Joseph Wambua Mulusya & 2 Others v Industrial Development Bank Limited & 3 Others
The bottom line
#A Kenyan court ruled that permission to develop public parking land doesn't give you ownership, and only ordered return of specific movables.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st plaintiff acquired title or ownership of the suit property through the Commissioner of Lands' letter of 16th July 1985
No proprietary interest was acquired; the letter only permitted development and use of the parking site for the hotel's clients and the public
The Commissioner of Lands expressly stated the parking site could not be allocated to the 1st plaintiff but could be developed for use by his clients and the public to the satisfaction of the Nairobi City Commission, and that development costs would not be reimbursed. The land was planned and reserved for public parking. Such a permission to develop for shared use cannot amount to alienation for exclusive private use, and the interest did not survive the hotel's receivership and sale.
Whether the 1st, 3rd and 4th defendants sold or transferred the suit property to the 2nd defendant
They did not; the 2nd defendant did not acquire the suit property from the sellers and is on it as a tenant of the registered owner, Peter Gatheca Gachiri
The suit property was not charged to the 1st defendant and was not the subject of the sale agreement. The 2nd defendant testified he did not purchase the suit property and occupies it under a 10-year lease from the registered owner. The inclusion of movable items located on the 'Garden Bar' and 'Compound' in the schedule of movables sold does not mean the land itself was sold, since those were movable, not immovable, properties.
Whether the title held by Peter Gatheca Gachiri over the suit property was fraudulent
The court declined to determine the legality of the title because the registered owner was not joined as a party
The plaintiffs led evidence of anomalies in the lease, certificate of lease and search, and official correspondence suggested forgery, but Peter Gatheca Gachiri was not joined. Natural justice forbids condemning him unheard. The 2nd defendant's acquittal in Milimani CMC Criminal Case No. 744 of 2012 for forgery, with no appeal, was also noted. The issue remains unresolved in this suit.
Whether the 2nd and 3rd plaintiffs own movable properties on the suit property recoverable from the 2nd defendant
Yes; the generator and certain furniture and equipment listed under 'Garden Bar' and 'Compound' belonged to the 2nd and 3rd plaintiffs and were not charged to the 1st defendant
The court found the plaintiffs demonstrated that the 40 KVA Wilson Generator belonged to the 3rd plaintiff and that various movables on the 'Garden Bar' and 'Compound' belonged to the 2nd plaintiff. Although the claimed items did not exactly match the sale schedule, doing the best it could the court granted access to collect specifically enumerated items still in existence on the suit property.
Whether the failure to date the amended plaint rendered the suit fatally defective
No; the irregularity was overlooked in favour of substantive justice
The amended plaint on the court file was signed by the plaintiffs' previous advocates but undated. The court held failure to date a pleading is not fatal, the defect could have been corrected had it been raised earlier, all defendants responded without objection, and no prejudice was occasioned. Substantive justice prevailed over the procedural irregularity.
Legal principles established
#- A permission to develop land reserved for public use (such as public parking) does not amount to alienation of the land or confer a proprietary interest on the person permitted
- A court cannot make a finding on the legality of a title in the absence of the registered owner who has not been joined as a party
- Failure to date a pleading is not a fatal defect, especially where no objection was raised earlier and no prejudice was occasioned
- Damages for conversion and an order for recovery of the converted property cannot be obtained simultaneously
Court orders
#- 1.The 2nd defendant shall within 14 days from the date of judgment grant to the 2nd and 3rd plaintiffs access to the suit property, L.R No. Nairobi/Block 75/1036 to collect, if still in existence on the property: 40 KVA Wilson Generator Serial No. 39644A/001, 13 wooden square tables (size 3.1' x 3.1' x 2.5' Height), 56 metal framed visitors' chairs and one 14 inch JVC Super Multi (F Series) Television Set Model AV-14FMG3B
- 2.Each party shall bear its own costs of the suit
- Jurisdiction invoked
- Original civil suit on the plaint filed 26th June 2009 (land and environment jurisdiction); no specific constitutional or statutory provision stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Wambua Mulusya & 2 Others v Industrial Development Bank Limited & 3 Others", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/498/eng@2023-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.