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ELCPartially AllowedELCC No. 206 of 2004 (with ELCC No. 489 of 2004)· [2021] KEELC 3737 (KLR)

Kenya Airports Authority v Wambua Mila & 1066 others [2021] KEELC 3737 (KLR)

Environment and Land Court
12 April 2021
27,947 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~112 min to read original · ~4 min brief

The bottom line

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The court confirmed Kenya Airports Authority owns the JKIA land and the defendants' titles were fraudulent, but still awarded damages because the eviction was carried out inhumanely.

What this practically means

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Executive summary

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Two suits heard together concerned L.R No. 21919 (I.R 70118), the 4,674.60-hectare parcel on which JKIA stands, owned by Kenya Airports Authority following the 1994 Vesting Order and the 1971 compulsory acquisition of L.R No. 3864. KAA sued the officials of Mulolongo Brothers Association (ELCC 206/2004) and Uungani Settlement Scheme Self Help Group and 1,064 others (ELCC 489/2004), alleging fraudulent allocation of L.R No. 13512 and L.R No. 14231, parts of its land, and sought injunctions, a declaration that Uungani's 1998 allotment letter was void ab initio, and general damages. The defendants claimed lawful government allotments, denied trespass, and counter-claimed over the November 2011 demolition of their structures and eviction, seeking declarations, reinstatement, and damages exceeding Kshs. 27 billion. The court held the plaintiff's Grant I.R 70118 was never validly surrendered, making Grant I.R 90243 for L.R No. 24937 premature and invalid; that L.R No. 14231 and 13512 fell within L.R No. 21919; and that both allotments were unlawful and fraudulent - Uungani's having been procured through politicians, and Mulolongo's titles being backdated forgeries. The defendants were therefore trespassers entitled to no reinstatement or land compensation. However, their eviction by the plaintiff with police assistance was carried out inhumanely, without adequate notice, breaching Articles 28 and 29 of the Constitution. Judgment was entered for the plaintiff on the injunctions and declaration; the counter-claim was dismissed save for Kshs. 1,000,000/- general damages for illegal eviction awarded to the 1st defendant, Wambua Mila. General damages for trespass were refused as the defendants were no longer in possession. Each party was ordered to bear its own costs.

Key legal issues

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01

Ownership of L.R No. 21919 and effect of the aborted surrender

Holding

The plaintiff is the lawful owner of L.R No. 21919 under Grant I.R 70118; Grant I.R 90243 for L.R No. 24937 was issued prematurely and is invalid

Reasoning

The register showed an attempted surrender of Grant I.R 70118 in exchange for Grant I.R 90243, but the surrender was never endorsed by the Registrar of Titles. A title that is not surrendered cannot be replaced; hence the new grant could not lawfully issue and the original grant remains the only valid title, defeating the defendants' 'two titles' fraud argument.

p. 19
02

Location of L.R No. 14231 and L.R No. 13512 within the suit property

Holding

Both parcels fall within the boundaries of the suit property

Reasoning

The 1996 survey that created L.R No. 21919 embraced all land comprised in L.R No. 3864 compulsorily acquired in 1971 for JKIA development, including L.R No. 14231 and L.R No. 13512 which had been excised by earlier surveys but never validly allocated or titled.

p. 19
03

Lawfulness of the allocations to Uungani and Mulolongo

Holding

Both allocations were unlawful, irregular and fraudulent; the purported titles are nullities

Reasoning

The land was reserved for JKIA and already included in the plaintiff's title when allocated; Uungani obtained its allotment through political influence without application or PDP; Mulolongo's titles predated its 2002 registration as a society, were backdated and matched a forged version of Alcon Holdings' Grant I.R 58266; the Commissioner of Lands disowned both allotments.

p. 21
04

Trespass by the defendants

Holding

The defendants were trespassers on the suit property

Reasoning

Having acquired no valid proprietary interest, the defendants and those claiming through them had no right to possession. Title to land carries with it legal possession, and the owner was entitled to possession at all material times.

p. 21
05

Lawfulness of the eviction and demolition of November 2011

Holding

The eviction was unlawfully carried out in an inhumane manner, violating Articles 28 and 29 of the Constitution

Reasoning

Although the defendants were trespassers, due process and human dignity applied. The plaintiff, with police assistance, evicted them with excessive force, without adequate notice directed to them or engagement through local administration, and in breach of the rule of law while the dispute was in court.

p. 22
06

Damages for the illegal eviction

Holding

Only general damages of Kshs. 1,000,000/- awarded to DW1 (Wambua Mila); special damages and reinstatement refused

Reasoning

Only those proved to have been in occupation and evicted could recover general damages; on the evidence only DW1 (and DW4, who was not a party) qualified. Special damages were not pleaded or strictly proved, and the valuation was restricted to land the defendants never owned.

p. 24

Legal principles established

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  • Where a new grant is issued in exchange for a surrender that was never endorsed/registered, the new grant is issued prematurely and the original grant remains the only valid title
  • Land compulsorily acquired by the Government for a specific public purpose (the development of JKIA) is not available for allocation to private persons until that purpose is satisfied
  • Even trespassers are entitled to due process and humane, dignified treatment in eviction, and an eviction carried out inhumanely with excessive force is unlawful
  • An expectation whose fulfilment requires an unlawful decision by a public authority cannot be a legitimate expectation
  • Special damages must be specifically pleaded and strictly proved, and evidence cannot be adduced through closing submissions

