Bahra & another v Registrar & 3 others (Environment & Land Case 799 of 2014) [2024] KEELC 170 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled a Riverside Drive land sale void, ordering the vendor to refund KSh 37.3 million with interest, but refusing to transfer the land.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 2nd Defendant acquired a valid title to and in respect of the suit property and whether the 2nd Defendant had any rights capable of conveyance in favor of the Plaintiffs
- 2.Whether the prayer/claim for Specific Performance by the Plaintiffs is legally tenable or otherwise
- 3.Whether the 3rd Defendant issued any Professional undertaking in favor of the Plaintiffs and if so, whether same has been breached or otherwise
- 4.What reliefs, if any, ought to be granted
Key legal issues
#Validity of the 2nd Defendant's title derived from a letter of allotment over property allocated while the 4th Defendant's lease was sought to be extended
The 2nd Defendant acquired no valid title; the allotment was a nullity and conferred no rights capable of conveyance to the Plaintiffs
The court found no written application for allotment was made; the letter of allotment produced was incomplete and unsigned; payment of the stand premium was made months outside the 30-day condition so the offer had lapsed; the land was reserved/allocated to the 4th Defendant (a state corporation) which held a legitimate expectation of extension; and the statutory procedures for alienation were not followed, as confirmed by the Deputy Chief Land Registrar. The doctrine of ex nihilo nihil fit applies.
Whether specific performance was available to the Plaintiffs
Specific performance refused: the contract was void for want of title, the Plaintiffs had themselves terminated it, and the 2nd Defendant had surrendered its title
Having found the sale agreement void ab initio, no enforceable contract existed to found specific performance. The Plaintiffs acknowledged in their own pleading that the property was reserved for Kenya Meat Commission and that the agreement was null and void - approbating and reprobating. They had also voluntarily issued a termination notice which was never challenged, and the 2nd Defendant had surrendered its certificate of title on 14th September 2012.
Whether the 3rd Defendant (vendor's advocate) was liable to refund the purchase monies for breach of professional undertaking
Not liable: he was never the Plaintiffs' advocate, owed no professional duty to them, and issued no undertaking
PW1 conceded the 3rd Defendant was not his advocate and that no professional undertaking existed. The monies paid through the 3rd Defendant were released to the 2nd Defendant with the Plaintiffs' concurrence. Under privity of contract, the sale agreement bound only the Plaintiffs and the 2nd Defendant, so the 3rd Defendant could not be held liable thereunder.
Refund of monies paid by the Plaintiffs and the defendants' counterclaims
The 2nd Defendant ordered to refund Kes.37,318,063.20 with 14% interest from 30th May 2011; the 2nd Defendant's counterclaim dismissed; the 4th Defendant's counterclaim allowed
Although the sale agreement was void, the Plaintiffs had paid and the 2nd Defendant had acknowledged receipt of Kes.37,318,063.20; a party with no title to sell must restitute the consideration. The 2nd Defendant's counterclaim failed because it had no title and could not grant vacant possession. The 4th Defendant proved ownership, the 2nd Defendant's title having been surrendered, and its counterclaim for declarations and injunction was meritorious.
