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ELCPartially AllowedELC Case No. 633 of 2014· [2019] KEELC 2644 (KLR)

Bhanumati Ishwarlal Ghadialy v Thomas Maseki Maera & another [2019] KEELC 2644 (KLR)

Environment and Land Court
2 July 2019
KBK. Bor
2,366 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Nairobi court cancelled a land allocation made over a leaseholder's property, ruling she had a right to expect her expired lease would be renewed.

What this practically means

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Executive summary

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The plaintiff, Bhanumati Ishwarlal Ghadialy, claimed she and her late husband purchased L.R. No. 209/2239 Nairobi in 1971 under a 99-year lease from 1902. Her brother-in-law, an advocate, allegedly applied for extension of the lease before it expired in 2002, but the application could not be traced as the lands file went missing. On 4/1/2014 the building on the property was demolished after the 1st Defendant was allocated the land by the Commissioner of Lands on 16/8/2011, with the land reference number changed to L.R. No. 209/20173 and the deed plan changed. The plaintiff sought declarations that she remained the registered owner, that the conversion and the grant to the 1st Defendant were illegal and void, cancellation of the grant, a mandatory injunction to vacate and a permanent injunction. The 1st Defendant maintained the lease had expired, reverting to Government, and that he was lawfully allocated the property after paying requisite charges. The 2nd Defendant denied the claim and argued the plaintiff had not proved fraud and should have joined the NLC. The court found the 1st Defendant gave contradictory evidence about how he learnt of the property, failed to produce searches or evidence explaining the change of land reference and deed plan numbers, and had initiated BPRT proceedings against a person who was not his tenant. The plaintiff had complied with her lease terms and held a legitimate expectation of renewal. The court found the plaintiff proved her case on a balance of probabilities and granted prayers a to g of the plaint. General damages were declined for want of evidence of the value of the demolished structure. Costs of the suit were awarded to the plaintiff, to be borne by the 1st Defendant.

Key legal issues

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01

Validity of the 1st Defendant's title obtained over the Suit Property

Holding

The grant to the 1st Defendant was tainted by irregularity; the plaintiff's case was proved on a balance of probabilities

Reasoning

The 1st Defendant gave contradictory evidence on how he learnt of the expiry of the plaintiff's lease and the source of the land reference number. He did not produce the searches he claimed to have carried out, nor evidence of any resurvey explaining the change of the land reference and deed plan numbers. The letter of allotment bore the original number, and it is unknown how details changed thereafter, pointing to complicity of lands officials.

p. 3
02

Whether the plaintiff had a legitimate expectation of renewal of her expired lease

Holding

The plaintiff had a legitimate expectation that her lease would be extended as she had not been shown to have breached the lease terms

Reasoning

Relying on the procedure for renewal of expired leases under the Government Lands Act, the court found the plaintiff had complied with the lease terms including payment of rent and rates. No evidence showed non-compliance disentitling her to extension. The court inferred the missing renewal application may have been withheld by lands officials who instead prompted the 1st Defendant to apply for allocation.

p. 3

Legal principles established

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  • A former holder of a government leasehold title who has complied with the terms of the lease has a legitimate expectation of renewal of the lease
  • A party challenging an allocation must show how the land details and title over the suit property changed; contradictory and unproven explanations undermine the validity of the title

Court orders

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  1. 1.The court grants prayers a, b, c, d, e, f and g of the plaint dated 21/5/2014
  2. 2.The court declines to award the Plaintiff general damages because no evidence was adduced on the value of the Plaintiff's structure that was on the Suit Property which was demolished
  3. 3.The Plaintiff is awarded the costs of this suit to be borne by the 1st Defendant

Authorities

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Legislation

  • Government Lands ActSections 3, 7 and 12
  • Land ActSection 9

Cases cited (1)

  • Kenya Industrial Estates Limited v Ann Chepsiror and 5 others
    [2015] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land title and leases (Environment and Land Court Act)

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, "Bhanumati Ishwarlal Ghadialy v Thomas Maseki Maera & another [2019] KEELC 2644 (KLR)", Case Analysis (2019). ELC Case No. 633 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2644/eng@2019-07-02

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