Court orders

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  1. 1.Judgment entered for the plaintiff in ELCC No. 489 of 2004 in terms of prayers (a) and (b) of the Further Amended Plaint dated 27th August, 2008 (permanent injunction and declaration that the letter of allotment dated 5th January 1998 is void ab initio)
  2. 2.Judgment entered for the plaintiff in ELCC No. 206 of 2004 in terms of prayer (a) of the Amended Plaint dated 5th October, 2006 (permanent injunction)
  3. 3.The defendants' counter-claim in ELCC No. 489 of 2004 dismissed save for a claim for general damages for illegal eviction, with Kshs. 1,000,000/- awarded to the 1st defendant, Wambua Mila
  4. 4.Each party to bear its own costs of ELCC No. 489 of 2004 and ELCC No. 206 of 2004

Authorities

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Legislation

  • Kenya Airports Authority ActSections 4, 4(2), 14, 15, 16
  • Aerodromes (Control of Obstructions) ActChapter 396 Laws of Kenya
  • Registration of Titles ActSection 23 (and 23(1)), Chapter 281 Laws of Kenya (now repealed)
  • Registered Land ActChapter 300 Laws of Kenya (now repealed)
  • Land Acquisition ActChapter 295 Laws of Kenya (now repealed)
  • Societies Actregistration of Mulolongo
  • Civil Procedure ActSection 27
  • Civil Aviation ActChapter 394 Laws of Kenya
  • Constitution of Kenya 2010Articles 2(6), 10, 19, 20, 21, 22, 25(a), 27, 28, 29, 29(f), 39, 40, 43, 45, 47, 50(1), 53, 53(c), 57, 57(c), 64
  • Legal Notices Nos. 1105 and 1106 of 1971 / Gazette Notice No. 1106 dated 30th April 1971 and Legal Notice No. 201 of 1994compulsory acquisition and vesting of JKIA land
  • Kenya Airports Authority (Vesting) Order, 1994vesting of aerodromes property in the plaintiff
  • International treaties (ICCPR, ICESCR, Universal Declaration of Human Rights, African Charter on Human and Peoples' Rights, Vienna Declaration and Programme of Action, CEDAW, Chicago Convention 1944 with Annexures 14 and 17)relied on in pleadings and submissions

Cases cited (22)

  • Richard Okuku Oloo v South Nyanza Sugar Co. Ltd
    [2013] eKLR
  • Sarah Jelangat Siele v Attorney General & 3 others
    [2018] eKLR
  • Dr. Joseph Arap Ngok v Justice Moijo Ole Keiwua & 5 others
    Civil Appeal No. Nai. 60 of 1997
  • Gitwany Investments Limited v Tajmal Limited & 3 others
    [2006] eKLR
  • Mitu-Bell Welfare Society v The Kenya Airports Authority & 2 others
    Supreme Court Petition No. 3 of 2018 [2021] eKLR
  • Wreck Motor Enterprises v Commissioner of Lands & 3 others
    [1997] eKLR
  • Dr. Joseph N.K. Arap Ng'ok v Justice Moijo ole Keiwua & 4 Others
    Civil Application No. NAI.60 of 1997 (unreported)
  • Johnson Wachira Musa v Nyeri County Council & another
    [2009] eKLR
  • Rahab Mumbi Kimani v Damaris Wanjiku Gachoka
    [2018] eKLR
  • Moi Education Centre Co. Ltd v William Musembi & 16 others
    [2017] eKLR
  • Gusii Mwalimu Investment Co. Ltd & 2 others v Mwalimu Hotel Kisii Ltd
    Civil Appeal No. 160 of 1995
  • Teresia Irungu v Jackton Ocharo & 2 others
    [2013] eKLR
  • Caroget Investment Limited v Aster Holdings Limited & 4 others
    [2019] eKLR
  • Titus Gatitu Njau v Municipal Council of Eldoret
    [2015] eKLR
  • George Kimani Mbugua & 2 others v Ministry of Roads & another
    [2013] eKLR
  • Mike Maina Kamau v Attorney General
    [2017] eKLR
  • Kampala City Council v Nakaye
    [1972] EA 446
  • Ouma v Nairobi City Council
    [1976] KLR 297
  • Eldama Ravine Distributors Limited and another v Chebon
    Civil Appeal Number 22 of 1991 (UR)
  • Coast Bus Service Limited v Murunga & Others
    Nairobi CA No. 192 of 1992 (UR)
  • Ratcliffe v Evans
    [1892] QB 524
  • R v DPP ex p Kebilene
    [1999] 3 WLR 972 (HL)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes (Environment and Land Court Act), the two suits having been ordered on 24th October 2004 to be tried together

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, "Kenya Airports Authority v Wambua Mila & 1066 others [2021] KEELC 3737 (KLR)", Case Analysis (2021). ELCC No. 206 of 2004 (with ELCC No. 489 of 2004). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3737/eng@2021-04-12

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