Legal principles established
#- An unperfected allotment letter whose conditions (acceptance within 30 days and payment of stand premium) have not been met confers no transferable title
- Once the terms of a letter of allotment lapse, the letter becomes incapable of being acted upon and payment made outside the stated timelines is ineffective
- An allotment issued over land that is not in existence or not available is a nullity
- A void act is a nullity and every proceeding founded on it is equally bad
- Specific performance requires a valid, enforceable contract and will be refused where the contract is invalid or where damages are adequate
- A party who has terminated a contract cannot then seek specific performance of it
- Privity of contract - a contract binds only the parties thereto
- Interest beyond the court rate must be justified by evidence of custom or practice
Court orders
#- 1.The Plaintiffs' claim for refund of Kes.37,318,063.20 only as against the 2nd Defendant be and is hereby allowed with costs
- 2.The Refund in terms of clause (i) hereof shall attract Interests at court rate of 14% w.e.f 30th May 2011
- 3.The Plaintiffs' claim as against the 3rd Defendant be and is hereby Dismissed with costs
- 4.The claim as against the 1st Defendant is similarly dismissed with costs
- 5.The 2nd Defendant's counterclaim be and is hereby dismissed with the costs to the Plaintiffs
- 6.The 4th Defendant's counterclaim be and is hereby allowed: a declaration that Grant No. I.R No. 26044 issued to the 2nd Defendant is fraudulent, unlawful and void
- 7.An order directing the 1st Defendant (Chief Land Registrar) to revoke, nullify and/or cancel Grant No. I.R No. 26044
- 8.The 1st Defendant (Chief Land Registrar) shall publish a gazette notice relating to the cancellation of Grant No. I.R No. 26044 in the Kenya Gazette within 60 days, at the expense of the 4th Defendant
- 9.A declaration that the 4th Defendant (Kenya Meat Commission) is the lawful and legitimate proprietor of L.R No. 4275/40, situate on Riverside Drive, Nairobi
- 10.An order of Permanent injunction restraining the 2nd Defendant from trespassing onto or otherwise interfering with the 4th Defendant's rights over L.R No. 4275/40
- 11.Costs of the 4th Defendant's counterclaim shall be borne by the 2nd Defendant
- 12.Any other Reliefs not expressly granted is hereby Declined
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction over land matters (plaint dated 18th June 2014, Re-amended Plaint dated 16th January 2017)
Relief refused
#Plaintiffs' declaration of title / specific performance of the Agreement for Sale dated 1st March 2011
The 2nd Defendant acquired no lawful title; the sale agreement was void ab initio; the Plaintiffs had themselves terminated the contract and acknowledged the 4th Defendant's ownership, amounting to approbate and reprobate
Plaintiffs' claim against the 3rd Defendant for refund of Kshs.37,308,063.20 and joint liability
The 3rd Defendant was the vendor's advocate, was not the Plaintiffs' advocate, owed them no professional duty and issued no professional undertaking
Interest at 20% per annum from 21st February 2011 against the 2nd Defendant
No evidence tendered to justify a rate beyond the court rates
2nd Defendant's counterclaim for Kshs.30,712,960.80 being the balance of the purchase price
The 2nd Defendant had no valid title to convey and was itself in breach of the sale agreement
Costs
Refund claim against the 2nd Defendant allowed with costs; Plaintiffs' claims against the 1st and 3rd Defendants dismissed with costs; 2nd Defendant's counterclaim dismissed with costs to the Plaintiffs; costs of the 4th Defendant's counterclaim borne by the 2nd Defendant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Plaintifi's claim for refund of Kes.37, 318, 063.20/= only as against the 2nd Defendant be and is hereby allowed with costs.
A declaration be and is hereby made that the 4th Defendant (Kenya Meat Commission) is the lawful and legitimate proprietor of L.R No. 4275/40, situate on riverside drive, within the City of Nairobi.
The Plaintifi's claim as against the 3rd Defendant be and is hereby Dismissed with costs.
the entire letter of allotment is rendered redundant and otiose and thus becomes incapable of being acted upon ex-post-facto.
You cannot put something on nothing and expect it to stay there. It will collapse.
the 2nd Defendant neither accrued nor acquired any lawful or legal rights to the suit property
the prayer for specific performance is not only premature and misconceived; but otherwise constitute an abuse of the Due process of the court.
the counterclaim by and on behalf of the 4th Defendant has been duly proved/ established to the requisite standard.
Issues in the judgment
#The refund amount appears inconsistently in the pleadings versus the judgment and orders (Kshs.37,308,063.20 in the plaint; Kshs.37,318,063 in evidence; Kshs.37,318,063.20 in the orders)
The date of issuance of the 2nd Defendant's Grant appears inconsistently as 12th October 2010 in the analysis and 1st April 2010 in the final orders
The Grant number is inconsistently cited (Grant No. 126044 by the 4th Defendant's counterclaim; Grant No. I.R No. 26044 in the final orders)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bahra & another v Registrar & 3 others (Environment & Land Case 799 of 2014) [2024] KEELC 170 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/170/eng@2024-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.