National Land Commission v Afrison Export Import Limited & 10 others (Environment and Land Case Reference 1 of 2018) [2019] KEELC 2851 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that land already set aside for public schools is public land and Kshs. 1.5 billion paid for it was an irregular loss of public funds.
What this practically means
#Executive summary
#Key legal issues
#Whether the land occupied by Drive In Primary School and Ruaraka High School is public or private land
The land is public land; the 1st and 2nd Interested Parties' title is held subject to the Government's interest in the surrendered public amenity plots, which crystallised on approval and implementation of the subdivision scheme.
The court found that Drive In Estate Developers Limited, the owners' agent, formally confirmed surrender of the public utility plots on 4/7/1984; the schools have stood on the land for over thirty years without objection; survey plans approved in 1985 showed the plots; and the subdivision scheme was implemented on the ground through roads, schools and other developments. The failure to execute a registered surrender instrument could not defeat the public purpose.
Whether the compulsory acquisition met the public purpose threshold and caused loss of public funds
The acquisition did not meet the threshold of public purpose; one cannot compulsorily acquire what is already public land, and the payment of Kshs. 1.5 billion occasioned loss of public funds.
The Applicant failed to follow the elaborate procedure in Part VIII of the Land Act: no notice of inquiry was published, no public inquiry held, the register entry was belated and irregular, and the compensation figure was set before valuation. Had due diligence been conducted, the Applicant would have discovered the prior surrender. The Ministry of Education was misled into an unnecessary acquisition.
To whom compensation is payable and the validity of payment to Whispering Palms Estate Limited
Compensation is payable to the person determined to be entitled, or a duly appointed statutory agent; the payment to Whispering Palms Estate Limited was irregular.
Sections 111 and 115 of the Land Act require payment to persons determined to be interested in the land, with funds deposited in a special compensation account where payment cannot be made. No legal instrument appointed Whispering Palms Estate Limited as statutory agent, the company had no interest in the land, and encumbrances such as the mortgage to Continental Credit Finance Limited were not discharged before payment.
Timing of references under Sections 127 and 128 of the Land Act
References may be brought at any time since Parliament prescribed no time limits, though a reference ought to be made timeously.
Sections 127 and 128 impose no temporal limits. Issues requiring the court's determination may arise after the Applicant has pronounced itself. Shutting the court's doors would be imprudent. However, moving the court after compensation has been paid may serve little purpose since recovery of dissipated public funds is difficult.
When possession of compulsorily acquired land should be taken
Under Section 120(1) of the Land Act, possession follows the award, payment of compensation and service of a notice of possession; none of this was done.
The Applicant did not serve any notice upon those interested in the land as required by Section 120(1). Since the two schools were already in occupation, the statutory provisions were not followed.
Whether a registry search is conclusive evidence of proprietorship
A search is not conclusive; further steps, including checking the public land register and overriding interests, are required.
Two searches from the same registry in the same year showed contradictory encumbrance entries, demonstrating the records can be manipulated. Due diligence under Part VIII of the Land Act, including Section 119 and the register of public land under Section 8(2), and overriding interests under Section 28 of the Land Registration Act, requires more than a search.
Legal principles established
#- Once a subdivision scheme is approved and implemented on the ground, the public utility plots are deemed surrendered for the designated public amenities notwithstanding failure to execute a formal surrender instrument.
- A registered title is held subject to the prevailing physical planning laws and to the State's interest in surrendered public amenity plots.
- References under Sections 127 and 128 of the Land Act may be brought at any time, as no time limits are prescribed.
- Compensation under Part VIII of the Land Act is payable to the person determined to be entitled, or a duly appointed statutory agent, not a general agent.
- A registry search alone is not conclusive evidence of ownership; further due diligence is required.
Court orders
#- 1.Determination that although L.R. No. 7879/4 is registered in the names of the 1st and 2nd Interested Parties, the title is held subject to the interest of the Government in the public amenity plots, including the land on which the two schools sit
- 2.Finding that the two schools sit on public land which could not be the subject of compulsory acquisition under Part VIII of the Land Act
- 3.Determination that compensation is payable only to the person determined to be entitled, or a duly appointed statutory agent, and that the payment to Whispering Palms Estate Limited was irregular
- 4.Finding that the compulsory acquisition did not meet the threshold of public purpose and occasioned loss of public funds of Kshs. 1,500,000,000
- 5.Finding that a search at the lands registry is not conclusive evidence of ownership and further due diligence is required
- 6.Each party to bear their own costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Sections 127 and 128 of the Land Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Land Commission v Afrison Export Import Limited & 10 others (Environment and Land Case Reference 1 of 2018) [2019] KEELC 2851 (KLR)", Case Analysis (2019). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2851/eng@2019-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.