Capri Construction Co. Ltd v Ministry of Lands, Housing & Urban Development & 2 others [2020] KEELC 461 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff holds a good title to the suit property
The plaintiff does not hold good title; the Grant was procured in breach of the law, Government regulations and procedures governing disposal of developed government land, rendering it illegal and a nullity
The property was a developed, committed government asset in the Register of Government Assets since the 1950s, occupied by a government tenant. The State Department evidenced that disposal required compliance with Circular No. 2/58 of 1958 and the Government Financial Regulations and Procedures, and no such procedures or approvals were followed. The plaintiff, aware of the government house on the land, merely waved the Grant and invoked Section 23 of the repealed Registration of Titles Act without demonstrating lawful procurement of the Grant.
Whether the counter-claim has merit
The counter-claim succeeds; the title was procured in violation of the law and relevant regulations and procedures
The State Department of Housing and Urban Development demonstrated that the Grant was illegal, having been processed over committed government land without compliance with the prescribed disposal procedures. The plaintiff adduced no controverting evidence. Accordingly the declarations sought, cancellation of the Grant and registration in favour of the National Treasury on behalf of the Ministry were granted.
Costs
Each party to bear its own costs because the true wrongdoers (the former Commissioner of Lands and Mr Ngetich) were not parties
The court found Mr Mwaita, the then Commissioner of Lands, and Mr Ngetich were the masterminds of the impugned Grant but had been left out of the proceedings. Since they would have been the proper parties to bear costs or damages, the court ordered each party to bear its respective costs of the suit and counter-claim.
Legal principles established
#- A registered proprietor whose root of title is under challenge must go beyond the instrument of title and prove the legality of the acquisition
- Sanctity of title is not a vehicle for fraud, illegality or unjust enrichment at public expense
- Developed and committed government land is not available for alienation by the Commissioner of Lands
Court orders
#- 1.The plaintiff's suit against the defendants is dismissed for lack of merit
- 2.It is declared that the registration and issuance of Grant No IR 90968 in which Land Reference Number 209/14992 is comprised are illegal, irregular and nullities
- 3.The Chief Land Registrar is directed to cancel the said Grant and register the property in the name of the Principal Secretary for National Treasury, to hold the same on behalf of the Ministry of Lands, Housing and Urban Development
- 4.Parties shall bear their respective costs of the suit and counter-claim
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit property (land dispute); specific provision not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Capri Construction Co. Ltd v Ministry of Lands, Housing & Urban Development & 2 others [2020] KEELC 461 (KLR)", Case Analysis (2020). Not stated in the extract (Environment and Land Court suit, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/461/eng@2020-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.