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ELCPartially AllowedEnvironment and Land Case Civil Suit 23 of 2018· [2023] KEELC 21601 (KLR)

Sunshine Villas Limited v County Government of Kisumu & another; Ethics and Anti Corruption Commission (Interested Party)

Environment and Land Court
16 November 2023
17,469 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~70 min to read original · ~4 min brief

The bottom line

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A title certificate did not save a developer whose land was originally public open space, because the first allocation was illegal from the start.

What this practically means

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Executive summary

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Sunshine Villas Limited, the registered leaseholder of Kisumu/Municipality/Block 13/302, sued the County Government of Kisumu and its City Manager after an enforcement notice, revocation of development approvals and a demolition of parts of its apartment development in April 2018, claiming Kshs. 142,055,447/- in special damages plus injunctive and declaratory relief. The Ethics and Anti-Corruption Commission, joined as interested party, counterclaimed that the land was reserved as a public open space under PDP No. 741 of 1987 and was never lawfully alienable, seeking nullification of the titles and rectification of the register. The court traced the history of the parcel: the 1969 Kisumu Short Term Development Plan and the 1987 PDP reserved the land for public purposes/open space; no PDP, letter of allotment or lease accompanied the 1993 creation of the plot and its 1996 allocation to Jayantilal Pragji Sedani. Applying the Supreme Court's decision in Dina Management Limited, the court held that land reserved for a public purpose is not unalienated government land, that the first allocation was illegal and a nullity, and that 'nullity can only beget nullity' - the Plaintiff, despite claiming to be a bona fide purchaser, acquired no valid title, having ignored obvious red flags including KIWASCO's water pipes traversing the land. The development approvals were themselves null and void. However, the Plaintiff failed to prove that the Defendants carried out the demolition, so the claim for special damages failed. The Plaintiff's suit was dismissed; the counterclaim succeeded except for general damages and reliefs against the non-joined Bank of Baroda. The register was rectified, the land restored to the Government in trust for Kisumu residents, and costs awarded to the Interested Party, with the Defendants denied costs for issuing approvals without due circumspection.

Key legal issues

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01

Validity of the Plaintiff's title

Holding

The Plaintiff holds no valid title; the first allocation of the open space to Jayantilal Pragji Sedani was illegal and the nullity passed down to the Plaintiff

Reasoning

The 1969 Short Term Development Plan and PDP No. 741 of 1987 reserved the land as open space for public purposes. No PDP, letter of allotment or lease was produced for the creation of the plot in 1993. Land reserved for public purpose was not unalienated government land available for allocation. Following Dina Management, the illegal first allocation conferred no title that could pass to the Plaintiff, whose own due diligence failures were evident from the visible KIWASCO pipes.

p. 27
02

Lawfulness of the Plaintiff's development

Holding

The development was illegal despite approvals from the 1st Defendant, NCA and NEMA; the approvals were null and void and the revocation thereof superfluous

Reasoning

The apartments were not in furtherance of the public purpose for which the land was reserved. Regulatory bodies had no power to approve private development on illegally acquired public land, so the approvals could not validate the development. The Defendant's revocation attempts were legally unnecessary since there was nothing valid to revoke.

p. 27
03

Whether the Defendants carried out the demolition

Holding

The Plaintiff failed to prove that the Defendants carried out the demolition and theft

Reasoning

The only direct evidence was PW1's witness statement, which did not state whether he was present at the demolition or how he knew the demolishers were the Defendants' agents or employees. Attributing the demolition to the Defendants merely because they served the enforcement notice would rest on conjecture. The burden of proof was on the Plaintiff.

04

The Interested Party's counterclaim

Holding

The counterclaim succeeded save for general damages and reliefs against the non-joined Bank of Baroda

Reasoning

The Interested Party proved that the land was a public open space not available for allocation, that the first owner acquired no valid title, and that both the first owner and the Plaintiff held null and void titles. Rectification of the register and restoration to the Government in trust for residents were ordered. General damages for fraud were not proved and the bank, holding an apparently existing charge, was not a party.

