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ELCPartially AllowedEnvironment and Land Case 55 & 179 of 2020 (Consolidated)· [2023] KEELC 16641 (KLR)

Technology Investments Limited & 3 others v Patel & 2 others

Environment and Land Court of Kenya
29 March 2023
11,847 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~47 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled a Kshs 100 million Mombasa plot's title because it sat on a public road reserve, even though the owner bought it innocently.

What this practically means

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Executive summary

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Two consolidated Mombasa ELC suits concerned land parcel MN/I/9596 in Nyali, registered in the name of Technology Investments Limited, which purchased it for Kshs 100 million in 2017. Technology Investments sued Asu Khanji Patel and the Land Registrar for trespass and injunction after the 1st defendant's works on the land; the 1st defendant counterclaimed that the title was illegally carved from a road reserve. In ELC 179 of 2020, SOS Children's Village Kenya, the Temple trustees and V. Naran Mulji Properties sought a declaration that a 20-metre road under PDP No CT/12/25/85/2 of 1985 was a public road and injunctions against its blockage. Justice Munyao Sila traced the title's history and found the original 1995 allocation breached Sections 3(a), 12 and 13 of the Government Lands Act: no presidential approval, no gazettement or auction, and no power in the Commissioner, Permanent Secretary or Minister to allocate. The plot was shown as a road in the 1985 PDP and subsequent deed plans, and under the Public Roads and Roads of Access Act (Cap 399) a public road could only be decommissioned by Ministerial gazette notice, which never occurred. Relying on Section 26(1)(b) of the Land Registration Act and the Shalien Masood Mughal and Elijah Makeri Nyang'wara authorities, the court held that a title acquired illegally is impeachable even against an innocent purchaser. The court nullified and cancelled title CR 27815, directed the Land Registrar to register the cancellation and amend any RIM, dismissed Technology Investments' suit with costs, dismissed the Kshs 12.2 million damages counterclaim for lack of proof but granted cancellation in the counterclaim, and granted the ELC 179 plaintiffs mandatory and permanent injunctions with costs.

Key legal issues

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01

Validity of the allocation under the Government Lands Act

Holding

The allocation was illegal and null and void because the President alone could allocate unalienated Government land, no presidential approval existed, and the land was never advertised for sale by auction as required by Sections 12 and 13 GLA

Reasoning

Under Section 3(a) GLA only the President could make grants of unalienated Government land, with limited delegation to the Commissioner of Lands for specified categories. The suit property fell in none of the delegated categories. There was no evidence of presidential approval, gazettement or auction. The Commissioner, Permanent Secretary and Minister therefore acted without power, rendering the purported allocation illegal and void.

p. 12
02

Whether the suit property was a public road reserve incapable of alienation

Holding

The plot was part of a public road delineated in PDP No CT/12/25/85/2 of 1985 and subsequent survey plans; it could not be alienated without the Minister's gazetted order under Cap 399

Reasoning

The court found overwhelming evidence from PDPs, deed plans and survey plans that the plot was a road. Under Sections 8 and 14 of the Public Roads and Roads of Access Act, alteration or cancellation of a public road requires a Ministerial order published in the Gazette. No such notice existed, so the land remained a road and was not available for allocation, whatever surveys or approvals were later done.

p. 14
03

Protection of an innocent purchaser for value under Section 26 of the Land Registration Act

Holding

Section 26(1)(b) removes protection from even an innocent title holder where the title was acquired illegally, unprocedurally or through a corrupt scheme; the plaintiff's title was therefore cancellable

Reasoning

Following the Shalien Masood Mughal decision and the court's own earlier ruling in Elijah Makeri Nyang'wara, the court held that the title holder need not be party to the vitiating factors. A tainted title carries its stain through subsequent sales and charges and remains liable to nullification. The plaintiff's title, being carved illegally from a road, could not be sanitized by downstream transfers.

p. 17
04

Locus standi of private parties to challenge a title over a public road

Holding

Any member of the public may sue to protect public property such as a public road without permission from any public body

Reasoning

The plaintiff argued the defendants lacked locus standi as they were not public authorities. The court rejected this, holding that a public road is dedicated to public use and any member of the public may assert and protect public goods; to hold otherwise would be against public interest. The absence of testimony from SOS was immaterial since other parties' evidence sufficed.

p. 15

Legal principles established

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  • A title created illegally, unprocedurally or through a corrupt scheme remains impeachable regardless of the innocence of the current holder or how many times it has changed hands
  • Land comprising a public road reserve cannot be alienated to a private person without the decommissioning process under the Public Roads and Roads of Access Act (Cap 399)
  • Any member of the public has locus standi to move court to cancel a title over a public road

Court orders

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  1. 1.Declaration that title CR No 27815 for land parcel MN/I/9596 is located on a road reserve and is an illegal title, which is nullified and cancelled
  2. 2.Direction to the Land Registrar, Mombasa, to make an entry in the register that the title is cancelled and no further transactions to take place based on the said title
  3. 3.Order that if there is a Registry Index Map containing the suit property, the RIM be amended to remove the suit land
  4. 4.Dismissal of the plaintiff's suit (ELC 55 of 2020) with costs
  5. 5.Dismissal of the 1st defendant's counterclaim in so far as it seeks the monetary award of Kshs 12,200,000
  6. 6.Grant of the counterclaim in so far as it seeks cancellation of the plaintiff's title, with costs of the counterclaim to the 1st defendant
  7. 7.Grant of mandatory injunction compelling Technology Investments Limited to remove whatever it has placed blocking the road within 14 days, failing which the plaintiffs in ELC 179 of 2020 may remove the items and pass the costs to Technology Investments Limited
  8. 8.Permanent injunction restraining Technology Investments Limited from blocking the 20 metre public access road
  9. 9.Costs of ELC 179 of 2020 awarded to the plaintiffs
  10. 10.No order as to costs in favour of or against the 2nd defendant

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(6)
  • Government Lands Act (Cap 280)Sections 3(a), 12, 13
  • Public Roads and Roads of Access Act (Cap 399)Sections 8, 14
  • Land Registration ActSection 26(1)

Cases cited (4)

  • Chemey Investments v Attorney General & 2 others
    Nairobi Civil Appeal No 349 of 2012 (2018) eKLR

    Land set aside for a specific public purpose (hospital) is not capable of alienation

  • Elizabeth Wambui Githinji & 29 others v Kenya Urban Roads Authority & 4 others
    Civil Appeal No 156 of 2013 (2019) eKLR

    Majority held appellants were innocent purchasers for value whose titles on a road reserve deserved protection; cited by plaintiff

  • Kenya National Highway Authority v Shalien Masood Mughal & 5 others
    Civil Appeal No 327 of 2014 (2017) eKLR

    Title falling within a road reserve cannot be protected regardless of innocence; road reserve is an overriding interest

  • Elijah Makeri Nyang'wara v Stephen Mungai Njoroge & another
    Eldoret ELC No 609B of 2012 (2013) eKLR

    Section 26(1)(b) impeaches even innocent title holders where title was acquired illegally, unprocedurally or corruptly

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

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, "Technology Investments Limited & 3 others v Patel & 2 others", Case Analysis (2023). Environment and Land Case 55 & 179 of 2020 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16641/eng@2023-03-29

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