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ELCPartially AllowedEnvironment & Land Case 624 of 2013 & 277 of 2014 (Consolidated)· [2023] KEELC 16630 (KLR)

Malonza & 2 others v Nairobi County, (formerly Nairobi City Council) & 2 others

Environment and Land Court
23 March 2023
14,252 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~57 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court confirmed three Nairobi plot owners' titles and blocked the National Youth Service from evicting them.

What this practically means

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Executive summary

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Three plaintiffs sued Nairobi County, the Attorney General (for the National Youth Service) and the Commissioner of Lands, seeking declarations that they were the bona fide owners of plots 20, 31, 52 and 47 at Mathare North Light Industries, a permanent injunction against eviction by the NYS, cancellation of title L.R No. 24901 to the extent it overlapped their plots, and issuance of titles to them. The 1st Defendant conceded the plaintiffs were bona fide allottees; the 2nd and 3rd Defendants asserted the whole of L.R No. 24901 was compulsorily acquired for the NYS. The court framed four issues. On the evidence of the Deputy Chief Land Registrar (DW3), it found only L.R Nos. 217/1 and 217/2 were compulsorily acquired - and for the Mathare North Site and Service Scheme, not the NYS - while the disputed extension portion was never acquired. It held the disputed portion belonged to the City Council of Nairobi, which lawfully allocated the plots to the plaintiffs in 1994 following due process; the Commissioner of Lands could not alienate trust land on the Council's behalf without its concurrence. The NYS's letter of allotment of 3rd March 1999, issued over land already allocated and developed by third parties, was a nullity, and the subsequent certificate of title over L.R No. 24901 was irregularly procured in collusion with the Commissioner of Lands. The court found no counterclaim had been filed by the 2nd Defendant. Judgment was entered for the plaintiffs with declarations of ownership, cancellation and re-survey of L.R No. 24901, registration of the plots to the plaintiffs, a permanent injunction against eviction, and costs to the plaintiffs.

Key legal issues

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01

Whether the entirety of L.R No. 24901 was compulsorily acquired for the 2nd Defendant

Holding

Only L.R No. 217/1 and 217/2 were compulsorily acquired, and for Mathare North Site and Service Scheme, not for the 2nd Defendant; the disputed extension portion was never compulsorily acquired.

Reasoning

The 2nd and 3rd Defendants bore the burden of proving compulsory acquisition. Their own witness, the Deputy Chief Land Registrar (DW3), conceded under cross-examination that the portion proposed for extension was outside the compulsorily acquired land and that he had no evidence of its acquisition. The gazette notice showed acquisition for the Site and Service Scheme, a purpose never changed to NYS.

p. 16
02

Whether the disputed portion belonged to the 1st Defendant and whether the 1st Defendant had capacity to allocate the suit plots

Holding

The disputed portion lawfully belonged to the 1st Defendant (City Council of Nairobi), which had capacity to allocate the plots; the Commissioner of Lands could not alienate it on the Council's behalf without its concurrence.

Reasoning

The Commissioner's own letter of allotment of 3rd March 1999 purported to allocate on behalf of the City Council, confirming the land belonged to the Council; the 2nd and 3rd Defendants cannot approbate and reprobate. DW1's evidence established the Council followed due process (PDP, Town Planning Committee approval) in allocating plots to the Plaintiffs. Under the Trust Lands Act, alienation required the local authority's concurrence.

p. 20
03

Whether the portion allocated to the 2nd Defendant by letter of allotment dated 3rd March 1999 was available for allocation

Holding

The disputed portion was no longer available for alienation, having already been allocated to the Plaintiffs in 1994 and developed; the impugned letter of allotment was a nullity incapable of vesting rights.

Reasoning

The Plaintiffs were allocated the plots in 1994, took possession and developed permanent storey buildings. The Director of Physical Planning had confirmed third-party occupation before the PDP was prepared, yet the Commissioner insisted on preparing it. Once land is allocated and the allottee meets conditions, it is unavailable for re-allotment unless the prior allotment is cancelled. The 2nd Defendant knew of the third-party developments.

p. 24
04

Validity of the 2nd Defendant's certificate of title over L.R No. 24901

Holding

The certificate of title was irregularly and illegally procured through re-survey and amalgamation carried out in collusion with the Commissioner of Lands, calculated to defraud the Plaintiffs.

Reasoning

The 2nd Defendant knew of third-party rights over the extension portion yet procured re-survey amalgamating it with its original land. Applying Maina v Hiram Gathiha Maina, a registered proprietor whose root of title is challenged must prove legality of acquisition beyond the title instrument; the 2nd Defendant failed to justify validity of title over the portion outside L.R Nos. 217/1 and 217/2.

Legal principles established

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  • Once a portion of land has been allocated and alienated, it ceases to be available for further allocation or re-allocation unless the previous letter of allotment is cancelled, revoked or rescinded.
  • The Commissioner of Lands could not alienate trust land on behalf of a local authority without that authority's concurrence and consent.
  • A registered proprietor whose root of title is under challenge must go beyond the title instrument and prove the legality of the acquisition.
  • The party asserting compulsory acquisition bears the burden of proving it.

