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ELCPartially AllowedNot stated in judgment (commenced by Plaint on 9th October, 2009)· [2022] KEELC 2820 (KLR)

Garden Square Limited t/a Garden Square Restaurant v County Government of Nairobi & 3 others (Environment & Land Case 526 of 2009) [2022] KEELC 2820 (KLR)

Environment and Land Court
30 June 2022
6,429 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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The court declared a Nairobi restaurant site to be un-alienated public land, vindicating the restaurant's occupancy but leaving allocation to the National Land Commission.

What this practically means

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Executive summary

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The Plaintiff, Garden Square Restaurant Ltd, in occupation of the suit property (L.R No. 209/2676) since 1977, sued the County Government of Nairobi, the Board of the City Council of Nairobi, KICC and the National Land Commission, seeking permanent injunctions, declarations that the suit property is public land which the NLC must administer, and an order that it be allocated a lease. A presidential directive of 17th May 1999 directed it to pay rent to KANU, triggering competing rent claims by the City Council and KICC, and leading to the filing of HCCC 794 of 2001. The 1st and 2nd Defendants counterclaimed for Kshs 21,030,000 in rental arrears but called no witness at trial. The court found, applying the burden of proof provisions of the Evidence Act, that the Defendants failed to prove ownership: the 1st and 2nd Defendants' pleadings were unsubstantiated, KICC produced no evidence of any handing over or alienation, and its own application to the NLC for allocation was an admission of no ownership rights. The court declared the suit property un-alienated public land vesting in the County Government of Nairobi and to be managed by the NLC, directed that all applications for allocation (including the Plaintiff's) be considered under the Land Act and the 2017 Regulations, ordered future rent to be paid to the NLC for onward transmission to the County Government, released the rent deposited in court to the County Government, and issued conditional permanent injunctions. The counterclaim was dismissed with costs, and costs of the suit were awarded jointly and severally against the 1st and 3rd Defendants.

Key legal issues

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01

Whether the suit property (Garden Square Restaurant, L.R No. 209/2676) is public land

Holding

Yes - the suit property is un-alienated public land vesting in the County Government of Nairobi and to be managed by the NLC.

Reasoning

The 1st and 2nd Defendants produced no evidence (no PDP, allotment letter or map) to substantiate their claim of ownership, and the 3rd Defendant demonstrated no process of handing over or alienation in its favour. The 3rd Defendant's own application to the NLC for allocation of the suit property was an admission of no ownership rights, and NLC evidence confirmed the land was never alienated.

p. 9
02

Whether the 1st, 2nd or 3rd Defendants have any rights over the suit property, including the right to collect rent

Holding

None of them proved ownership; the 3rd Defendant had no legal right to lease or collect rent, and its purported lease was irregular.

Reasoning

The suit property does not form part of L.R 209/11157 which belongs to KICC; the 1st and 2nd Defendants failed to call evidence and did not prove they constructed or paid for the restaurant and lavatories; possession and receipt of rent did not establish ownership.

p. 9
03

Management and allocation of un-alienated public land under Article 67(2)(a), Section 5(2)(a) NLC Act, Section 12 Land Act and the 2017 Regulations

Holding

The suit property should revert to the NLC to manage on behalf of the County Government of Nairobi, and any allocation must strictly comply with the law with reasons for preferring an applicant given in writing.

Reasoning

Article 62(1)(a) read with 62(2)(a) vests unalienated government land in the county government, managed by the NLC; allocation requires the consent of the County Government of Nairobi, and no evidence showed the statutory process was followed, particularly where the NLC purported to allocate the land to the 3rd Defendant during the pendency of the suit.

p. 10

Legal principles established

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  • Pleadings and documents filed but not formally produced or proved by testimony do not constitute evidence; a party who does not call evidence relegates its pleadings to mere unsubstantiated assertions.
  • An application by a party to the NLC for allocation of un-alienated public land is an admission that the party has no ownership rights over that land.
  • Allocation of un-alienated public land must strictly comply with the statutory provisions, the circumstances of all applicants must be considered, and reasons for preferring one applicant over others must be given in writing.

Court orders

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  1. 1.A declaration that the suit property constitutes un-alienated public land.
  2. 2.A declaration that the National Land Commission is under a constitutional and statutory duty to administer, manage and allocate the suit property on behalf of the 1st Defendant in strict compliance with the Constitution, section 12 of the Land Act and the Land (Allocation of Public Land) Regulations, 2017.
  3. 3.A declaration that the application by the Plaintiff for the allocation of the suit property, alongside others, be considered, and all the circumstances pertaining to the suit property be evaluated by the NLC as provided for under the Land Act and the Land (Allocation of Public Land) Regulations, 2017.
  4. 4.An order directing the Plaintiff to forthwith pay the rent, save for the rent already paid to the Defendants, to the 4th Defendant for onward transmission to the County Government of Nairobi until the process of allocating the suit property is completed.
  5. 5.The rent deposited in court by the Plaintiff during the pendency of this suit to be released to the County Government of Nairobi.
  6. 6.Subject to the payment of rent and the allocation of the suit property, a permanent injunction restraining the County Government of Nairobi, the Board of the City of Nairobi and the Kenyatta International Conference Centre from trespassing upon the suit property.
  7. 7.Subject to the payment of rent and the allocation of the suit property, a permanent injunction restraining the said Defendants from ejecting or removing the Plaintiff or its servants and/or agents from the suit property.
  8. 8.Subject to the payment of rent and the allocation of the suit property, a permanent injunction restraining the said Defendants from trespassing into the suit property and installing metal clamps upon motor vehicles parked at City Hall Way within the parking area reserved for the Plaintiff.
  9. 9.The 1st and 2nd Defendants' counter-claim is dismissed with costs.
  10. 10.Costs of the suit to be paid by the 1st and 3rd Defendants jointly and severally.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 60, 61(2), 62(1)(a)(b)(d)(m), 62(2)(a)(3), 67(1), 67(2)(a)
  • National Land Commission ActSections 3(a), 5(1), 5(2)(a) and (2)
  • Land Act, 2012Section 12(1)
  • Land (Allocation of Public Land) Regulations, 2017Rule 3(2)
  • Evidence Act, Cap 80Sections 107, 109, 112

Cases cited (2)

  • Mumbi M'Nabea v David M. Wachira
    [2016] eKLR
  • Kenneth Nyaga Mwige v Austin Kiguta and 2 Others
    [2015] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - jurisdiction over public land disputes under Article 62 read with the National Land Commission Act and the Land Act

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, "Garden Square Limited t/a Garden Square Restaurant v County Government of Nairobi & 3 others (Environment & Land Case 526 of 2009) [2022] KEELC 2820 (KLR)", Case Analysis (2022). Not stated in judgment (commenced by Plaint on 9th October, 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2820/eng@2022-06-30

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