Nyabera & another v Machakos County & 2 others (Environment & Land Case 224 of 2014) [2022] KEELC 3440 (KLR)

Environment and Land Court

6 July 2022

ANA Nyukuri

2,604 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~10 min to read original · ~4 min brief

The bottom line

A buyer who purchased land sold before subdivision approval could only recover her purchase price, because the plots had lawfully become public land.

What this practically means

Executive summary

By a plaint dated November 25, 2014, two plaintiffs claimed they each purchased plots (LR No 12715/65/2 and LR No 12715/65/3) from the 3rd defendant in 2005 at Kshs 200,000 each, paying in full. In 2008 and 2009 the properties were declared surrendered for public utilities. The plaintiffs sought a declaration that the surrender was illegal, null and void, rectification of the register, a permanent injunction, or alternatively payment at commercial rates, plus costs. The 1st and 2nd defendants denied liability, asserting the sale was a private contract with the 3rd defendant and that the subdivision approval lawfully required surrender of the plots for public utilities. The 3rd defendant did not enter appearance. Only the 1st plaintiff testified; the 2nd plaintiff did not. The court framed two issues: whether the surrender was unlawful and whether the 1st plaintiff was entitled to the orders sought. The court held that under section 29(b) of the repealed Physical Planning Act, the surrender as a condition of the approved subdivision scheme was lawful, and that the illegality lay with the 3rd defendant, who sold the land before obtaining subdivision approval, and indeed before becoming registered proprietor. The declaration, rectification and injunction were refused as the surrendered land was public land not available for registration. Since no evidence of 'commercial rates' was tendered, the court awarded the proven purchase price of Kshs 150,000 (per the bankers cheque) with interest from the 3rd defendant. The claim against the 1st and 2nd defendants and the 2nd plaintiff's entire claim were dismissed, with costs of the suit against the 3rd defendant.

Key legal issues

Whether the surrender of the suit property for public utility was unlawful

Holding

The surrender was lawful, having been done as a condition of the approved subdivision scheme under section 29(b) of the Physical Planning Act; what was unlawful was the 3rd defendant's sale of the land before obtaining the statutory approvals

Reasoning

The court noted the surrender was not in dispute, only its legality. The 3rd defendant sold to the 1st plaintiff in February 2005, before becoming registered proprietor in December 2005 and before subdivision approval. The local authority's approval was conditional on surrender for public utilities, done in compliance with the Physical Planning Act. Hence the surrender was valid and the land became public land.

p. 4

Whether the 1st plaintiff is entitled to the orders sought in the plaint

Holding

Only partially - a refund of the proven purchase price of Kshs 150,000 with interest from the 3rd defendant; declaration, rectification and injunction refused

Reasoning

Article 40 protects property, but the surrendered land is public land not available for registration. The injunction falls away as the property is not the plaintiff's. Payment at commercial rates failed for want of evidence; only the Kshs 150,000 shown on the bankers cheque was proven, so refund with interest against the 3rd defendant for breach of contract was ordered.

p. 5

Liability of the 1st and 2nd defendants and the 2nd plaintiff's claim

Holding

Claim against 1st and 2nd defendants dismissed for lack of proof of liability; 2nd plaintiff's claim dismissed for failure to adduce evidence

Reasoning

Subdivision approvals are a matter between the registered proprietor and the 1st defendant; the 1st and 2nd defendants were not privy to the sale contract and no collusion was proved. The 2nd plaintiff never testified or filed documents, and the burden of proof rests on the plaintiff throughout.

p. 5

Legal principles established

A registered proprietor under the Registration of Titles Act had indefeasible and absolute title
A vendor may not lawfully sell land comprised in a proposed subdivision scheme before obtaining the statutory subdivision approvals, and a surrender of plots for public utilities made as a condition of approval is lawful
The burden of proof lies on the plaintiff to prove their claim; a plaintiff who does not testify fails to discharge it

Court orders

1.Judgment entered for the 1st plaintiff against the 3rd defendant for Kshs 150,000 together with interest at court rates from the date of filing suit until payment in full
2.The 3rd defendant shall pay costs of the suit
3.The 1st plaintiff's suit against the 1st and 2nd defendants is dismissed with no order as to costs
4.The 2nd plaintiff's suit against all the defendants is dismissed with no order as to costs

Authorities

Legislation

Constitution of Kenya, 2010Article 40
Registration of Titles Act, cap 281 (now repealed)section 23
Physical Planning Act, cap 286 (now repealed)section 29(b)

Cases cited (3)

Linus Nganga Kiongo & 3 others v Town Council of Kikuyu
[2012] eKLR
Edward Mariga through Stanley Mobisa Mariga v Nathaniel David Schulter & another
[1997] eKLR
Kenya Power & Lighting Company Limited v Pamela Awino Ogunyo
[2015] eKLR

Jurisdiction invoked: Original jurisdiction under Article 40 of the Constitution of Kenya 2010 (protection of property rights); land dispute within the jurisdiction of the Environment and Land Court

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Nyabera & another v Machakos County & 2 others (Environment & Land Case 224 of 2014) [2022] KEELC 3440 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3440/eng@2022-07-06

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