Flash Audio Services Limited v Mbesa Limited, Attorney General & National Land Commission [2020] KEELC 3218 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled you cannot get valid government land if it was already leased to someone else, but money paid for a bad allocation must be refunded.
What this practically means
#Executive summary
#Key legal issues
#Chain of title from Michael Lubicz
The court found Michael Lubicz transferred the property through the Popats and the Sidis to the 1st Defendant
The court reviewed the indentures of conveyance of 30/4/1962, 7/7/1983 and the assignment of 14/6/1995, and the testimony of the Popat and Sidi family witnesses and long-term occupants confirming continuous occupation and sale to the 1st Defendant. It preferred this evidence over the Plaintiff's assertion that the lease expired unencumbered.
Change of user and extension of lease
The court held that the 1st Defendant's change of user and extension of lease were duly approved, resulting in the new number L.R. No. 1870/1/544
Correspondence between the Commissioner of Lands, the Director of Surveys and the Nairobi City Council - including Town Planning Committee minutes of 15/11/1996, the letter of 15/4/1998, the surrender of the original title and grant I.R. 92986 registered on 16/10/2003 - confirmed the regularity of the 1st Defendant's title process.
Validity of the Plaintiff's allocation
The allocation of the Suit Property to the Plaintiff was invalid because the land was not available for alienation
The land had already been leased to the 1st Defendant for 50 years from 1/6/2003 before the Plaintiff's letter of allotment dated 13/10/2011. Even State witnesses confirmed the allocation was unlawful and that the Plaintiff's title should be cancelled. The 3rd Defendant admitted the allocation was unlawful.
Indemnity against the 2nd Defendant
The Plaintiff's alternative claim for indemnity/compensation against the 2nd Defendant failed on the exclusion clause in the letter of allotment, though the court ordered refund of the money actually paid
The letter of allotment disclaimed Government liability for prior commitment. The court dismissed the indemnity claim but, in equity, directed the refund of the Kshs. 914,770/= the Plaintiff had actually paid, since the Plaintiff received no title under the invalid allocation.
Legal principles established
#- Land already leased and not available for alienation cannot be validly allocated to another party
- Two titles over the same piece of land cannot coexist; where one was issued before the other, the later title is void
Court orders
#- 1.Dismissal of the Plaintiff's claim with costs to the 1st Defendant
- 2.Dismissal of the Plaintiff's claim for indemnity against the 2nd Defendant
- 3.Direction that the 2nd Defendant refund the Plaintiff Kshs. 914,770/= paid on account of stand premium, stamp duty, approval fees and other charges on 20/12/2012
- 4.Grant of prayers (b), (c) and (d) of the 1st Defendant's counterclaim together with the costs of the counterclaim
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to ownership of land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Flash Audio Services Limited v Mbesa Limited, Attorney General & National Land Commission [2020] KEELC 3218 (KLR)", Case Analysis (2020). ELC Case No. 1538 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3218/eng@2020-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.