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ELCPartially AllowedPetition dated 30th July 2020 (Environment and Land Court, Nairobi)· [2022] KEELC 2255 (KLR)

Green Two Estate Owners and Residents Association Represented by Hassan Ahamedunur Baricha & 6 others v Chief Land Registrar & 5 others (Environment and Land Constitutional Petition 3 of 2020) [2022] KEELC 2255 (KLR)

Environment and Land Court
2 June 2022
17,849 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~71 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court confirmed that South C homeowners who bought land in good faith keep their titles, and an invalid eviction notice cannot displace them.

What this practically means

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Executive summary

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This first-instance judgment of the Environment and Land Court at Nairobi, delivered by Oguttu Mboya J on 2nd June 2022, determined a petition by members of Green Two Estate Owners and Residents Association seeking protection of their titles to properties in South C, Nairobi, arising from subdivisions of L.R No. 209/107772 (now L.R Nos. 209/16432 and 209/16433), against a cross-petition by the 3rd Respondent, Limbani Dispensary Project Group, claiming ownership and eviction. The court framed six issues, centring on ownership of the parent parcel, validity of eviction notices, compensation, the constitutionality of Sections 152E and 152F of the Land Act, and whether the DCI could be barred from investigating title acquisition. The court found the Petitioners to be bona fide purchasers for value from the registered proprietor, Abdi Rahiman Abdi, and declared their properties private land. The 3rd Respondent's claim failed because it had accepted and enforced an NLC compensation award as a decree and could not also claim ownership; its eviction notice referred to a parcel not its own and was a nullity. The 4th Respondent's claim failed on the second-allotment doctrine, an unexplained chain from allottee to himself, an uncertified title, and limitation. The court declined to declare Sections 152E and 152F unconstitutional, holding they protect access to justice before eviction, and held that barring DCI investigations was outside its jurisdiction. Injunctions and a mandamus protecting the Petitioners' titles issued; the cross-petition was dismissed with costs to the Petitioners.

Key legal issues

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01

Ownership of L.R No. 209/107772 (now L.R No. 209/16432 and 209/16433)

Holding

The Petitioners, as bona fide purchasers from the registered proprietor Abdi Rahiman Abdi, are the lawful owners; the claims of the 3rd and 4th Respondents fail

Reasoning

The 3rd Respondent's stake was converted by the NLC decision into a right to compensation, which it enforced as a decree in Milimani ELC Misc. No. 195 of 2019, so it cannot also claim ownership. The 4th Respondent's allotment was a second allotment over alienated land, addressed to an organization registered only in 2013, with an uncertified title, and any fraud claim accrued in 2005 was statute-barred. The Petitioners dealt with the registered proprietor and took without notice of defect.

p. 24
02

Validity of the eviction notices issued by the 3rd Respondent

Holding

The eviction notice dated 30th May 2020 was invalid and a nullity ab initio and was recalled, rescinded and nullified

Reasoning

The notice principally referred to L.R No. 209/107778, a parcel distinct from and not belonging to the 3rd Respondent, and neither 209/16432 nor 209/16433 was registered in its name. Moreover, where ownership is contested or parallel titles exist, a Section 152E notice cannot legally issue. The 3rd Respondent also knew it had been awarded compensation in lieu of ownership.

p. 26
03

Compensation for trespass claimed by the 3rd Respondent

Holding

Declined; although trespass is actionable per se, the 3rd Respondent had already been decreed compensation by the NLC decision as adopted by the court

Reasoning

Had the 3rd Respondent proved title it would be entitled to damages without proof of loss, but the NLC had awarded compensation and the court adopted that award as a decree. A further award would be double-jeopardy and would amount to unjust enrichment alongside the compensation claim.

p. 27
04

Constitutionality of Sections 152E and 152F of the Land Act, 2012 (2016)

Holding

The impugned sections and the regulations made thereunder are constitutional and lawful

Reasoning

The provisions require prescribed notice before eviction and afford recipients a right to approach court, consistent with Articles 10(2), 48 and 50(1). They embody U.N Guidelines on evictions and were enacted to avert surprise evictions. The Petitioners failed to identify in what manner the sections are inconsistent with the Constitution, and purpose and effect both support validity.

p. 30
05

Whether the DCI may be prohibited from investigating title acquisition

Holding

The declaration sought falls outside the jurisdiction of the Environment and Land Court; the DCI may investigate where there is a reasonable basis, subject to constitutional compliance

Reasoning

The question whether the 5th Respondent would act within its mandate belongs to the High Court under Article 165(3)(d). A court cannot usurp the statutory mandate of a constitutional or statutory body on mere apprehension. Concurrent civil and criminal processes may coexist absent ulterior motive or collateral purpose.

p. 31
06

Parties are bound by their pleadings

Holding

The court cannot grant positive orders in favour of the 4th Respondent absent precipitate pleadings challenging the Petitioners' titles

Reasoning

The 4th Respondent filed only a Replying Affidavit and no Cross-Petition to impeach the alleged fraudulent titles. Evidence at variance with pleadings goes to no issue and must be disregarded, and parties must prepare their evidence on the issues as joined.

p. 23

Legal principles established

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  • An eviction notice under Section 152E of the Land Act can only validly issue from a registered or legitimate owner of the designated parcel; a notice issued by a non-owner or where ownership is contested is a nullity
  • A letter of allotment alienates un-alienated Government land absolutely; once issued and complied with, the property cannot be the subject of a second or further letter of allotment
  • A bona fide purchaser for value from a registered proprietor with apparent valid title, without notice of fraud and not party to any fraud, is entitled to protection under the doctrine of bona fide purchase
  • A party who has accepted and enforced a compensation award in lieu of ownership of land cannot revert to court and stake a claim to ownership of the same property
  • Sections 152E and 152F of the Land Act, 2012 (2016) are constitutional; they give effect to access to justice and due-process protections before eviction
  • A court cannot usurp the statutory mandate of a constitutional or statutory body, such as the DCI, based on mere apprehension without credible basis

Court orders

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  1. 1.Declaration that the Petitioners are the registered proprietors of their properties in Green Two Estate, South C, City County of Nairobi and the properties are private land under Article 64 of the Constitution and not public land under Article 62
  2. 2.Declaration that the Petitioners acquired the properties as innocent purchasers without notice of any irregularity and lawfully and without any corruption in which any of them was involved
  3. 3.Order of Injunction restraining the 3rd Respondent, Limbani Dispensary Project Group, its servants and workmen from entering upon, interfering with, pulling down or disposing of the Petitioners' properties at Green Two Estate, South C
  4. 4.Order of Temporary Injunction restraining the 3rd Respondent from enforcing the Notice to Vacate Land dated May 2020 issued under regulations 63(1), 64(1) and 65 of the Land Regulations, 2017
  5. 5.Order of Judicial Review in the nature of mandamus directing the 1st Respondent to protect the titles and records of the Petitioners' registered private land parcels and to observe the Law and the Constitution in dealing with the property
  6. 6.The Cross-Petition by the 3rd Respondent is dismissed
  7. 7.The rest of the Reliefs/Declarations not expressly granted are deemed declined
  8. 8.Costs of the Petition and Cross-Petition awarded to the Petitioners jointly and/or severally
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011

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, "Green Two Estate Owners and Residents Association Represented by Hassan Ahamedunur Baricha & 6 others v Chief Land Registrar & 5 others (Environment and Land Constitutional Petition 3 of 2020) [2022] KEELC 2255 (KLR)", Case Analysis (2022). Petition dated 30th July 2020 (Environment and Land Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2255/eng@2022-06-02

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