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ELCPartially AllowedELC Petition (Nairobi) — petition transferred from the High Court by order of Mumbi Ngugi J on 3/11/2015 (case number not stated in the judgment)· [2020] KEELC 2461 (KLR)

Tamrock Investments LimiteD v Registrar of Titles & 2 others [2020] KEELC 2461 (KLR)

Environment and Land Court
12 May 2020
2,369 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A company whose title over a road reserve was revoked without a hearing won only token damages because its land was public property in the first place.

What this practically means

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Executive summary

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Tamrock Investments Limited petitioned the High Court, which transferred the matter to the Environment and Land Court, challenging Gazette Notices Numbers 9229 and 9230 of 29/7/2011 revoking its title to LR 209/12804 (granted as IR 61787 on 1/3/1994). The petitioner sought certiorari, mandamus, a declaration that the revocation was unconstitutional, alternative compensation of Kshs 41,820,000, general damages and costs, arguing that the 1st respondent had no power under the repealed Registration of Titles Act to revoke a title, and that the revocation breached Articles 40 and 47 of the Constitution. The respondents, through a replying affidavit of Francis Muthusi Kiminza, contended that the property was a road reserve under Development Plan No 34277 and Survey Plan No 8/214 (5/2/1922), irregularly alienated during the 1990s land-grabbing era. The court found the property was at all material times a road reserve irregularly and unprocedurally alienated, as the petitioner produced nothing beyond the grant to controvert this. The court also held the revocation unprocedural: registrars lacked power to revoke titles without a court order, and Article 47 required a hearing even in 2011. However, because the property had become a fully developed public road, certiorari, mandamus and the declaration were refused; the compensation claim failed as unsupported by valuation evidence. The court awarded nominal damages of Kshs 3,000,000 and ordered each party to bear their own costs, holding the dispute was caused by both the petitioner and the defunct Office of the Commissioner for Lands.

Key legal issues

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01

Whether the suit property was a road reserve irregularly and unprocedurally alienated to the petitioner

Holding

Yes — the property was at all material times a public road truncation planned and surveyed as a road reserve, and its 1990s allocation was irregular and unprocedural.

Reasoning

The respondents exhibited Survey Plan No 8/214 showing the property was planned and surveyed as a road reserve. The petitioner produced only its Grant IR 61787 and did not exhibit the approved development plan said to underlie the allocation, nor any other document showing the grant was procedurally obtained. In the absence of controverting evidence, the respondents' evidence prevailed, and the court found the title was a product of the 1990s public land grabbing.

p. 2
02

Whether the revocation of the petitioner's title was procedurally done

Holding

No — the revocation by Gazette Notice without a court order and without affording the petitioner a hearing was unprocedural.

Reasoning

The cause of action accrued on 29/7/2011, so the repealed Registration of Titles Act governed. Under the pre-2012 jurisprudence, registrars lacked power to revoke registered titles; only courts could order revocation. Further, although the impugned title was defective, Article 47 of the Constitution was in force in 2011 and required fair hearing and fair administrative action before revocation. The respondents filed no submissions and made no serious attempt to answer either complaint.

p. 3
03

What reliefs, if any, are available to the petitioner

Holding

Only nominal damages of Kshs 3,000,000; certiorari, mandamus, the declaration and the compensation claim were refused.

Reasoning

The road construction had been completed and the suit property was now a fully developed public road, rendering the discretionary review orders and the declaration inappropriate. The compensation claim failed both because the property was irregularly alienated public road land and because the pleaded figure of Kshs 41,820,000 was entirely unsupported by valuation evidence. With no evidence to assess reasonable general damages, the court assessed nominal damages for the unprocedural revocation.

p. 3

Legal principles established

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  • Sanctity of title was never intended to be a vehicle for fraud, illegality or unjust enrichment at public expense.
  • Prior to the Land Registration Act, 2012, registrars had no power to revoke a registered title; only the courts could order revocation.
  • Fair administrative action (a hearing) was required for revocation of title even before the Fair Administrative Action statute was enacted, because Article 47 was in force.
  • The applicable land registration legal framework is the law in force when the cause of action accrued, not the law in force when suit is filed.

Court orders

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  1. 1.The court assessed and awarded the petitioner nominal damages of Kshs 3,000,000 for the unprocedural revocation of the impugned title
  2. 2.Each party to bear their respective costs of the petition
Jurisdiction invoked
Constitution of Kenya, 2010 (Articles 19, 22, 23, 40, 47, 50 and 64 invoked; petition transferred to the Environment and Land Court by the High Court)

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, "Tamrock Investments LimiteD v Registrar of Titles & 2 others [2020] KEELC 2461 (KLR)", Case Analysis (2020). ELC Petition (Nairobi) — petition transferred from the High Court by order of Mumbi Ngugi J on 3/11/2015 (case number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2461/eng@2020-05-12

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