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ELCDismissedELC No. 20 of 2017· [2020] KEELC 1069 (KLR)

Westward Properties Limited v Chezer Investments Limited [2020] KEELC 1069 (KLR)

Environment and Land Court
24 September 2020
2,804 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This first-instance judgment of the Environment and Land Court at Milimani concerned LR No. 209/12231 at the intersection of Uhuru Highway, Museum Road and Harry Thuku Road, Nairobi. The Defendant had used part of the land as a parking lot for Boulevard Hotel since 1972, holding a licence from the Commissioner of Lands from 1st May 1976 at an annual rent of Kshs. 4,840/=. The land was registered in 1994 in the name of Jamachar Limited, sold to Soroya Investments Limited and transferred to the Plaintiff in 1997. The Plaintiff sued for a commission of survey, a declaration of encroachment of 0.3037 acres, boundary rectification and mesne profits; the Defendant counter-claimed for revocation of the title, a declaration of adverse possession and transfer. Both claims were withdrawn in 2012 on the ground that the land had been compulsorily acquired, but the Plaintiff successfully had its withdrawal set aside, reviving the litigation. The court framed three issues: the lawfulness of Jamachar Limited's acquisition, adverse possession, and entitlement to reliefs. The court held that the land was a road reserve not available for allocation, so Jamachar Limited's title was illegally obtained and passed no good title to the Plaintiff, who, as a sister company of Soroya Investments Limited, could not claim to be an innocent purchaser for value without notice. The adverse possession claim failed because limitation does not run against the government, and the counter-claim was incompetent for want of a verifying affidavit and was not pursued. Both claims were dismissed with each party bearing its own costs.

Key legal issues

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01

Lawfulness of the allocation of road reserve land to Jamachar Limited

Holding

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.

Reasoning

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.

p. 3
02

Adverse possession claim by the Defendant

Holding

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.

Reasoning

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.

p. 3
03

Entitlement to reliefs

Holding

Neither party was entitled to relief; both the claim and counter-claim were dismissed.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Plaintiff's claim is dismissed
  2. 2.The Defendant's counter-claim is dismissed
  3. 3.Each party to bear its own costs

Authorities

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Cases cited (1)

  • Arthi Highway Developers Limited Vs West End Butchery Limited & 6 Others
    (2015) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes

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, "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.