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Case Brief · caselaw.co.ke
ELCDismissedEnvironment & Land Case 146 of 2011· [2023] KEELC 20436 (KLR)

Board of Trustees of the National Social Security Fund v Attorney General of the Republic of Kenya

Environment and Land Court
28 September 2023
5,991 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed NSSF's Ksh.300 million Mlolongo land claim, ruling titles sitting on a public road reserve are worthless paper.

What this practically means

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Executive summary

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The plaintiff, established under the National Social Security Fund Act, sued the Attorney General claiming it purchased 13 parcels of land at Mlolongo for Ksh.300 million under an agreement dated 25.1.1995 and was their indefeasible owner. It sought declarations of ownership, indemnity against third-party claims, a conservatory order protecting its investment, alternative compensation at market value, damages and costs, alleging the Government's dual carriageway project between Embakasi and Athi River threatened parcels it claimed encroached on a road reserve acquired under Gazette Notices 1887 and 1888 of 1972. The defendant denied the claim, asserting the land was compulsorily acquired in 1972 for road construction, compensation was paid, and LR 17645 was illegally hived off the acquired road reserve, the parcel not existing in 1972. The plaintiff's sole witness conceded under cross-examination that it had sold all parcels save LR 17645/1, had no valuation report, no searches or survey plans, and that the Oilcom judicial review litigation over 17645/2 had been dismissed. The court framed five issues and held that none of the plaintiff's parcels were compulsorily acquired because the titles did not exist in 1972; that indefeasibility could not protect titles found in the middle of a road; that the plaintiff was not a bona fide purchaser, having bought the parcels six days before its vendor was itself registered; and that compensation and damages claims failed. The suit was dismissed with each party bearing its own costs, the court noting that any title on public land remains a mere paper title.

Key legal issues

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01

Whether the plaintiff's parcels were compulsorily acquired or threatened with acquisition

Holding

None of the plaintiff's properties were compulsorily acquired; the titles did not exist in 1972 when the Government acquired the land for road expansion

Reasoning

The Gazette Notices of 30.6.1972 acquiring land for the road did not mention the plaintiff's parcels. Parcel LR 17645 came into existence in 1992 or 1994, long after the 1972 acquisition. The sketch plan showed parcels 17645/1 and 2 in the middle of the road, corroborating the defence that the titles were hived off acquired road reserve land.

02

Whether the plaintiff is the indefeasible owner of the suit parcels

Holding

No; indefeasibility cannot protect titles found in the middle of a road, and the plaintiff had sold all parcels save LR 17645

Reasoning

The court held it could not vouch for the legality of titles located in the middle of a road. Further, at trial it emerged the plaintiff had sold all parcels except LR 17645, which itself was subdivided with 17645/2 sold to Oilcom under an agreement relating to the parent parcel, leaving the plaintiff with no land.

p. 9
03

Whether the plaintiff was a bona fide purchaser for value without notice

Holding

No; the purchase lacked due diligence and the chronology of the transaction was irregular

Reasoning

The plaintiff bought all 13 parcels from Kingorani on 25.1.1995, six days before Kingorani itself was registered as owner on 31.1.1995, and registration to the plaintiff followed a day after the sale agreement. No searches or survey plans were produced, and no inspection of the properties was shown, defeating the innocent purchaser claim.

p. 10
04

Whether the plaintiff is entitled to compensation and damages

Holding

No; compensation and damages claims failed because the titles could not be upheld

Reasoning

Since the court could not uphold titles whose roots were unknown, and Article 40(6) excludes unlawfully acquired property from protection, the claims for compensation at market value and damages were unmerited. The defendant also filed no counterclaim, so the court made no order cancelling titles but noted titles on public land are mere paper titles.

p. 11

Legal principles established

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  • Property rights under Article 40 do not extend to property unlawfully acquired
  • A road reserve is an overriding interest that need not be noted in the land register and cannot be alienated for private development
  • An innocent purchaser must inspect the suit premises as part of due diligence
  • Titles whose roots are unknown and which sit on public land cannot be upheld