Legal principles established

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  • Land reserved for a public purpose (open space) is not unalienated government land and cannot be validly alienated by the Commissioner of Lands to a private person
  • A title flowing from an illegal first allocation is a nullity and cannot pass a valid interest to any subsequent purchaser, however innocent
  • Indefeasibility of title under section 26 of the Land Registration Act is subject to Article 40(6) of the Constitution and does not protect illegally or unprocedurally acquired titles
  • A bona fide purchaser must prove a valid and legal title, due diligence, and payment of valuable consideration
  • Regulatory bodies have no power to approve private development on illegally acquired public land; such approvals are null and void

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.A declaration that the issuance of a lease over Title No. Kisumu Municipality/Block 13/302, its registration and the issuance of a certificate of lease to the first owner, Jayantilal Pragji Sedani, was null and void ab initio and ineffectual to confer any right, interest or title upon him
  3. 3.A declaration that the transfer of lease by Jayantilal Pragji Sedani to the Plaintiff, its registration and the issuance of a certificate of lease to the Plaintiff was null and void and ineffectual to confer a good title upon the Plaintiff
  4. 4.A declaration that Title No. Kisumu Municipality/Block 13/302 is land set aside as an open space and should be under the custody of the 1st Defendant, County Government of Kisumu
  5. 5.Rectification of the register by cancellation of the registration of the property in the names of Jayantilal Pragji Sedani and the Plaintiff and the certificates of leases issued to them
  6. 6.Ownership of the title restored to the Government of Kenya to hold in trust for the residents of Kisumu for the public purpose for which the land was reserved
  7. 7.A declaration that since the Plaintiff had no valid proprietary interest, it could not create any lawful charge over the property to secure a debt
  8. 8.A permanent injunction restraining the Plaintiff, its agents, servants or assigns from leasing, transferring, charging, entering upon, developing or in any manner dealing with Title No. Kisumu Municipality/Block 13/302
  9. 9.The Interested Party to have the costs of the suit and the counter-claim, to be paid by the Plaintiff
  10. 10.The Defendants to bear their own costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 62(1)(b)
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Environment and Land Court ActSection 13
  • Government Lands Act, Chapter 280 (repealed)Sections 2, 3, 9, 10
  • Land Planning Act, Chapter 303 (repealed)General
  • Development and Use of Land (Planning) Regulations, 1961Regulation 11(3)
  • Physical Planning Act, Chapter 286 (repealed)Sections 29, 38
  • Physical Planning (Enforcement Notices) Regulations, 1998Form P.P.A.7
  • Physical and Land Use Planning Act, 2019Sections 72, 93
  • Physical and Land Use Planning (General Development Permission and Control) Regulations, 2021Regulations 6, 12(4), 12(5)
  • Land Registration Act, 2012Sections 24, 25, 26, 28
  • Land Act, 2012Sections 138(3), 143(2), (3) and (4)
  • Registered Land Act, Chapter 300 (repealed)General
  • Registration of Titles Act, Cap 281 (repealed)Section 23
  • Fair Administrative Actions ActSection 4
  • Open Spaces Act 1906 (United Kingdom)Section 20

Cases cited (32)

  • Ruth Wamuchi Kamau v. Monica Mirae Kamau
    [1984] eKLR

    Meaning, creation and effect of wayleaves

  • Samuel Kariuki Nyagito v. Johaan Distelberger
    [2017] eKLR

    Claim for damages arising from demolition

  • Onyango Oloo v. Attorney General
    [1989] EA 456

    Breach of natural justice / fair administrative action

  • Ahmed Mohammed Noor v. Abdi Aziz Osman
    [2019] eKLR

    Standard of proof of fraud

  • Katende v. Haridar & Company Limited
    [2008] 2 EA 173

    Definition of a bona fide purchaser for value

  • Republic v. Land Registrar, Trans-Nzoia & another Ex parte Mary Odhiambo & another
    [2019] eKLR

    Burden on plaintiff to show how public land was allocated

  • Town Council of Awendo v. Nelson O Onyango & 13 others
    [2019] eKLR

    Burden to show how land designated for public use was allocated

  • Funzi Island Development Ltd & 2 Others v. County Government of Kwale & 2 Others
    [2014] eKLR

    Indefeasible title only where allocation was legal, proper and regular

  • Kassim Ahmed Omar & Another v. Awadh Ahmed Abel & Others
    Malindi ELC No. 18 of 2015

    A certificate of title is an end product of a process; non-compliant process permits cancellation

