Mughal v Chief Land Registrar & 2 others (Environment & Land Case 302 of 2018) [2022] KEELC 2263 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled a Nairobi land title was invalid because the property sat on a public road reserve, dismissing the owner's Kshs 127.9 million claim.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit property is a public road reserve
Yes - the suit property was and remains a public road and road reserve at all times and was never available for alienation for private purposes
The Attorney General produced a Survey Report of 26/11/2013 showing the property in the Nairobi Development Plan No. 305 and FR 178/104 as part of Mombasa Road and road reserve, plus a Part Development Plan approved on 20/06/1986 on which the plaintiff's land does not appear. The plaintiff led no survey report or approved physical plan; his evidence was a valuation report without a survey and development plans without Bills of Quantities. DW1's evidence was uncontroverted.
Whether the alienation and procurement of the Grant were lawful
No - the alienation and grant were not lawfully procured because Sections 22, 27 and 42 of the Physical Planning Act were not complied with; the Commissioner of Lakes also lacked authority to alienate already-alienated road reserve land
There was no prior approved re-planning to change the user of the land from public road reserve. Even assuming the land was un-alienated, Section 3 of the Government Lands Act vested the power to alienate un-alienated Government land in the President, with limited delegations not applicable here. The purported allocation was therefore null and void, and the plaintiff's title arising from that process cannot be good title under Section 26 of the Land Registration Act.
Whether the plaintiff is entitled to the reliefs sought
No - all prayers are rejected; the plaintiff should pursue the vendors/allottees whom he elected not to join
Having declared the purported alienation null and void, the plaintiff's title is not good. The plaintiff knew the persons who procured the illegal alienation and title but did not join them as defendants. Under Section 26 of the Land Registration Act a title acquired illegally or through a corrupt scheme may be challenged and cancelled. The court adopted the approach in Moses Okata Owuor that a title obtained irregularly is null and void and must be cancelled.
Legal principles established
#- A registered proprietor whose title is challenged must prove the legality of how the title was acquired, not merely dangle the title document
- Alienation of a planned and surveyed public road reserve without a fresh approved physical plan is illegal and the resultant title is a nullity
- The Commissioner of Lands had no authority under Section 3 of the Government Lands Act to grant or dispose of land that formed part of a public road
- A road reserve is an overriding interest that need not be noted on the register
Court orders
#- 1.All the prayers sought by the Plaintiff are rejected on the grounds that the said grant relates to a public road reserve; was issued irregularly and illegally; and the allocation is illegal, null and void
- 2.Parties shall bear their respective costs of this suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a claim concerning title to land (statutory basis not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mughal v Chief Land Registrar & 2 others (Environment & Land Case 302 of 2018) [2022] KEELC 2263 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2263/eng@2022-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.