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ELCPartially AllowedNot stated in the judgment as provided· [2023] KEELC 261 (KLR)

Mwakitele alias Swabrina & 10 others v Karama & 2 others (Environment & Land Case 77 of 2018) [2023] KEELC 261 (KLR)

Environment and Land Court
24 January 2023
2,653 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Mombasa court cancelled a company's land title as illegally issued and protected squatters' homes, so always verify how government land was originally allocated.

What this practically means

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Executive summary

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Eleven plaintiffs, holding allotment letters for plots within the Maganda Squatter Settlement Scheme in Miritini, Mombasa, sued the 1st and 2nd defendants for a mandatory injunction restraining them from erecting a perimeter wall on or demolishing houses on land the plaintiffs occupy, and for a declaration that they own the portions allocated to them by the national government. The defendants, who claimed ownership of Mombasa/MN/VI/3804 issued in 1994, counterclaimed for the plaintiffs' eviction and damages for trespass. A court-ordered survey by the Coast Regional Surveyor revealed that MN/VI/3804 sat in the middle of the settlement scheme, had been subdivided into 36 plots, and that the plaintiffs' houses fell within those new subdivisions rather than on their allotted plots. The court held that the land was un-alienated government land under the repealed Government Lands Act and that only the President could alienate it, the Commissioner of Lands' delegated powers being limited to religious, charitable, educational or sports purposes. The defendants produced only a certificate of lease and no evidence that the statutory alienation procedure was followed; their title was declared illegally alienated, null and void. The plaintiffs' suit succeeded and the defendants' counterclaim was dismissed. A mandatory injunction issued, the plaintiffs' ownership of their allocated portions was declared, and costs were awarded to the plaintiffs. The court recommended that the National Land Commission and Department of Survey make fresh allocations to avoid double allocation.

Key legal issues

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01

Authority of the Commissioner of Lands to alienate un-alienated government land

Holding

The Commissioner of Lands had no authority to alienate the suit property to the defendants; the delegated powers were limited to religious, charitable, educational or sports purposes, and the resulting title was null and void

Reasoning

Section 3 of the Government Lands Act vested the power to alienate un-alienated government land in the President, with delegation to the Commissioner limited to specific purposes. The 2nd defendant's memorandum showed it was a profit-making company, so no exception applied. Relying on the Court of Appeal in James Joram Nyaga and the Supreme Court's advisory opinion, the court held the alienation was without jurisdiction and a nullity.

p. 5
02

Location of the plaintiffs' occupation relative to the scheme and MN/VI/3804

Holding

The government survey report established that the plaintiffs' houses fall within the original MN/VI/3804, not within the plots for which they hold allotment letters, and that MN/VI/3804 lies within Maganda Settlement Scheme

Reasoning

A court-ordered survey by the Coast Regional Surveyor showed MN/VI/3804 had been subdivided into 36 plots and that the plaintiffs' houses fell within those new numbers. Although their allotment letters related to plots outside MN/VI/3804, the plaintiffs were in physical occupation of the suit land. The court resolved the resulting mismatch in favour of the plaintiffs and found the suit parcel fell within the settlement scheme.

p. 4
03

Defendants' counterclaim for eviction and damages for trespass

Holding

The counterclaim failed because the defendants' root of title was an illegal alienation; the counterclaim was dismissed with costs

Reasoning

Other than the certificate of lease, the defendants produced no evidence that the statutory procedure for alienation was followed, and no evidence from the Director of Surveys. Since the Commissioner of Lands acted without authority, no registerable title passed, so the defendants could not sustain eviction or trespass damages against the plaintiffs.

p. 5

Legal principles established

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  • Only the President, and not the Commissioner of Lands, had power under section 3 of the Government Lands Act to alienate un-alienated government land, save for limited delegated purposes; an alienation outside that authority is a nullity

Court orders

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  1. 1.A mandatory injunction directed to the defendants, their agents, employees and/or servants from building a perimeter wall and/or demolishing the plaintiffs' houses within Maganda Settlement Scheme
  2. 2.A declaration that the plaintiffs are the owners of the disputed parcel of land being the portions allocated to them by the National Government of Kenya, within Maganda Squatter Settlement Scheme
  3. 3.Costs of the suit to the plaintiffs; the defendants' counterclaim dismissed with costs

Authorities

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Legislation

  • Government Lands Act, Cap 286 Laws of Kenya (repealed)Section 2
  • Government Lands Act, Cap 286 Laws of Kenya (repealed)Section 3
  • Government Lands Act, Cap 286 Laws of Kenya (repealed)Section 7
  • Registration of Titles Act (repealed)Not specified

Cases cited (2)

  • James Joram Nyaga & another v Attorney General & another
    (2019) eKLR
  • In the Matter of the National Land Commission
    (2015) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (not expressly cited in the excerpt; jurisdiction inherent in the claim concerning land within Mombasa County)

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, "Mwakitele alias Swabrina & 10 others v Karama & 2 others (Environment & Land Case 77 of 2018) [2023] KEELC 261 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/261/eng@2023-01-24

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