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ELCDismissedNot stated in the judgment· [2022] KEELC 2263 (KLR)

Mughal v Chief Land Registrar & 2 others (Environment & Land Case 302 of 2018) [2022] KEELC 2263 (KLR)

Environment and Land Court
17 May 2022
5,019 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The plaintiff, Shalien Masood Mughal, sued the Chief Land Registrar and two other defendants, seeking damages of Kshs 127,953,997, general and exemplary damages, costs and interest, on the basis that the Chief Land Registrar breached his statutory duties by issuing and transferring Grant IR 90629 over LR No. 209/12258 which he alleged was a nullity because the land was earmarked as a slip road access. The 1st and 3rd defendants denied the claim, asserting the property fell within land planned for a slip road since 1976 and any allocation was null and void; the 2nd defendant filed no documents. The court framed three issues: whether the grant related to a public road reserve; whether the alienation and grant were lawful; and whether the plaintiff was entitled to the reliefs. Relying on the uncontroverted evidence of DW1 (Survey Report, Development Plan No. 305 and a Part Development Plan approved in 1986 on which the land does not appear), the court found the suit property was a public road reserve at all times. Applying Munyu Maina, Chemey Investment and KeNHA v Mughal, it held the plaintiff, as holder of an impeached title, had failed to prove lawful acquisition; the alienation breached Sections 22, 27 and 42 of the Physical Planning Act and the Commissioner of Lands lacked authority under Section 3 of the Government Lands Act to allocate road reserve land, rendering the allocation null and void. All prayers were rejected, with each party bearing their own costs. The plaintiff was directed to pursue the vendors/allottees whom he had not joined.

Key legal issues

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01

Whether the suit property is a public road reserve

Holding

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

Reasoning

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.

p. 6
02

Whether the alienation and procurement of the Grant were lawful

Holding

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

Reasoning

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.

p. 9
03

Whether the plaintiff is entitled to the reliefs sought

Holding

No - all prayers are rejected; the plaintiff should pursue the vendors/allottees whom he elected not to join

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 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. 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

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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, "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.