Westward Properties Limited v Chezer Investments Limited [2020] KEELC 1069 (KLR)
The bottom line
#A Nairobi court threw out both sides' land claims after finding the disputed property was a road reserve that should never have been allocated in the first place.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of the allocation of road reserve land to Jamachar Limited
The property was a road reserve for three key roads and was not available for allocation; Jamachar Limited obtained title illegally and passed no good title to the Plaintiff.
The deed plan of 16th January 1939 showed the land was a government road. The Defendant had occupied part of it on licence from the Commissioner of Lands since 1976 and still paid annual rent. The Plaintiff never sought compensation when part of the land was taken for the Thika Super Highway, indicating awareness of the illegality. Being a sister company of Soroya Investments Limited which purchased from Jamachar, the Plaintiff could not claim to be an innocent purchaser for value without notice.
Adverse possession claim by the Defendant
The adverse possession claim fails because limitation does not run against the government and the Defendant's own case was that it held the land on licence and that the property was a road reserve.
The Defendant had consistently maintained it was a licensee from the government over part of the disputed property and that the land was a road reserve. It pursued revocation of the Plaintiff's title. It could not simultaneously claim ownership by adverse possession of the same land. Further, its submissions disclaimed any claim over the disputed property, rendering the counter-claim an abuse of process.
Entitlement to reliefs
Neither party was entitled to relief; both the claim and counter-claim were dismissed.
The Plaintiff held no good title having not acquired it lawfully from Jamachar Limited, so no reliefs could be granted on its encroachment claim. The Defendant's counter-claim, which it was not pursuing in its submissions, was incompetent for want of a verifying affidavit, and no relief could be granted on it.
Legal principles established
#- Land reserved as a road reserve is not available for allocation, and a title obtained over such land is illegally acquired and passes no good title to a transferee who cannot show innocent purchase for value without notice.
- Limitation does not run against the government, so adverse possession cannot be founded on land held as government/road reserve.
Court orders
#- 1.The Plaintiff's claim is dismissed
- 2.The Defendant's counter-claim is dismissed
- 3.Each party to bear its own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Westward Properties Limited v Chezer Investments Limited [2020] KEELC 1069 (KLR)", Case Analysis (2020). ELC No. 20 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1069/eng@2020-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.