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ELCDismissedELC Case No. 174 of 2013· [2019] KEELC 2627 (KLR)

Ahmed Osman Bachani v Hellen Naserian Matu & 8 others [2019] KEELC 2627 (KLR)

Environment and Land Court
3 July 2019
KBK. Bor
1,119 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A titled owner in Nairobi failed to evict traders because the land is a road reserve, and the court faulted his failure to inspect before buying.

What this practically means

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Executive summary

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The Plaintiff, registered owner of LR 209/12525, Industrial Area, Nairobi, instituted an Originating Summons dated 5/2/2013 seeking a declaration that the Defendants' occupation was unlawful trespass, their eviction and demolition of structures, a permanent injunction, mesne profits from 2006, damages for trespass and costs. He relied on his title, an official search, photographs of the occupation, and an enforcement notice from the City Council of Nairobi. The 5th Defendant, Benson Mwaura, opposed via replying affidavit, deposing that the Suit Property lies on a road reserve, that the Defendants had occupied it since 1965 under City Council business licences, and that the City Council had in 2007 written to the Commissioner of Lands questioning the allocation of the road reserve. He also raised the pendency of Milimani Chief Magistrates Court Case No. 6877 of 2007 between the previous owner and the same Defendants. The court traced the title history: Reeno Hides and Skins Limited was registered in 1995, charged the land to the Industrial and Commercial Development Corporation, which transferred it to the Plaintiff as chargee on 3/4/2009 for Kshs. 6,300,000/=, during the pendency of the magistrates' court suit. The court found the business permits confirmed the City Council had licensed the Defendants to operate food businesses on the road reserve, and that due diligence by the Plaintiff would have revealed the occupation. The court held that the Suit Property falls on a road reserve, a fact not controverted by the Plaintiff, and declined to grant the orders sought, with each party bearing its own costs.

Key legal issues

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01

Effect of the Suit Property being on a road reserve

Holding

The court declined to grant eviction and injunction orders where the land is a road reserve not controverted by the Plaintiff

Reasoning

The City Council's letter of 21/8/2007 to the Commissioner of Lands confirmed the Suit Property formed part of the road reserve for Workshops Road and was required for future road development. The Plaintiff did not controvert this. The Defendants had been licensed by the City Council to run food businesses on the road reserve, and the court therefore refused the declaratory and coercive relief sought.

p. 3
02

Plaintiff's due diligence as transferee

Holding

Due diligence would have revealed the Defendants' occupation

Reasoning

The Plaintiff acquired the property from the Industrial and Commercial Development Corporation as chargee in 2009 for Kshs. 6,300,000/= during the pendency of prior litigation over the same plot. The business permits showed the City Council licensed the Defendants to operate on Workshop Road, and a purchaser exercising due diligence would have discovered the occupation before completing the transaction.

p. 2

Legal principles established

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  • A purchaser must carry out due diligence before acquiring land; occupation by licensed occupants on a road reserve should have been discovered before purchase

Court orders

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  1. 1.The court declines to grant the orders sought in the Originating Summons dated 5/2/2013
  2. 2.Each party to bear its own costs
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (not expressly 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, "Ahmed Osman Bachani v Hellen Naserian Matu & 8 others [2019] KEELC 2627 (KLR)", Case Analysis (2019). ELC Case No. 174 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2627/eng@2019-07-03

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