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ELCPartially AllowedNot stated in the judgment as reproduced (Plaint dated 16th February 2015)· [2019] KEELC 5109 (KLR)

Bahati Properties Limited v Attorney General & 7 others (Environment & Land Case 31 of 2015) [2019] KEELC 5109 (KLR)

Environment and Land Court of Kenya
27 June 2019
7,580 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Mombasa confirmed the first-registered title to Diani Beach land wins, even against a later official government allocation.

What this practically means

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Executive summary

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The Plaintiff, Bahati Properties Ltd, sued the Attorney General and seven others seeking declarations and rectification orders concerning two rival titles over the same parcel at Diani Beach: Kwale/Diani Beach/block/59 (held by the Plaintiff under a lease from the Crown dating to 1914) and Kwale/Diani Beach/block/149 (allocated to the 2nd – 6th Defendants by letter of allotment dated 5th July 2001 with a certificate of lease issued on 4th October 2006). The court relied on a joint survey report of 30th January 2014 and the testimony of the District Surveyor and Land Registrar, holding that Plot 149 resulted from the 1975 subdivision of Plot 59 following compulsory acquisition of part of it for Diani Beach Road, and that the old title was never surrendered, creating two parallel registers. The court found the plaintiff existed at the time of the 1992 transfer (the change of name from Bahati Leisure Lodge Ltd to Bahati Properties Ltd in 1995 cured any lacuna). Applying the Government Lands Act, Cap. 280 and Benja Properties, the court held the land was alienated private property and unavailable for allotment in 2001; the Commissioner of Lands therefore had no mandate to allocate it. The Defendants' ancestral-occupation claim was uncorroborated. Judgment was entered for the Plaintiff on prayers (a) to (k), but, the confusion having been caused by government officers, each party was ordered to bear its own costs.

Key legal issues

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01

Whether Kwale/Diani Beach/block/59 and Kwale/Diani beach block/149 are the same parcel

Holding

Yes - the survey report and survey and land registry witnesses established that Plot 149 and 150 resulted from the 1975 subdivision of Plot 59, which should have been removed from the register

Reasoning

The joint Survey Report dated 30th January 2014 prepared by B.C Mwanyungu and Herbert Ndolo was relied on by both sides and showed that Plot 149 and 150 resulted from subdivision of Plot 59, Plot 149 being the remainder after compulsory acquisition for Diani Beach Road. DW1 and DW2 testified that upon subdivision Plot 59 ceased to exist and its failure to be removed from the register was an error of the survey department. The old title was never surrendered or cancelled, creating two parallel records for one parcel.

p. 10
02

Whether the Plaintiff existed as at the time of the transfer from Prince Sadruddin Aga Khan

Holding

Yes - the certificate of change of name from Bahati Leisure Lodge Ltd to Bahati Properties Ltd effected on 13th August 1995 explains the entity's existence from the 1992 transfer

Reasoning

The transfer documents for Plot 59 showed the transferee as Bahati Leisure Lodge Ltd; a certificate of change of name serial no C.48177 showed the change to Bahati Properties Ltd on 13th August 1995, and the plot was subsequently registered in the plaintiff's name on 8th July 1999. The certificate of change of name therefore cured the apparent lacuna in the plaintiff's existence in 1992.

p. 10
03

Whether the Commissioner of Lands had power to allot Plot 149 to the 2nd – 6th Defendants

Holding

No - the land was alienated private property under a subsisting lease, not unalienated government land capable of disposition under s.3 of the Government Lands Act

Reasoning

Under the Government Lands Act, Cap. 280, the President could only make grants over unalienated government land, defined as land not leased to any person or in respect of which no letter of allotment had issued. Plot 59 had been leased since 1914 with a certificate of title issued, and remained on the register in 2001 when the letter of allotment to the defendants issued. The land was therefore alienated and unavailable for allotment, following Benja Properties and Gitwany Investment.

p. 13
04

Whether the 2nd – 7th Defendants' claim of ancestral occupation was made out

Holding

No - the claim was doubtful and uncorroborated; the 2nd Defendant did not live on the land and no other occupier testified

Reasoning

The 2nd Defendant who testified admitted he did not live on the land but that his brother did; the brother was not called to testify. The averments of farming were not corroborated by photographic or expert evidence. The plaintiff, by contrast, demonstrated possession through a registered sub-lease to Kencell Ltd with a communication mast erected on the property.

p. 13

Legal principles established

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  • Once property is leased and registered in favour of a private person, it converts from unalienated government land to alienated government land and ceases to be available for allotment or alienation under the Government Lands Act
  • Where the Commissioner of Lands issues two titles over the same parcel, the first in time prevails; the second, though apparently regularly issued, is not absolute or indefeasible

Court orders

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  1. 1.Judgment entered for the plaintiff as per prayers (a) to (k) of her plaint
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Government Lands Act, Cap. 280 Laws of KenyaPreamble; Section 2 (definitions of Government land and unalienated Government land); Section 3
  • Registration of Titles Act, Cap. 281Section 23(1) (quoted within Gitwany Investment)
  • Registered Land ActSection 23(1) (referred to within Gitwany Investment extract)
  • Constitution of Kenya (as contained in Schedule 2 to the Kenya Independence Order in Council, 1963)Sections 204 and 205 (referenced in s.2 GLA definition)
  • Constitution of Kenya (Amendment) Act, 1964Sections 21, 22, 25 and 26 (referenced in s.2 GLA definition)

Cases cited (5)

  • Benja Properties Limited v Syedna Mohammed Burhannudin Sahed & 4 others
    [2015] eKLR
  • Gitwany Investment Limited v. Tajmal Limited & 3 Others
    [2006] eKLR
  • Dr. Joseph N.K. Ng’ok vs Justice Moijo Ole Keiwua and 2 others, C.A. No. 60/1997
    unreported
  • Wreck Motors Enterprises vs Commissioner of Lands, C.A. No. 71/1997
    unreported
  • Faraj Maharus vs J.B. Martin Glass Industries and 3 others, C.A. 130/2003
    unreported
Jurisdiction invoked
Original civil suit (land dispute) filed by Plaint dated 16th February 2015; specific enabling provision not stated 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, "Bahati Properties Limited v Attorney General & 7 others (Environment & Land Case 31 of 2015) [2019] KEELC 5109 (KLR)", Case Analysis (2019). Not stated in the judgment as reproduced (Plaint dated 16th February 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5109/eng@2019-06-27

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