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ELCPartially AllowedELC Case No. 106 of 2015· [2021] KEELC 3551 (KLR)

Mistry Premji Ganji (Investments) Limited v Kenya National Highways Authority [2021] KEELC 3551 (KLR)

Environment and Land Court
8 April 2021
9,515 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~38 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered KeNHA to pay over Kshs 81 million for demolishing a Mombasa property owner's wall without proving it had actually acquired the land.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of subdivision No. 735 (originally No. 626(7) of Section V M.N) Mombasa under CR 18624, sued the Kenya National Highways Authority after it served a demolition notice on the plaintiff's tenant KTDA in February 2015 and on 18th May 2015 demolished 30 metres of the plaintiff's boundary wall, gates and electric fence, alleging the demolished portion encroached on a road reserve purportedly compulsorily acquired from the mother plot MN/V/393/R by Gazette Notices of 21st and 28th November 1969. The plaintiff sought declarations of indefeasible title, invalidation of the notice, permanent injunctions, and damages. The defendant justified its actions under sections 49(1), (4) and (5) of the Kenya Roads Act and section 91 of the Traffic Act, and invoked section 30 of the Registered Land Act on overriding interests. The court framed four issues and found that although the acquisition process commenced in 1969, no evidence proved its completion - there was no survey of the reserve, no register entry, no proof of taking of possession, and the defendant's own surveyor admitted more land (0.36ha) was used than was purportedly acquired (0.333ha). The Mombasa County Surveyor's report confirmed the road reserve had never been surveyed. The defendant also contradicted itself on the burden of proof. The first notice was held invalid as served on a non-owner, though cured by subsequent correspondence. Holding the demolition unlawful, the court declared the plaintiff's title indefeasible, issued permanent injunctions, ordered restoration of the walls within 90 days or reimbursement, and awarded Kshs 81,574,631 in damages comprising lost rent and Kshs 55,000,000 general damages for trespass and loss of income, with interest, costs to the plaintiff, and a 30-day stay of execution.

Key legal issues

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01

Whether the demolished portion of the suit land had been compulsorily acquired by the government in 1969

Holding

No completed compulsory acquisition was proved. Only notices of intention to acquire and of inquiry were produced; there was no evidence of survey, valuation award noted in the register, or taking of possession, and the defendant even used more land than it claimed was acquired.

Reasoning

The court found the acquisition process commenced via Gazette Notices 3581 and 3637 of November 1969 but no evidence showed its conclusion. No register entry or possession documents were produced; reliance on the Ludwig Lany appeal was misplaced since its outcome was never noted in the register. DW1's testimony that 0.333ha was acquired but 0.36ha used shifted the burden to the defendant to justify the extra 0.03ha, which it failed to discharge. The County Surveyor's report confirmed the road reserve had never been surveyed.

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02

Whether the road reserve was an overriding interest under section 30(a) and (c) of the Registered Land Act (repealed)

Holding

No. The land had fixed boundaries, the road was designed in 1969 after the original registration, and no evidence showed the road reserve encroached on parcel 735; section 30(a) applies to rights subsisting at first registration.

Reasoning

The court found the defendant contradicting itself: it claimed an overriding interest while simultaneously shifting the legal burden to the plaintiff to disprove the reserve. Since the acquisition was never entered in the register, any such overriding interest would place the burden on the defendant to show actual use of the disputed portion, yet the plaintiff had fenced it off since 1987. Section 30(a) could not apply retrospectively as the road postdated the original title.

p. 9
03

Whether the notice served was valid and sufficient

Holding

The first notice to KTDA was invalid as KTDA had no proprietary interest, but the irregularity was cured by subsequent notice to the plaintiff and correspondence exchanged.

Reasoning

The notice of 16th February 2015 was addressed to the tenant KTDA rather than the registered owner. The court held this defective, but because the plaintiff received the notice through KTDA and engaged in correspondence with the defendant (including the letter of 13th April 2015 identifying the affected plot), the procedural irregularity was overtaken by events and did not invalidate the defendant's reliance on notice for its statutory mandate analysis.

p. 10
04

Whether the plaintiff is entitled to damages and reliefs

Holding

Yes. The demolition was unlawful; the plaintiff was awarded restoration of the wall, lost rent for 2015-2016 calculated from the lease, general damages of Kshs 55,000,000 for trespass and loss of income, declaration of indefeasible title and permanent injunctions.

