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ELCDismissedEnvironment & Land Case 925 of 2015· [2023] KEELC 17224 (KLR)

Laly Furnishing House Ltd v Kenya National Highways Authority & 2 others

Environment and Land Court
27 April 2023
4,882 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A company claiming Kshs. 822 million for land taken for the Southern Bypass lost because it could not prove how it originally acquired the title.

What this practically means

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Executive summary

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The Plaintiff, registered lessee of L.R. No. 209/18172 along Mombasa Road, sued the Kenya National Highways Authority, China Road and Bridge Corporation and the National Land Commission, alleging that in February 2014 the 1st and 2nd Defendants unlawfully entered its land and constructed a fourth roundabout of the Southern Bypass/Mombasa Road interchange without notice or compensation, and that the 3rd Defendant unlawfully gazetted a recommendation to revoke its title in 2017. It sought declarations, compensation of Kshs. 822,250,000, general, special and punitive damages, costs and interest. The Defendants contended the suit land formed part of L.R. No. 11308, compulsorily acquired in 1972 and reserved for the interchange in the 1985 Nairobi South Structure Plan, so the land was public land incapable of allocation, and the Plaintiff's title was fraudulently acquired. The court first held that DW1's evidence was admissible despite absence of written corporate authority, following Peter Onyango Onyiego and Wines & Spirits Kenya Ltd. On ownership, applying Munyu Maina, the burden shifted to the Plaintiff to prove its root of title; it produced no letter of allotment or cadastral map and did not explain how it acquired the original parcel. The court found the land was acquired by government in 1972 and reserved by the 1985 Plan, becoming public land unavailable for allocation. The Plaintiff having failed to prove its case on a balance of probabilities, the suit was dismissed with costs on 27th April 2023.

Key legal issues

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01

Admissibility of DW1's evidence without written corporate authority

Holding

Written authority under seal is not required for a witness to give evidence for a corporation; the court may presume capacity of a public official

Reasoning

The court adopted Maraga J's holding in Peter Onyango Onyiego that affidavits and evidence may be sworn by anyone possessed of the facts, and relied on the Court of Appeal decision in Wines & Spirits Kenya Ltd that a court may presume the capacity of a public official acting in a stated capacity. Written authorization is only mandatory for contractual issues.

p. 7
02

Whether the Plaintiff proved root of title to LR 209/18172

Holding

Plaintiff failed to prove root of title; it produced no letter of allotment or cadastral map showing lawful acquisition of Government land

Reasoning

Under Section 26(1) of the Land Registration Act a title is prima facie evidence of ownership but may be challenged for illegality. Where title is challenged, the burden shifts to the proprietor. The Plaintiff did not show how it acquired LR 209/12058, produced no letter of allotment, and the land had been compulsorily acquired in 1972 and reserved by the 1985 Structure Plan.

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Whether the suit land was available for allocation to the Plaintiff

Holding

The land was compulsorily acquired in 1972 and reserved for the Southern Bypass interchange in the 1985 Plan, becoming public land not available for allocation

Reasoning

Gazette notices 3632 and 3633 of 1st December 1972 acquired 29.496 acres including the suit land. The Nairobi South Structure Plan No. 42/28/85/9 of 5th June 1985 showed the suit land within the acquired and reserved land with truncations for the junction. Whether the fourth roundabout was a later design did not matter as the acquired land sufficed.

p. 9

Legal principles established

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  • Where a registered proprietor's root of title is under challenge, the proprietor must prove the legality of the acquisition beyond the title instrument
  • A witness need not produce written corporate authority under seal to give evidence on behalf of a corporation
  • Land acquired by government and reserved by plan becomes public land unavailable for allocation

Court orders

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  1. 1.The Plaintiff's suit is dismissed with costs.

Authorities

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Legislation

  • Constitution of Kenya 2010Article 40
  • Land Registration Act 2012Sections 24(a), 26(1)
  • Land Act 2012Section 112
  • Land Acquisition Act 1968 (repealed)Sections 6(2), 9(1)
  • Kenya Roads ActSection 3
  • Civil Procedure RulesOrder 9 Rule 2(c) (formerly Order 3 Rule 2)
  • Government Lands Act (repealed)

Cases cited (15)

  • Margaret Njeri Wachira vs Eliud Waweru Njenga
    [2018] eKLR
  • Propwa Company Limited vs Justus Nyamo Gatondo & Another
    [2020] eKLR
  • Vijav Morjaria vs Nansingh Madhusingh Darbar & Another
    [2000] eKLR
  • Central Kenya Ltd vs Trust Bank Ltd & 4 Others
    [1996] eKLR
  • R vs Devon County Council ex parte Baker
    [1995] 1 All ER
  • Isaiah Otiato & 6 Others vs County Government of Vihiga
    [2018] eKLR

    compensation for compulsory acquisition

  • Patrick Musimba vs National Land Commission & 4 Others
    [2016] eKLR

    compensation for compulsory acquisition

  • Madin Clearing & Forwarding Limited vs Bamburi Supermarket Limited
    [2022] eKLR

    written authority required to act for a company

  • Agnes Nyambura Munga t/a Unisex Aero Salon vs Convert Holdings Limited
    [2021] eKLR

    affidavits may be sworn by anyone possessed of the facts

  • Peter Onyango Onyiego vs Kenya Ports Authority
    (2004) eKLR

    evidence for a corporation need not be under seal

  • Wines & Spirits Kenya Limited & another vs George Mwachiru Mwango
    [2018] eKLR

    court may presume capacity of a public official acting in a capacity

  • Elijah Makeri Nyangw'ra vs Stephen Mungai Njuguna & Another
    (2013) eKLR

    title impugned if obtained illegally, unprocedurally or through corrupt scheme

  • Munyu Maina vs Hiram Gathiha Maina
    [2013] eKLR

    burden on registered proprietor to prove legality of acquisition when root of title challenged

  • Nelson Kazungu Chai & 9 Others vs Pwani University
    [2014] eKLR

    process of allocating government land under repealed Government Lands Act

  • Joseph N.K. Arap Ng'ok vs Moijo Ole Keiwua & 4 Others
    [1997] eKLR

    title arises only after letter of allotment, compliance and issuance of title document

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

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, "Laly Furnishing House Ltd v Kenya National Highways Authority & 2 others", Case Analysis (2023). Environment & Land Case 925 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17224/eng@2023-04-27

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