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ELCDismissedELC Case No. 1607 of 2001· [2019] KEELC 3721 (KLR)

Igainya Limited & 2 others v Geoffrey Karuri Githae & 5 others [2019] KEELC 3721 (KLR)

Environment and Land Court
4 April 2019
3,258 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Buyers of Nairobi public land lost their claim because they couldn't prove the city council's sale had the required Minister's consent or that they ever paid.

What this practically means

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Executive summary

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The three Plaintiffs sued for a mandatory injunction directing the Defendants to give vacant possession of L.R. No. 1/421 along Ngong Road, Nairobi, a declaration that the allocation of part of it to the 5th Defendant was null and void, mesne profits from 1/9/2000, and general damages; in the alternative, a refund of Kshs. 10,000,000/= purchase price with interest. The Plaintiffs traced their title through a conveyance registered on 24/8/2000 following a purchase from the 1st to 4th Defendants, who had acquired the property from Nairobi City Council in July 2000. The 6th Defendant, the Council, denied the validity of the allocation and sale, contending there was no authorising resolution, no Ministerial consent, that the sale was void, and that the land was public land held for its staff housing. The court framed three issues: propriety of the sale and transfer, entitlement to mesne profits, and costs. It found no evidence the Council was ever paid consideration, and that under Sections 144(5) and 144(6) of the Local Government Act the Minister's consent was required for the sale, which the Plaintiffs failed to prove. The Council's continued occupation of the maisonettes confirmed it still required the land for the purposes for which it was acquired, meaning it ought not to have been sold. The Plaintiffs also produced no proof of payment of the purchase price and offered no explanation for the nearly twenty-year delay in prosecuting the suit. The suit was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the sale and transfer of the Suit Property by the 6th Defendant to the 1st-4th Defendants, and onwards to the Plaintiffs, was proper

Holding

Improper; no consideration was proved to have been paid to the Council, no Ministerial consent was shown as required by Sections 144(5) and 144(6) of the Local Government Act, and the property was still required and used by the Council for its purposes.

Reasoning

The court found no evidence that the Council was paid consideration. Under the then Local Government Act, a local authority needed the Minister's consent both to license occupation of its land (s.144(5)) and to sell land it no longer required (s.144(6)). The Plaintiffs proved no such consent. The Council's continued occupation of the maisonettes confirmed it still required the land for the purpose for which it was acquired, so it ought not to have been sold.

p. 3
02

Whether the Plaintiffs proved their claim on a balance of probabilities

Holding

No; the claim was dismissed.

Reasoning

The Plaintiffs did not produce evidence of payment of the Kshs. 10 million purchase price. Their advocate confirmed the sale agreement was silent on vacant possession. No explanation was given for the nearly twenty-year delay in prosecuting the suit. The 6th Defendant's challenge to the sale was unrebutted in substance.

p. 4
03

Whether the Plaintiffs are entitled to mesne profits from 1/9/2000

Holding

No; the suit having been dismissed, no mesne profits were awarded.

Reasoning

The Plaintiffs claimed mesne profits as bona fide owners receiving no rent, arguing tenants and the 6th Defendant were trespassers. Since the court found the sale and transfer improper and the Plaintiffs failed to prove their claim, the mesne profits claim necessarily failed.

Legal principles established

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  • A local authority could only sell land it possessed, or license occupation of it, with the consent of the Minister for Local Government; a sale without such consent is improper.
  • Land retained and used by a local authority for the purposes for which it was acquired ought not to have been sold under Section 144(6) of the Local Government Act.

Court orders

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  1. 1.The Plaintiffs' suit is dismissed
  2. 2.Each party will bear its own costs

Authorities

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Legislation

  • Law Society Conditions of Saleparagraph 14 (1989 Edition)
  • Local Government ActSection 144(5)
  • Local Government ActSection 144(6)
  • Local Government ActStanding Order number 46 in the Second Schedule
  • Land Registration ActSection 26
  • Land Registration ActSection 25
  • Land ActSection 158
  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 62(2)

Cases cited (1)

  • Republic v Commissioner of Lands and 2 others, Ex parte Associated Steel Limited
    [2014] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (as established by statute; the judgment does not expressly cite the constitutional provision)

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, "Igainya Limited & 2 others v Geoffrey Karuri Githae & 5 others [2019] KEELC 3721 (KLR)", Case Analysis (2019). ELC Case No. 1607 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3721/eng@2019-04-04

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