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ELCPartially AllowedNakuru Municipality Block 19/186 suit (plaint filed 18th November 2010)· [2020] KEELC 2164 (KLR)

Galaxy Realtors Limited v Kenya Forest Service [2020] KEELC 2164 (KLR)

Environment and Land Court
11 June 2020
3,706 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled Galaxy Realtors' title, ruling that land illegally allocated from public forest cannot give anyone a valid title, even an innocent buyer.

What this practically means

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Executive summary

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Galaxy Realtors Limited sued Kenya Forest Service seeking a declaration of sole ownership of Nakuru Municipality Block 19/186 and injunctions, alleging it was a bona fide purchaser for value from Kipkoech Tallam, whose title derived from a 1998 allotment letter by the Commissioner of Lands. Kenya Forest Service counterclaimed, asserting the property was un-alienated forest land forming part of Menengai Forest, never lawfully allocated, and sought cancellation of the plaintiff's title and eviction. The court framed three issues: whether the property was forest land at the date of allotment and sale; whether the plaintiff was a bona fide purchaser; and what reliefs should issue. On the evidence, the allotment (19th February 1998) and the vendor's title (28th January 2000) both predated Legal Notice No. 152 of 2001, which sought to excise 270.5 hectares from Nakuru Forest; the property therefore remained un-alienated public/forest land at allotment. There was no evidence of presidential authorization for alienation, and following Henry Muthee Kathurima, the Commissioner of Lands' action without authority was a nullity. Since the vendor had no valid title to pass, the plaintiff could not be a bona fide purchaser. The plaintiff's suit was dismissed, its title cancelled, and it was ordered to vacate within 45 days, failing which eviction would follow. Kenya Forest Service was awarded costs of both the suit and counterclaim.

Key legal issues

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01

Whether the suit property was forest/public land at the date of allotment

Holding

Yes - the property remained un-alienated government/public land as the de-gazettement notice (Legal Notice No. 152 of 2001) postdated the allotment and title issuance

Reasoning

The allotment was made on 19th February 1998 and the title issued on 28th January 2000, both before the gazette notice of 8th October 2001 which sought to excise 270.5 hectares from Nakuru Forest. As at the relevant dates, the property was un-alienated government land declared a forest area under the Forests Act (Chapter 385). No authorization by the President for alienation was shown.

02

Whether the plaintiff is a bona fide purchaser for value

Holding

No - the vendor had no valid title to pass, so the plaintiff's derivative title is equally invalid

Reasoning

A bona fide purchaser must first acquire a valid and lawful title. Since the allotment to Mr Tallam Kipkoech was a nullity, there was no valid title to pass to the plaintiff. Both titles were issued under the repealed Registered Land Act, and courts have consistently declined to protect titles obtained illegally or fraudulently regardless of registration.

p. 3
03

Whether the reliefs sought by the parties should issue

Holding

The plaintiff's reliefs were unavailable; the defendant's counterclaim for cancellation of title and eviction succeeded

Reasoning

Given the invalidity of the plaintiff's title, cancellation was necessary to sanitize the position so there is no ambiguity that the suit property remains public land. The plaintiff was in part possession, so the defendant was entitled to eviction.

p. 4

Legal principles established

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  • An act that is void is a nullity and no valid title can be founded on it
  • For one to be considered a bona fide purchaser for value, he must first demonstrate that he acquired a valid and lawful title
  • The Commissioner of Lands had no power to alienate public land without authorization and any action taken without due authorization is a nullity
  • It is the cardinal obligation of every purchaser to ensure he gets a good title

Court orders

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  1. 1.The plaintiff's (Galaxy Realtors Limited's) case against the defendant (Kenya Forest Service) is dismissed
  2. 2.The plaintiff's title in respect of Nakuru Municipality Block 19/186 is cancelled
  3. 3.The plaintiff and its servants or agents to vacate the suit property within 45 days from the date of delivery of the judgment, in default, to be evicted therefrom
  4. 4.The defendant (Kenya Forest Service) shall have costs both of the suit and the counterclaim

Authorities

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Legislation

  • Forests Act (Chapter 385) (repealed)Section 4(1)(c)
  • Forests Act, 2005
  • Forest Conservation and Management Act, 2016
  • Government Lands Act (now repealed)
  • Registered Land Act (repealed)
  • Constitution of Kenya, 2010effective date
  • Legal Notice No. 152 (Gazette Notice dated 8th October 2001)

Cases cited (15)

  • Shimoni Resort v Registrar of Titles & 5 others
    [2016] eKLR
  • Samwel D. Omwenga Angwenyi v National Land Commission & 2 others
    [2019] eKLR
  • Lawrence P. Mukiri v Attorney General & 4 others
    [2013] eKLR
  • Henry Muthee Kathurima v Commissioner Of Lands & another
    [2015] eKLR
  • Said Bin Seif v. Shariff Mohammed Shatry
    (1940)19 (1) KLR 9
  • Macfoy vs. United Africa Co. Ltd
    [1961] 3 All E.R. 1169
  • Chemey Investment Limited v Attorney General & 2 others
    [2018] eKLR
  • Niaz Mohamed Jan Mohamed v. Commissioner for Lands & 4 Others
    [1996] eKLR
  • Funzi Island Development Ltd & 2 Others v. County Council of Kwale
  • Republic v. Minister for Transport & Communications & 5 Others ex parte Waa Ship Garbage Collectors & 15 Others
    KLR (E&L) 1, 563
  • John Peter Mureithi & 2 Others v. Attorney General & 4 Others
    [2006] eKLR
  • Kenya National Highway Authority v. Shalien Masood Mughal & 5 Others
    (2017) eKLR
  • Arthi Highway Developers Limited v. West End Butchery Limited & 6 Others
    [2015] eKLR
  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR
  • Milan Kumarn Shah & Others v. City Council of Nairobi & Others
    HCCC No. 1024 of 2005
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, "Galaxy Realtors Limited v Kenya Forest Service [2020] KEELC 2164 (KLR)", Case Analysis (2020). Nakuru Municipality Block 19/186 suit (plaint filed 18th November 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2164/eng@2020-06-11

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