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ELCPartially AllowedNot stated in the extract· [2020] KEELC 1457 (KLR)

Bencaster Investments Ltd v John Murithi & 3 others; Attorney General & 5 others (Interested Parties) [2020] KEELC 1457 (KLR)

Environment and Land Court of Kenya
30 July 2020
SOS. Okong'o
16,467 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~66 min to read original · ~4 min brief

The bottom line

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The court cancelled titles to three Kasarani plots, ruling that land reserved for public use belongs to residents and cannot be sold by developers.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of Nairobi/Block 122/39 at Kasarani, sued the defendants for trespass, seeking a permanent injunction, damages and costs, alleging that in August 2009 they violently invaded the plot, demolished its fence and chased away its workers. The defendants denied the plaintiff's title and counter-claimed that the plot and two related plots (Nairobi Block 122/32 and 122/42) were public utility plots reserved under a subdivision scheme for a playing field/community centre, a church/nursery school and a primary school, which the 4th interested party (City Chicken & Eggs Dealers Co-operative Society) never surrendered to the Nairobi City Commission as required, but instead procured re-allocation, sold to the plaintiff and, in the case of 122/42, to the 5th interested party. Okong'o J held that the subdivision approval was conditional upon surrender of the public-purpose plots; the 4th interested party admitted it never surrendered them, and the purported re-allocation by the Commissioner of Lands was a sham that conferred no valid title. The 4th interested party held the plots in trust, could pass no valid title to the plaintiff, and the plaintiff could pass none to the 5th interested party; the innocent purchaser doctrine could not cure an invalid title. Trespass by the defendants was not proved, and the plaintiff, holding an invalid title, could not sue in trespass. The plaintiff's suit was dismissed; the defendants' counter-claim succeeded. The court ordered permanent injunctions, cancellation of the registrations so the properties revert to the 4th interested party, surrender of 122/39 and 122/42 to the Nairobi County Government free of charge, trust development of 122/32, and costs of suit and counter-claim against the plaintiff and 4th interested party jointly and severally.

Key legal issues

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01

Validity of titles arising from a subdivision scheme with public-purpose surrender conditions

Holding

The re-allocation of the suit properties to the 4th interested party was a sham; it never surrendered them to the Nairobi City Commission as required, held them in breach of the planning law and in trust, and acquired no valid title

Reasoning

The subdivision approval of 20th May 1991 and final approval of 11th November 1991 required Nairobi Block 122/39 and 122/42 to be surrendered to the Nairobi City Commission free of cost, and 122/32 to be developed to the Commission's satisfaction. The 4th interested party admitted it never surrendered them under section 63(1) of the Registered Land Act. It could not apply for re-allocation of land it never surrendered, the City Commission was not involved, and the Government Lands Act procedures on disposal of public land were not followed. The purported re-allocation was therefore a nullity and conferred no valid title.

p. 13
02

Whether the plaintiff and 5th interested party acquired valid titles

Holding

The 4th interested party could not pass a valid title it did not have; the doctrine of bona fide purchaser cannot convert an invalid title into a valid one

Reasoning

Applying nemo dat quod non habet, the plaintiff, having acquired no valid title from the 4th interested party, could not convey valid title to the 5th interested party. The 5th interested party was also not an innocent purchaser without notice, since DW1 gave uncontroverted evidence that he warned its officials before purchase that the plot was reserved for public purposes.

p. 14
03

Whether the defendants trespassed on Nairobi Block 122/39

Holding

Trespass was not proved and the plaintiff, holding an invalid title, cannot maintain an action in trespass

Reasoning

Title to land carries legal possession; the plaintiff's title being invalid, it had no right to possession. On the evidence, the court was not satisfied the defendants were involved in the alleged invasion, noting they were not arrested or charged despite the alleged assault on police officers.

p. 15
04

Trust over public-purpose plots for residents

Holding

Plots reserved for public purposes in a subdivision scheme benefit the residents of the resulting subplots, not the developer or its members, and the 4th interested party held the suit properties as trustee

Reasoning

The court noted a dangerous trend of developers selling or developing public utility plots they never surrendered. The defendants led uncontroverted evidence that 98% of residents were not members of the co-operative. The 4th interested party held 122/39 and 122/42 in trust for the Nairobi City Commission and residents, and 122/32 in trust for the residents.

