Bahati Properties Limited v Attorney General & 7 others (Environment & Land Case 31 of 2015) [2019] KEELC 5109 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether Kwale/Diani Beach/block/59 and Kwale/Diani beach block/149 are the same parcel
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
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.
Whether the Plaintiff existed as at the time of the transfer from Prince Sadruddin Aga Khan
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
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.
Whether the Commissioner of Lands had power to allot Plot 149 to the 2nd – 6th Defendants
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
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.
Whether the 2nd – 7th Defendants' claim of ancestral occupation was made out
No - the claim was doubtful and uncorroborated; the 2nd Defendant did not live on the land and no other occupier testified
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.
Legal principles established
#- 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
#- 1.Judgment entered for the plaintiff as per prayers (a) to (k) of her plaint
- 2.Each party to bear own costs
- Jurisdiction invoked
- Original civil suit (land dispute) filed by Plaint dated 16th February 2015; specific enabling provision not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.