Court orders

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  1. 1.The suit is dismissed
  2. 2.Each party shall bear their own costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(1), 40(3), 40(6)
  • National Social Security Fund Actestablishment of the plaintiff
  • Registration of Titles Act (Cap 281)grant of LR 17645
  • Land Registration ActSections 25, 26, 80, 81
  • Land ActPart VIII (Sections 107 to 133), Section 110(1)
  • Land Acquisition Act (repealed)Section 6; 1968 acquisition provisions
  • Retired ConstitutionSection 75

Cases cited (20)

  • Synergy Industrial Credit Limited v Oxyplus International Limited & 2 others
    [2021] eKLR

    Judgment on admission / estoppel from denying title issued by the state

  • Republic v The Registrar of Titles Mombasa & 2 Others Exparte Emfil Limited
    [2012] eKLR

    A title can only be cancelled by a court order

  • Republic v Kisumu District Lands Officer & another
    [2010] eKLR

    Cancellation of title requires court order

  • Embakasi Properties Limited & another v Commissioner of Lands & another
    [2019] eKLR

    Protection of registered owners as bona fide purchasers

  • Elizabeth Wambui Githinji & 29 Others v Kenya Urban Roads Authority & 4 Others
    (2019) eKLR

    Bona fide purchaser for value protection

  • David Peterson Kiengo & 2 others v Kariuki Thuo
    [2012] eKLR

    Bona fide purchaser doctrine

  • Shimoni Resort v Registrar of Titles & 5 others
    [2016] eKLR

    Bona fide purchaser doctrine

  • Weston Gitonga & 10 others v Peter Rugu Gikanga & another
    [2017] eKLR

    Bona fide purchaser doctrine

  • Kinyanjui Kamau v George Kamau
    [2015] eKLR

    Fraud must be specifically pleaded and proved

  • Vijay Morjaria v Nansingh Madhusingh Darbar & another
    [2000] eKLR

    Fraud must be specifically pleaded and proved

  • Central Bank of Kenya Limited v Trust Bank Limited & 4 others
    [1996] eKLR

    Fraud must be specifically pleaded and proved

  • Town Council of Awendo v Nelson O Onyango & 13 others; Abdul Malik Mohamed & 178 others (Interested Parties)
    [2019] eKLR

    Eminent domain doctrine under Article 40 and the Land Act

  • Attorney General v Zinj Limited (Petition 1 of 2020)
    [2021] KESC 23 (KLR) (Civ) (3 December 2021)

    Constitution does not condone arbitrary acquisition of land by the state

  • Mutuma Angaine v M'marete M'muronga
    [2011] eKLR

    Compulsory acquisition must strictly follow due process

  • Kenya National Highways Authority v Shalien Masood Mughal & 5 others
    [2017] eKLR

    Road reserve is an overriding interest not requiring notation in the register

  • Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022)
    [2023] KESC 79 (KLR) (22 September 2022)

    Innocent purchaser must inspect the suit premises

  • Republic v Minister For Transport & Communication & 5 Others Ex Parte Waa Ship Garbage Collector & 15 Others
    [2006] 1 KLR (E&L) 563

    Public land held in trust; alienation defeating public interest unconstitutional

  • Kenya Anti-Corruption Commission v Online Enterprises Limited & 4 others
    [2019] eKLR

    Cited as the case quoting Maraga, J on public land held in trust

  • Chemey Investment Limited v Attorney General & 2 others
    [2018] eKLR

    Sanctity of title never intended to protect fraud or illegality

  • Oilcom Limited v Permanent Secretary Ministry of Roads and Public Works and the Hon Attorney General
    Civil Appeal 303 of 2006

    Interim stay of demolition of petrol station on LR 17645/2; case later dismissed

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes (Article 162(2)(b) Constitution); suit filed by plaint dated 5.4.2011

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, "Board of Trustees of the National Social Security Fund v Attorney General of the Republic of Kenya", Case Analysis (2023). Environment & Land Case 146 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20436/eng@2023-09-28

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