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ELCPartially AllowedELC No. 1341 of 2007· [2022] KEELC 1617 (KLR)

Satima Enterprises Limited v Kenya Revenue Authority & another [2022] KEELC 1617 (KLR)

Environment and Land Court
20 January 2022
3,841 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's land court cancelled Satima Enterprises' Mombasa title because land already reserved and used for public purposes cannot be allocated to private buyers.

What this practically means

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Executive summary

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Satima Enterprises Limited sued the Kenya Revenue Authority (1st Defendant) and the Commissioner of Lands (2nd Defendant) claiming it had been allocated Land Reference Number MN/1/6230, Mombasa, in 1989 and issued a Grant under the Registration of Titles Act, and seeking among other relief an order of eviction against KRA. KRA counter-claimed, asserting the property had been allocated in 1975 to the East African Community, developed with bungalows and maisonettes under an approved Part Development Plan, and thereafter passed to the Customs and Excise Department and then to KRA. It sought declarations that the letter of allotment of 7th December 1989 and Grant No. CR 20023/1 were null and void, rectification of the register and cancellation of the Plaintiff's title. On 1st November 2021 the Plaintiff, though served, did not attend court and its case was dismissed with costs to the 1st Defendant. The court proceeded to determine the counterclaim on the merits on three issues: availability of the land for alienation, the Commissioner of Lands' power to allocate, and entitlement to counterclaim relief. Applying the Government Lands Act (repealed) and James Joram Nyaga, the court found the property was already alienated and developed for public purposes, hence not un-alienated land, and that the Commissioner lacked power to allocate it, the allocation being the President's preserve. The Plaintiff's title, being illegally and unprocedurally acquired, was cancelled under section 26 of the Land Registration Act. The 1st Defendant's counterclaim was allowed in terms of prayers (b) to (e).

Key legal issues

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01

Whether the suit property was available for alienation

Holding

It was not; it had already been alienated to the East African Community and later the Customs Department/KRA, and was developed for public purposes

Reasoning

The property was allocated in 1975 to the East African Community which built bungalows and maisonettes under an approved Part Development Plan. Development and approved reservation meant the land was not un-alienated Government land within the meaning of section 2 of the Government Lands Act. It therefore remained public land unavailable for allocation to a private entity.

p. 4
02

Whether the Commissioner of Lands had power to allocate the property

Holding

He did not; power to alienate un-alienated Government land was the preserve of the President, with limited delegated exceptions not applicable here

Reasoning

Section 3 of the Government Lands Act vested the power to alienate un-alienated Government land in the President. Delegation to the Commissioner was confined to religious, charitable, educational or sports purposes. None applied. Following James Joram Nyaga, the Commissioner's purported allocation and the resulting grant were a nullity.

p. 5
03

Whether the 1st Defendant is entitled to the orders in the Counterclaim

Holding

Yes; the Plaintiff's title, being derived from an illegal and unprocedural allocation, was liable to cancellation under section 26 of the Land Registration Act

Reasoning

Having declared the alienation null and void, the title arising from it could not stand. Section 26(1)(b) of the Land Registration Act permits challenge to a title acquired illegally, unprocedurally or through a corrupt scheme. The court agreed with Moses Okata Owuor that an irregularly obtained title must be cancelled, and allowed the counterclaim.

p. 5

Legal principles established

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  • Land reserved, developed and occupied for public purposes is not un-alienated Government land available for allocation to private persons
  • Under section 3 of the Government Lands Act (repealed), the power to alienate un-alienated Government land vested in the President, not the Commissioner of Lands
  • Under section 26 of the Land Registration Act, a title acquired illegally, unprocedurally or through a corrupt scheme is liable to cancellation

Court orders

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  1. 1.The 1st Defendant's Counter-claim is allowed in terms of prayers (b), (c), (d) and (e) of the Amended Defence and Counter-claim dated 4th July 2007; prayer (a) had already been allowed
  2. 2.The Letter of Allotment dated 7th December 1989 and Grant No. CR 20023/1 issued to the Plaintiff are declared null and void
  3. 3.Rectification of the Register and cancellation of the Plaintiff's title in favour of the 1st Defendant

Authorities

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Legislation

  • Registration of Titles ActCap. 281 (repealed)
  • Government Land ActCap. 280/286, sections 2, 3 and 7 (repealed)
  • Physical Planning ActCap. 286, section 3 (repealed)
  • Land Registration Actsections 26(1) and 80(1)
  • Constitution of KenyaArticle 40(6)

Cases cited (9)

  • Kenya Anti-Corruption Commission v Sindo Distributors Limited & 27 others
    [2020] eKLR
  • Nelson Kazungu Chai & 9 Others v Pwani University
    (2014) eKLR
  • Republic v Minister for Transport & Communications & 5 Others ex-parte Waa Ship Garbage Collector & 15 Others
    Mombasa HCMCA No. 617 of 2003 (2006) 1 KLR (E&L) 563
  • Henry Muthee Kathurima v Commissioner of Lands & Another
    (2015) eKLR
  • Moses Okata Owuor & Another v A.G & Another
    (2017) eKLR
  • James Joram Nyaga & Another v the Hon. Attorney General & Another
    [2007] eKLR
  • Milankumarn Shah & Two others v City Council of Nairobi & Others
    Nairobi HCCC No. 1024 of 2005
  • Kenya Anti-Corruption Commission v Online Enterprises Limited & 4 others
    [2019] eKLR
  • Paul Nderitu Ndung'u & 20 Others v Pashito Holdings Limited & Another
    Nairobi HCCC No. 3063 of 1996
Jurisdiction invoked
Original jurisdiction under Article 162(2) of the Constitution (Environment and Land Court); suit transferred from the High Court, Civil Division

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, "Satima Enterprises Limited v Kenya Revenue Authority & another [2022] KEELC 1617 (KLR)", Case Analysis (2022). ELC No. 1341 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1617/eng@2022-01-20

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