismissed
  2. 2.Costs of the petition awarded to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23(1), 24, 27, 40, 40(6), 47, 50, 60(1)(b), 62(4), 165(3)(b)
  • Constitution of Kenya (repealed)Section 75
  • Registration of Titles Act, Chapter 281 (repealed)Section 23(1)
  • Forest Act, Chapter 385 (repealed)Procedure for degazettement of forest land
  • Land Registration Act, 2012Sections 25 and 28
  • Forest OrdinanceProclamation No. 44 of 30th April, 1932; Legal Notice No. 174 of 20th May, 1964

Cases cited (23)

  • Patrick Musimba v National Land Commission & 4 others
    (2015) eKLR
  • Vekariya Investments Ltd. v Kenya Airports Authority & 2 others
    [2014] eKLR
  • Evelyn College of Design Ltd. v Director of Children's Department & another
    [2013] eKLR
  • Joseph N. K. Arap Ng'ok v Moijo Ole Keiwua & 4 others
    (1997) eKLR
  • Samuel Murimi Karanja & 2 others v Republic
    (2003) eKLR
  • Shalein Masood Mughal v Attorney General & 5 others
    [2014] eKLR
  • Multiple Hauliers East Africa Ltd. v Attorney General & 10 others
    [2013] eKLR
  • Rose Wangui Mambo v Limuru Country Club & 17 others
    [2014] eKLR
  • Munyu Maina v Hiram Gathiha
    Nyeri C.A No. 239 of 2009 [2013] eKLR
  • Norbixin Kenya Ltd v Attorney General
    Nairobi HCCC No. 1814 of 2002
  • Kenya National Highways Authority v Shalien Masood Mughal
    Nairobi CA No. 327 of 2014
  • Adan Abdirahani Hassan & 2 others v Registrar of Titles, Ministry of Lands & 2 others
    [2013] eKLR
  • Cycad Properties Ltd. v Attorney General & others
    H.C Petition No. 70 of 2010
  • R v Registrar of Lands, Kilifi ex parte Daniel Ricci
    (2013) eKLR
  • Funzi Island Development Ltd & 2 Others v County Council of Kwale
    (2014) eKLR
  • Chemey Investment Limited v Attorney General & 2 others
    [2018] eKLR
  • Niaz Mohamed Jan Mohamed v Commissioner for Lands & 4 Others
    [1996] eKLR
  • Republic v Minister for Transport & Communications & 5 Others ex parte Waa Ship Garbage Collectors & 15 Others
    KLR (E&L) 1, 563
  • John Peter Mureithi & 2 Others v Attorney General & 4 Others
    [2006] eKLR
  • Kenya National Highway Authority v Shalien Masood Mughal & 5 Others
    (2017) eKLR
  • Arthi Highway Developers Limited v West End Butchery Limited & 6 Others
    [2015] eKLR
  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR
  • Milan Kumar Shah & Others v City Council of Nairobi & Others
    HCCC No. 1024 of 2005
Jurisdiction invoked
Articles 23(1) and 165(3)(b) of the Constitution

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, "York Worldwide Holdings Limited v Kenya Forest Service & another; Friends of Karura Community Forest Association (Interested Party) [2019] KEELC 2625 (KLR)", Case Analysis (2019). Petition dated 19th November, 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2625/eng@2019-07-04

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