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

    Failure to show procedure for acquisition of public land

  • Nyamogo & Nyamogo Advocates v. Barclays Bank of Kenya Ltd.
    [2015] eKLR

    Special damages must be specifically pleaded and proved

  • Nicholas Angwenyi Siro t/a Riverside Continental Resort v. Finlay Kirui & Anor
    [2019] eKLR

    Proof of liquidated/special damages claims

  • Jamal Mohamed Bandira v. Owners of Motor Vessel Naisibu
    [2020] eKLR

    Special damages claim not proved where assessment based on unproved figures

  • Great Lakes Transport Co. Ltd (U) Ltd v. KRA
    [2019] eKLR

    Proof of special damages

  • The Queen on the Application of Peter Day and Shropshire Council and Shrewsbury Town Council and CSE Development (Shropshire) Ltd
    Case No. C1/2020/0136

    Definition of open space under the English Open Spaces Act 1906

  • R (on application of Day) (Appellant) v. Shropshire Council (Respondent)
    [2023] UKSC 8

    Public open spaces vested for public purpose; buildings for unrelated purposes unlawful

  • Attorney General v. Sunderland Corpn
    (1876) 2 Ch D 634

    Land vested in a corporation for public recreation cannot be used for other purposes

  • Dina Management Limited v. County Government of Mombasa & 5 Others
    Petition 8 (E010) of 2021 [2023] KESC 30 (KLR)

    Allocation of open space without approved PDP unlawful; title from illegal allocation passes no valid interest; due diligence requirements

  • Kenya Anti-Corruption Commission v. Wilson Gacanja & 2 others
    Milimani ELC No. 275 of 2009

    Due diligence red flags when purchasing land near public institutions

  • Chemey Investments Limited v. AG and 2 others
    [2018] eKLR

    An innocent purchaser would inquire before buying land in obvious public use

  • Arthi Highway Developers Limited v. West End Butchery Limited & 6 others
    [2013] eKLR

    Only a foolhardy or careless investor buys such land with alacrity

  • Nelson Kazungu Chai and 9 others v. Pwani University
    [2014] eKLR

    Land reserved for public institutions is not unalienated government land

  • African Line Transport Co. Ltd. v. the AG
    Mombasa HCCC No. 276 of 2003

    Land reserved for public purpose not available for alienation

  • H.H. DR. Syedna Mohammed Burhennuddin Saheb & Others v. Benja Properties Ltd
    Nairobi HCCC No. 73 of 2000

    Land reserved for public purpose not available for alienation

  • James Joram Nyaga & another v. The AG and Others
    Nairobi High Court Misc. Civil Application No. 1732 of 2004

    Commissioner of Lands cannot alienate land already set aside for public purpose

  • Kenya Guards Allied Workers Union v. Security Guards Services & 38 Others
    Nairobi HC Misc 1159 of 2003

    Public trust doctrine; titles over grabbed public plots ought to be nullified

  • Henry Muthee Kathurima v. Commissioner of Lands & Another
    [2015] eKLR

    Indefeasibility of title is subject to Article 40(6) of the Constitution

  • Milankumar Shah & 2 others v. The City Council of Nairobi & another
    Nairobi High Court Civil Suit No. 1024 of 2005 (O.S)

    Indefeasibility applies only where title creation accorded with law and was not procured by fraud

  • Adan Abdirahani Hassan & 2 others v. Registrar of Titles & 2 others
    [2013] eKLR

    Alienation of land reserved for public purpose is null and void ab initio

  • Samuel Kamere v Lands Registrar, Kajiado
    Civil Appeal No. 28 of 2005 [2015] eKLR

    Elements a bona fide purchaser for value must prove

  • Godfrey Githinji Kamiri v Attorney General & 4 others
    [2019] eKLR

    Cited Chemey Investments and Arthi Highway on due diligence by purchasers of public land

  • Flemish Investments Ltd v Town Council of Mariakani
    CA No. 30 of 2015

    A bona fide purchaser exercising due diligence would inspect the property and note obvious features

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011

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, "Sunshine Villas Limited v County Government of Kisumu & another; Ethics and Anti Corruption Commission (Interested Party)", Case Analysis (2023). Environment and Land Case Civil Suit 23 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21601/eng@2023-11-16

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