Reasoning

Having found the demolition illegal and the title indefeasible with no proof of fraud, the court ordered restoration of the wall within 90 days or reimbursement of construction costs executable against the defendant. Lost rent was computed from the lease at Kshs 1,335,469 monthly for 7 months of 2015 and Kshs 1,435,529 for 12 months of 2016, plus Kshs 55,000,000 general damages from 2017 to judgment, with interest and costs and a 30-day stay.

p. 10

Legal principles established

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  • A gazette notice of intention to acquire land does not, without evidence of completed compulsory acquisition (survey, valuation, taking of possession and entry in the register), establish that a road reserve was lawfully acquired
  • A public body exercising statutory powers to remove encroachments must demonstrate by evidence the authority and extent of the alleged encroachment; where the acquisition is unproven, demolition of a registered proprietor's structures is unlawful

Court orders

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  1. 1.A declaration that the certificate of title CR. 18624 that the plaintiff holds in respect of the suit land constitutes conclusive evidence of ownership of the said land and that the plaintiff is the lawful and indefeasible owner and entitled to immediate possession of all the said land
  2. 2.A permanent injunction restraining the defendant from demolishing or further demolishing or destroying any part of the said land or any structure thereon
  3. 3.A permanent injunction restraining the defendant from entering, occupying or using any part of the said land
  4. 4.Restoration of the walls unlawfully demolished by the defendant on the said land together with damages of Kshs 81,574,631
  5. 5.A stay of execution for a period of 30 days
  6. 6.Interest thereon at court rates
  7. 7.Costs to the plaintiff

Authorities

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Legislation

  • Constitution of KenyaArticles 40, 47, 64
  • Kenya Roads Actsections 3, 4(1), 22(4), 49(1)(a), (4) and (5)
  • Traffic ActCap 403, section 91(2)
  • Land Acquisition ActCap 295 (repealed), sections 6(2), 7, 9, 17, 19, 20
  • Registration of Titles Actsection 23(1) (repealed)
  • Land Registration Actsections 26(1), 107
  • Registered Land ActCap 300, section 30(a) and (c) (repealed)
  • Evidence Actsections 34, 40, 41, 42, 43, 107(1)
  • Fair Administrative Action Act2015 (mentioned as not yet in force at demolition)

Cases cited (21)

  • West Dunbartonshire Council v. William Thompson and Son (Dumbarton) Ltd
    (2015) ScotCS CSIH-93
  • Geothermal Development Company Ltd vs. AG & others
    (2013) eKLR
  • Virenda Ramji Gudka & 3 others vs. Attorney General
    (2014) eKLR
  • Elizabeth Wambui Githinji & others vs. Kenya Union of Road Authority & others
    (2019) eKLR
  • Shree Visa Oshwal Community & Another vs. A.G & others
    (2019) eKLR
  • Ludwig Lany vs. R.F Tanner (Collector/Valuer)
    Mombasa Civil Appeal No. 3 of 1970 (also cited as No. 1 of 1970)
  • Eunice Grace Njambi Kamau & Another vs. Attorney General & 5 others
    (2013) eKLR
  • Shalien Masood & 5 others vs. Kenya National Highways Authority & others
    CA No. 327 of 2014
  • Catherine C Kittony vs. Jonathan Muindi Dome & 2 others
    (2019) eKLR
  • John Peter Mureithi & 2 others vs. Attorney General & 4 others
    (2006) eKLR
  • Kenya Allied Workers Union vs. Security Guards Services & 38 others
    Misc. 1159 of 2003
  • Moses Watayi Kiteresi vs. Daniel Wanyonyi & 2 others
    (2014) eKLR
  • Anastacia Ruguru vs. Anthony Mwai Waweru & another
    (2018) eKLR
  • Mariam & Others vs. The State and Others
    (1980) AIR Ker 176
  • Peter Ngari Kagume & 6 others vs. Attorney General
    (2016) eKLR
  • Monica Wangu Wamwere vs. The Attorney General
    (2019) eKLR
  • Dennis Noel Mukhulo Ochwada & another vs. Elizabeth Murungari Njoroge & another
    (2018) eKLR
  • R.G Patel vs. Lalji Makhanji
  • Republic vs. National Police Service Commission exparte Daniel Chacha Chacha
    (2016) eKLR
  • Balgay Ltd Vs William
    (2016) CSIH 55
  • Commissioner of Lands & Ano Vs Coastal Aquaculture Ltd
    Civil Appeal No. 252 of 1996, KLR at 264
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over disputes relating to land (suit property subdivision No. 735 (originally No. 626(7) of Section V M.N) Mombasa)

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, "Mistry Premji Ganji (Investments) Limited v Kenya National Highways Authority [2021] KEELC 3551 (KLR)", Case Analysis (2021). ELC Case No. 106 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3551/eng@2021-04-08

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