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ELCPartially AllowedEnvironment & Land Case 497, 498 & 499 of 2001 (Consolidated)· [2023] KEELC 17848 (KLR)

Kenya Ports Authority v Essam Properties Limited & 5 others

Environment and Land Court of Kenya
30 May 2023
9,636 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~39 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled two Mombasa titles allocated to private companies, confirming the land belonged to Kenya Ports Authority, but dismissed KPA's claim over a third plot.

What this practically means

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Executive summary

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In three consolidated suits filed in 2001, Kenya Ports Authority sought to nullify titles to Plots Mombasa/Block XXVI/508, XXVI/928 and XLVII/112, alleging they were its properties as successor to the East African Harbours Corporation and were fraudulently allocated by the Commissioner of Lands to Essam Properties, Kilifi Gardens and Stonewave (later Nile) without notice. KPA relied on legal notices vesting assets in the General Manager and later in KPA, the Ndungu Commission Report, claimed possession, correspondence and payment of rates. The court found KPA produced no document of title and no inventory of assets handed over, so the legal notices could not establish ownership. Possession was not proved; PW-1's evidence was found hopeless. The Ndungu Report was held not conclusive proof of irregular allocation. However, KPA proved payment of rates for Plots 112 and 508, which the court held indicated the land had been alienated to KPA and could not lawfully be re-allocated to private individuals, corroborated by the Ndungu Report and KPA's protest letters. The allotments of Plots 112 and 508 were therefore irregular; the titles of Nile Limited and Essam Properties were cancelled, the register rectified in KPA's favour, and vacant possession ordered within 30 days failing forcible eviction. No rates were proved for Plot 928 and no possession shown, so suit No. 498 of 2001 was dismissed with costs. Nile Limited's counterclaim was dismissed with costs. Costs of suits 497 and 499 were awarded to KPA jointly and/or severally against the defendants.

Key legal issues

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01

Whether the legal notices proved that the suit properties vested in KPA

Holding

The legal notices do not identify the particular assets vested; without an inventory of land handed over, they cannot establish that the suit properties belonged to KPA.

Reasoning

The court traced the vesting regime from LN 440 of 1963 through the 1969 notices to LN 160 of 2001 under section 74(4) of the KPA Act. It found the notices show only that some assets were held by the General Manager and distributed between the Railways and Harbours Corporations, but no inventory of land was produced to link the suit properties to KPA.

p. 12
02

Whether KPA proved possession of the suit properties before allocation

Holding

KPA failed to prove possession; no occupancy records, housing inventory or staff witnesses were produced.

Reasoning

PW-1, an Estates Officer, had no records of occupancy, could not tell the plots apart and had not visited them. Letters claiming occupation were mere claims requiring proof. The court found the plaintiff failed to prove occupation of any of the suit properties prior to allotment to the companies.

p. 13
03

Whether payment of rates proved alienation of Plots 112 and 508 to KPA

Holding

Payment of rates for Plots 112 and 508, coupled with the Ndungu Commission Report, established that the plots had been alienated to KPA and could not be alienated to private individuals.

Reasoning

The court reasoned that rates could only be charged on alienated land with a parcel number, and the Municipal Council long accepted rates from KPA even after purported allocation to the companies. This, with the Ndungu Report findings, lent credence to KPA's claim for those two plots, though not for Plot 928 where no rates payment was shown.

p. 16
04

Whether the allotments to the private companies were legal

Holding

The allotments of Plots 112 and 508 were irregular because the land was already alienated to KPA for public use and KPA was not consulted; the resulting titles were liable to cancellation.

Reasoning

For Plot 112, the green card opened only in 1997 despite adjacent plots in the series being registered to the General Manager, and the plot having been surveyed, cast doubt on the claim it was unalienated Government land. KPA protested by letters. Having no good title, Stonewave could not pass title to Nile; similarly Essam's title to Plot 508 was irregular.

p. 16

Legal principles established

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  • The Ndungu Commission Report is not by itself conclusive proof of irregular allocation but may form part of the evidence supporting a party's case.
  • Depending on the special circumstances of each case, payment of rents and rates may be proof of ownership or at least part of the evidence of rights over land.
  • A party without good title cannot pass good title to a transferee.

Court orders

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  1. 1.Suit Mombasa ELC No. 498 of 2001 (Plot Mombasa/Block XXVI/928) dismissed with costs to the defendants
  2. 2.Title of Nile Limited to Mombasa/Block XLVII/112 cancelled and the register rectified so that Kenya Ports Authority is registered as proprietor
  3. 3.Title of Essam Properties Limited to Mombasa/Block XXVI/508 cancelled and the register rectified so that Mombasa/Block XXVI/508 is registered in the name of Kenya Ports Authority
  4. 4.Nile Limited and Essam Properties Limited ordered to give vacant possession within 30 days, failing which they be forcibly evicted
  5. 5.Nile Limited and Essam Properties Limited and/or their servants/agents permanently restrained from the two properties upon lapse of the 30 days
  6. 6.Counterclaim of Nile Limited dismissed with costs
  7. 7.Costs of Mombasa ELC No. 497 of 2001 and No. 499 of 2001 awarded to KPA jointly and/or severally against the defendants

Authorities

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Legislation

  • Kenya Ports Authority ActCap 391, section 74(4)
  • East African Harbours Corporation ActCap 19
  • Government Lands ActCap 280, section 136(2)
  • Kenya Railways Corporation ActCap 397
  • Constitution of Kenya2010 (succession of NLC to Commissioner of Lands)
  • The Kenya (Vesting of Land) Regulations, 1963LN 440 of 12 July 1963 / LN 245 of 1963
  • Legal Notice No. 19 of 13 May 1969EA Harbours Corporation Act, 1967
  • Legal Notice No. 20 of 13 May 1969Railway assets vesting
  • Legal Notice No. 21 of 9 June 1969Distribution of staff
  • Legal Notice No. 160 of 11 October 2001Vesting of EA Harbours Corporation property in KPA

Cases cited (1)

  • Abdi Mohamed Kahiya vs Fatuma Haji Kasim
    Garissa ELC No. 37 of 2017 (2019) eKLR

    Payment of rents and rates and letters are not legal documents conferring a right of ownership over property.

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title and registration of land

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, "Kenya Ports Authority v Essam Properties Limited & 5 others", Case Analysis (2023). Environment & Land Case 497, 498 & 499 of 2001 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17848/eng@2023-05-30

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