p. 13

Legal principles established

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  • Public utility plots reserved under an approved subdivision scheme are for the benefit of the residents of the area and must be surrendered as required; a party that fails to surrender holds them in trust
  • Validity of title depends on the legality of the process of acquisition; an invalid title cannot be transferred to a purchaser

Court orders

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  1. 1.The plaintiff's suit is dismissed.
  2. 2.A permanent injunction restraining the plaintiff, its agents, employees or anyone claiming through it from selling, transferring, developing, using or interfering with Nairobi Block/122/39.
  3. 3.A permanent injunction restraining the 5th interested party, its agents, employees or anyone claiming through it from selling, transferring, developing, using or interfering with Nairobi Block/122/42.
  4. 4.The National Land Commission and the Chief Land Registrar shall cancel the plaintiff's registration of 18th May 2007 as proprietor of Nairobi Block/122/32 and 122/39 and the certificates of leases issued, so the properties revert to the 4th interested party.
  5. 5.The National Land Commission and the Chief Land Registrar shall cancel the plaintiff's registration of 24th August 2007 and the 5th interested party's registration of 29th July 2009 as proprietors of Nairobi Block/122/42 and the certificate of lease issued to the 5th interested party, so the property reverts to the 4th interested party.
  6. 6.The 4th interested party shall surrender Nairobi Block/122/39 and 122/42 to the Nairobi County Government free of charge, to be held in trust for the residents of City Chicken Farm, Kasarani for the public purposes for which they were reserved.
  7. 7.The 4th interested party shall hold Nairobi Block/122/32 in trust for the residents of City Chicken Farm, Kasarani and develop it for the purposes for which it was reserved.
  8. 8.The defendants shall have the costs of the suit and counter-claim, paid by the plaintiff and the 4th interested party jointly and severally.

Authorities

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Legislation

  • Registered Land Actsection 63(1); section 28(c)
  • Government Land Actprovisions on disposal of Government land
  • Land Planning ActChapter 303 (now repealed)
  • Town Planning ActChapter 134 (now repealed)
  • Development and Use of Land (planning) Regulations of 1961Regulations 11, 16, 21, 25
  • Registration of Titles Actsection 44(1)
  • Trustee Actdefinitions of trust and trustee

Cases cited (15)

  • Said Bin Seif v Sharriff Mohamed Shatry
    (1940) 19 (1) KLR 9
  • Anthony Milimu Lubulellah v County Government of Kakamega & Another
    [2019] eKLR
  • National Land Commission v Afrison Export Import Limited & 10 others
    [2019] eKLR
  • Mwinyi Hamisi Ali v Attorney General & Another
    [1997] eKLR
  • Erick Omondi Anyanga v National Social Security Fund Board
    [2003] eKLR
  • Kenya Industrial Estates Limited v Anne Chepsiror & 5 others
    [2015] eKLR
  • Republic v Commissioner of Lands & 4 others ex parte Associated Steel Limited
    Misc. Civil Suit No. 273 of 2007
  • Daudi Kiptugen v Commissioner of Lands & 4 Others
    [2015] eKLR
  • Milankumar Shah & 2 others v The City Council of Nairobi & another
    Nairobi High Court Civil Suit No. 1024 of 2005 (O.S)
  • John Gitiba Buruna & Another v Jackson Rioba Buruna
    Civil Appeal No. 89 of 2003
  • Juletabi African Adventure Limited & another v Christopher Michael Lockley
    [2017] eKLR
  • Twalib Hatayan Twalib Hatayan & Anor v Said Saggar Ahmed Al-Heidy & Others
    [2015] eKLR
  • Macfoy v United Africa Co. Ltd.
    (1961) 3 ALL E.R 1169
  • African Line Transport Co. Ltd. v The Hon. Attorney General
    Mombasa HCCC No. 276 of 2003 (unreported)
  • Gitwany Investments Limited v Tajmal Limited & 3 others
    [2006] eKLR
Jurisdiction invoked
Original civil suit and counter-claim in land matters (first-instance trial; partial hearing before Nyamweya J continued before Okong'o J by consent)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bencaster Investments Ltd v John Murithi & 3 others; Attorney General & 5 others (Interested Parties) [2020] KEELC 1457 (KLR)", Case Analysis (2020). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1457/eng@2020-07-30

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