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ELCPartially AllowedEnvironment and Land Case Civil Suit E055 of 2021· [2023] KEELC 15765 (KLR)

Dim Agencies Limited v Kenya Airports Authority

Environment and Land Court
23 February 2023
13,632 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~55 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled a title to land reserved for JKIA, confirming that a certificate of title cannot protect land illegally carved from public land.

What this practically means

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Executive summary

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Dim Agencies Limited sued Kenya Airports Authority claiming to be the bona fide registered owner of LR No 9042/617, alleging trespass and violation of Article 40, and seeking declarations, general damages of KES 100,000,000 and compensation of KES 20,000,000. After a default judgment was set aside, KAA filed a defence and counterclaim seeking revocation of the plaintiff's title as land falling within JKIA. The plaintiff's director admitted he produced no sale agreement, no certificate of incorporation, and conducted no due diligence before purchase; both plaintiff witnesses conceded the property is accessible only through the airport gate and lies within the airport security zone. KAA's surveyor (DW3) gave uncontroverted evidence that the 1996 survey of the suit property overlapped LR No 7075/10, compulsorily acquired in 1971 for airport expansion. The court first struck out the plaintiff's verifying affidavit, having found sua sponte that it was commissioned by an advocate sharing the plaintiff's law firm's address, contrary to the proviso to Section 4(1) of the Oaths and Statutory Declarations Act, rendering the suit incompetent, though it proceeded to the merits. On the merits, the court held the suit property was reserved public land unavailable for alienation; the predecessor acquired no valid title, and ex nihilo nihil fit, nothing passed to the plaintiff. The plaintiff's suit was dismissed. Judgment was entered on the counterclaim in part: the plaintiff's title was revoked and cancelled, surrender of the title to the Chief Land Registrar within 60 days was ordered, and a permanent injunction issued; the defendant's claim for general damages was dismissed as it had always been in occupation and proved no loss. Each party was ordered to bear its own costs.

Key legal issues

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01

Validity of the verifying affidavit commissioned in-house

Holding

The verifying affidavit sworn before a commissioner sharing the plaintiff's law firm's address offended the proviso to Section 4(1) of the Oaths and Statutory Declarations Act and was struck out; without it the plaint was incompetent, though the court proceeded to determine the merits

Reasoning

The commissioner's postal address matched that of the plaintiff's advocates, showing she was a partner, associate or interested person in the retained firm. Section 4(1) prohibits such commissioning. Following R.E Bagley, James Francis Kariuki, Caltex Oil and Stephen Mogaka, the court held such an affidavit a nullity, struck it out, and found the suit would have been struck out but for the evidence already taken.

p. 17
02

Whether the plaintiff acquired lawful and legitimate title

Holding

No. The suit property fell within public land reserved for JKIA; the predecessor acquired no valid title, so nothing passed to the plaintiff despite the certificate of title

Reasoning

PW1 and PW2 admitted the property is accessed through the airport gate and lies within the airport security zone. The plaintiff produced no sale agreement, no Part Development Plan and did no due diligence. Applying Benja Properties, Kathurima, Funzi Island and Caroget, the court held the alienation of reserved public land was a nullity and the certificate of title conferred no ownership rights.

p. 21
03

Whether the suit property was public land reserved for a designated purpose

Holding

Yes. The defendant proved the property overlapped LR No 7075/10, compulsorily acquired in 1971 for airport expansion, and was unavailable for alienation

Reasoning

DW3, a registered surveyor, gave uncontroverted evidence that the 1996 survey of LR 9042/617 encroached onto LR 7075/10 acquired under Gazette Notices 1105 and 1106 of 30 April 1971. The plaintiff called no surveyor to contradict him. The overlap would have been avoided had a Part Development Plan been generated before alienation. The title must give way.

p. 23
04

Reliefs

Holding

Plaintiff's suit dismissed; counterclaim allowed in part - title revoked and cancelled, surrender ordered, permanent injunction issued; general damages refused for both sides

Reasoning

Having found no valid title, the declarations and damages for trespass and Article 40 violation could not stand. The court indicated it would have awarded KES 20,000,000 general damages had the plaintiff succeeded, and held a separate Article 40 award would be duplicitous. The defendant's damages claim failed as it was always in occupation and proved no loss.

p. 25

Legal principles established

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  • A partner or associate in the law firm retained by a party cannot commission an affidavit prepared by that firm; such an affidavit is a nullity and must be struck out
  • Public land reserved for a designated public purpose is not available for alienation or allocation; an alienation by the Commissioner of Lands without authority is a nullity, not merely voidable
  • A predecessor without valid title cannot transmit title; a bona fide purchaser derives no better title than the vendor had
  • Indefeasibility of title does not protect a title founded on an illegal or irregular allocation; a registered proprietor of allocated land has indefeasible title only if the allocation was legal, proper and regular

Court orders

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  1. 1.The Plaintiff's suit be and is hereby dismissed
  2. 2.The title over and in respect of LR No 9042/617, I.R No 69538, in the name of the Plaintiff be and is hereby revoked and cancelled
  3. 3.The Plaintiff shall surrender and hand over the Certificate of Title of LR No 9042/617, IR No 69538, to the Chief Land Registrar for cancellation within 60 days from the date thereof
  4. 4.Permanent injunction issued against the Plaintiff, barring it from entering upon, interfering with or in any way dealing with the certificate of title in respect of LR No 9042/617 and the property bearing the said details
  5. 5.The Defendant's claim for general damages be and is hereby dismissed
  6. 6.Each party to bear its own costs of the proceedings
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land (Article 162(2)(b) Constitution; ELC Act) - not expressly stated 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, "Dim Agencies Limited v Kenya Airports Authority", Case Analysis (2023). Environment and Land Case Civil Suit E055 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15765/eng@2023-02-23

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