Malonza & 2 others v Nairobi County, (formerly Nairobi City Council) & 2 others
The bottom line
#The Environment and Land Court confirmed three Nairobi plot owners' titles and blocked the National Youth Service from evicting them.
What this practically means
#Executive summary
#Key legal issues
#Whether the entirety of L.R No. 24901 was compulsorily acquired for the 2nd Defendant
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.
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.
Whether the disputed portion belonged to the 1st Defendant and whether the 1st Defendant had capacity to allocate the suit plots
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.
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.
Whether the portion allocated to the 2nd Defendant by letter of allotment dated 3rd March 1999 was available for allocation
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.
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.
Validity of the 2nd Defendant's certificate of title over L.R No. 24901
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.
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
#- 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
#- 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.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.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.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.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.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.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.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.Costs of the suit awarded to the Plaintiffs, to be agreed upon or taxed by the Deputy Registrar.
- 10.The purported counterclaim on behalf of the 2nd Defendant dismissed.
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kyoa & others v Director for Land Adjudication & Settlement & another (Environment and Land Petition 6 of 2018) [2026] KEELC 1965 (KLR)[2026] KEELC 1965 (KLR)24 Feb 2026
- Ngendu & another v Kithaka & another (Environment and Land Appeal E004 of 2025) [2025] KEELC 8527 (KLR)[2025] KEELC 8527 (KLR)20 Nov 2025
- Millennium Gardens Management Limited v Metricon Home Nairobi Company Limited; Nairobi City County Government & 2 others (Interested Parties) (Environment & Land Petition E121 of 2023) [2024] KEELC 6040 (KLR)[2024] KEELC 6040 (KLR)19 Sept 2024
Cite this brief
#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.