Omar R Yakub & another v Attorney General [2021] KEELC 2282 (KLR)
The bottom line
#Kenya's Environment and Land Court cancelled an irregular Thika Road title but still ordered the government to pay Kshs 65 million for demolishing structures in breach of a court order.
What this practically means
#Executive summary
#Key legal issues
#Validity of Grant No IR 68678 over LR No 21639
The grant is null and void as it relates to a road reserve compulsorily acquired in the 1960s and never available for alienation as unsurveyed commercial plots
The court found that by 1994 the suit property was already registered, surveyed and reserved for Thika Road expansion following the 1962 acquisition from Salopia Limited. The letters of allotment describing it as unsurveyed commercial plots were a misrepresentation. Mr Yakub was directly and through his surveyor involved in the misrepresentations, having procured the allotments and an additional 0.0795 hectare extension without a formal allotment. Authorities on irregularly acquired public utility land support nullification.
Lawfulness of the demolition of 1/11/2008
The demolition was unlawful because it was carried out in contravention of a subsisting court order
A court order barring demolition issued on 27/3/2008 had been served on the Ministry and the accounting officer was subsequently convicted of contempt. Although the public project was important, the Ministry should have sought a stay of the order instead of disregarding it. The demolition was therefore unlawful to the extent that it breached the court order.
Reliefs available to Mr Yakub notwithstanding his void title
Yakub entitled only to damages of Kshs 65,000,000 equivalent to the value of demolished improvements, because demolition breached a court order
Because the plaintiff's title was null and void, declaratory, restoration and compensation reliefs were unavailable. However, the Ministry's breach of the subsisting court order means taxpayers must compensate the plaintiff for the demolished structures, valued at Kshs 65,000,000 by Joe Musyoki Consultants, which valuation was uncontroverted. Other limbs of damages were refused.
Attorney General's counterclaim
Only the declaratory reliefs and cancellation of the title were granted; damages for trespass and removal costs were refused
Given the findings on the nullity of the plaintiff's title, the Attorney General was entitled to declarations that the title was null and void and an order cancelling it. However, since key players in the irregular alienation were Ministry of Lands officers, and no evidence supported the costs of removing structures, the remaining counterclaim reliefs were declined.
Roy Hauliers Limited's claim as registered lessee
Roy Hauliers failed to prove it was a registered lessee and its suit was dismissed
The lease produced was unstamped, unregistered, named a different company (Roy Spares and Hauliers Limited) as tenant, and had expired in December 2005 with no evidence of extension. There was no company resolution authorizing the suit and no proof of rent payment. The evidential burden of proving a registered lease was not discharged.
Legal principles established
#- A title superimposed on land already compulsorily acquired and reserved for a public purpose is unlawful and will not be protected by indefeasibility
- Sanctity of title is not a vehicle for fraud and illegality or unjust enrichment at public expense
- Disregard of a subsisting court order cannot be justified even by pressing public interest; the proper course is to seek a stay
Court orders
#- 1.Mr Omar R Yakub awarded Kshs 65,000,000 as damages equivalent to the value of the improvements demolished on 1/11/2008, with interest at court rate from the date of judgment
- 2.Declaration that Grant Number IR 68678 comprising Land Reference Number 21639 was obtained illegally and is null and void
- 3.Order that the Chief Land Registrar shall cause Grant Number IR 68678 comprising Land Reference Number 21639 to be cancelled forthwith
- 4.The rest of the reliefs sought in the primary suit and in the counterclaim in ELC Case No 553 of 2009 declined
- 5.The plaintiff's suit in ELC Case No 552 of 2009 dismissed for lack of merit
- 6.Parties to bear their respective costs in the two primary suits and in the Attorney General's counterclaim
- Jurisdiction invoked
- Environment and Land Court Act - transferred from the High Court at Nairobi upon establishment of the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omar R Yakub & another v Attorney General [2021] KEELC 2282 (KLR)", Case Analysis (2021). ELC Case No. 553 of 2009 (Consolidated with ELC Case No. 552 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2282/eng@2021-08-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.