Court orders

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  1. 1.Declaration that the 1st Plaintiff is the legal and bona-fide owner of Plot number 20, the 2nd Plaintiff of plots numbers 31, 52 and the 3rd Plaintiff of plot number 47, all situate at Mathare North Light Industries, Nairobi.
  2. 2.Declaration that the intended eviction by the 2nd Defendant against the Plaintiffs in respect of plots numbers 20, 31, 52 & 47 is illegal, bad in law, void and the notice for such intended eviction is a nullity.
  3. 3.The Chief Land Registrar ordered and directed to cancel, revoke and/or nullify the title in respect of L.R No. 24901, which encompasses the original L.R No's 217/1 and 217/2, together with the portion of land which fell outside the named parcels.
  4. 4.The Director of Physical Planning and the Director of Survey directed to undertake the re-planning and re-survey of L.R No. 24901 with a view to excising the disputed portion comprising the Plaintiffs' suit plots.
  5. 5.Upon re-planning and re-survey, the Chief Land Registrar to issue the requisite certificate of title to the 2nd Defendant relating only to the existing NYS Engineering College portion.
  6. 6.The Chief Land Registrar, in liaison with the 1st Defendant and the National Land Commission, to facilitate registration of the suit plots to the Plaintiffs and issue them with certificates of title/lease.
  7. 7.The Plaintiffs to meet, pay and/or settle the requisite charges to facilitate the survey, subdivision and ultimate transfer and registration of the suit plots.
  8. 8.Permanent injunction restraining the 2nd Defendant (National Youth Service) from evicting the Plaintiffs, taking possession, demolishing developments, interfering with or dealing with plots numbers 20, 31, 52 and 47, Mathare North Light Industries.
  9. 9.Costs of the suit awarded to the Plaintiffs, to be agreed upon or taxed by the Deputy Registrar.
  10. 10.The purported counterclaim on behalf of the 2nd Defendant dismissed.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 189
  • Evidence ActSections 108 and 109
  • Trust Lands Act (now repealed)
  • Land Acquisition Act (now repealed)

Cases cited (17)

  • Ethics and Anti-Corruption Commission versus Joseph Oroko Ong'era & Another
    (2020)eKLR
  • Commissioner of Lands & Another versus Coastal Aquaculture Ltd
    (1997)eKLR
  • Adan Abdirahani Hassan & 2 Others v Registrar of Titles, Ministry of Lands & 2 Others
    (2013)eKLR
  • Ethics and Anti-Corruption Commission v Lima Ltd & 2 Others
    (2019)eKLR
  • Harrison Mwangi Nyota versus Naivasha Municipal Council & 20 Others
    (2019)eKLR

    Alienation of trust land by the Commissioner of Lands requires the concurrence/consent of the relevant local authority.

  • Attorney General versus Zinj Ltd
    Petition no. 1 of 2020; (2021) KESC 23 (KLR)

    Processes to be complied with prior to compulsory acquisition.

  • Niaz Mohamed versus The Commissioner of Lands & 4 Others
    (1996)eKLR
  • Kenya National Highways Authority versus Salien Masud Mughal & 5 Others
    (2017)eKLR
  • Republic v Registrar of Lands in Kilifi Ex-parte Daniel Ricci
    Malindi HC JR No. 6 of 2013 (2013)eKLR
  • Joseph Kamau Muhoro versus The Attorney General
    (2021)eKLR
  • Dr, Syedna Muhamed Burhanudin Sahersuseb & 2 Others v Benja Properties and 2 Others
    (2007)eKLR
  • Benja Properties Ltd versus S S Syedna Mohamed Burhanudin Saeb & Others
    (2007)eKLR

    Land lawfully allocated ceases to be available for allocation to others.

  • Benja Properties Limited versus Syedna Mohammed Burhannudin Sahed & 4 others
    [2015] eKLR

    An interest in land cannot be allotted, alienated or transferred where the specific parcel does not exist; allotment attaches in rem to a specific parcel.

  • Raila Amolo Odinga & Another versus IEBC & Others
    (2017)eKLR

    Burden of proof and the shifting evidential burden in trials.

  • Dr, Samson Gwer & Others versus Kenya Medical Research Institute
    (2020)eKLR

    Sections 108 and 109 of the Evidence Act on burden of proof.

  • Rukaya Ali Mohamed –vs– David Gikonyo Nambachia & another
    Kisumu HCCA.9/2004

    Once an allotment letter is issued and conditions met, the land is no longer available for allotment.

  • Maina versus Hiram Gathiha Maina
    [2013] eKLR

    A registered proprietor whose root of title is challenged must prove legality of acquisition beyond the title instrument.

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution over disputes relating to land

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Malonza & 2 others v Nairobi County, (formerly Nairobi City Council) & 2 others", Case Analysis (2023). Environment & Land Case 624 of 2013 & 277 of 2014 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16630/eng@2023-03-23

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