Kenya Airports Authority v Chief Land Registrar & 3 others (Environment & Land Petition E005 of 2020) [2024] KEELC 575 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that land reserved for public use belongs to the public and cannot be allocated to private individuals.
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 suit property is public land belonging to the Petitioner and therefore unavailable for alienation or allotment to a private party
- 2.Whether the allotment letter and deed plan issued to the 4th Respondent were valid
- 3.Whether the Petitioner had locus standi and properly invoked the constitutional jurisdiction of the Court
Key legal issues
#Ownership and classification of the suit property
The suit property formed part of the Petitioner's land and is public land under Article 62(1)(b)
The Petitioner traced its interest to a 1994 Vesting Order transferring property of the State Department of Aerodromes, a Part Development Plan and Gazette Notice for staff housing. The 4th Respondent produced only a 1989 licence, an allotment letter from the Nairobi City Council and a deed plan, and did not demonstrate that the Council owned the land or that the Petitioner had surrendered it. The court therefore found the property was public land belonging to the Petitioner.
Validity of the allotment letter and deed plan
The allotment letter dated 15th June 2007 and the subsequent deed plan are void ab initio
Because the suit property was public land reserved for public purpose, it was not available for allocation. The 4th Respondent failed to show how the Nairobi City Council had authority to allot land proven to belong to the Petitioner, and no witness from the County Government testified to the authenticity of the allotment letter. Following the line of authority in Nelson Kazungu Chai, Lalitchandra Dugarshankar Padya and related cases, the allocation was a nullity.
Petitioner's standing and mode of suit
The Petitioner, a State corporation, could maintain the constitutional petition in protection of its property rights under Article 40
The 4th Respondent argued that the Petitioner, being a body corporate, could not sue in a constitutional petition and that Article 40 protects persons against the State. The court did not accept these objections, allowed the petition and granted the declarations, noting the Petitioner had relied on authorities including Anarita Karimi Njeru, Mumo Matemu and Godfrey Paul Okutoyi on the thresholds for constitutional petitions.
Legal principles established
#- Land lawfully held, used or occupied by a State organ is public land under Article 62(1)(b) and cannot be disposed of except in terms of an Act of Parliament
- Land reserved for public purposes cannot be allocated to individuals; an allotment of such land is null and void ab initio
Court orders
#- 1.A declaration that Land Reference Number 9042/940 measuring approximately 0.1902 hectares situated in Embakasi Area, Nairobi is public land and not available for alienation and/or allotment to the 4th Respondent or any other party
- 2.A declaration that the 1st Respondent's issuance of a title document to the 4th Respondent over the suit property was null and void ab initio and ineffectual to confer any right, interest or title upon the 4th Respondent
- 3.An order directed at the 4th Respondent to forthwith deliver the grant in respect of the suit property to the 1st Respondent for cancellation
- 4.A permanent injunction against the 4th Respondent, her agents, servants, employees and invitees from trespassing, constructing, selling, disposing of, charging, sub-dividing, dealing, alienating, occupying, managing, letting or otherwise intermeddling with the suit property
- 5.An order to the Land Registrar for cancellation of the allocation of the suit property in favour of the 4th Respondent and of the title documents issued to her, so as to restore the suit property to the Petitioner
- 6.The structures constructed on the suit property by the 4th Respondent to be removed within 90 days of the judgment
- 7.All costs incidental to the above to be borne by the 4th Respondent
- 8.The 4th Respondent to pay the costs of the Petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 13(1), (2), (3) and (7) of the Environment and Land Court Act; Articles 22(1), 23(1), 40, 62 and 67 of the Constitution; Rules 3, 4(1), 8 and 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Relief refused
#General damages for trespass to land and fraud
Not included among the orders granted in the disposition; the court did not award damages
Declaration that land set aside for public use is not available for alienation and/or allotment to private entities (in the general form sought in prayer (a))
The court granted instead the specific declaration relating to the suit property
Costs
All costs incidental to the declarations and orders to be borne by the 4th Respondent, and the 4th Respondent to pay the costs of the Petition
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.
In the circumstances, it is the finding of the court that the allotment letter dated 15th June 2007 and the subsequent deed plan that the 4th Respondent has relied are void ab initio.
Having established that the suit property is public land belonging to the Petitioner and having established that public land reserved for public purpose cannot be allotted to an individual, like in this case, I find that the suit property could not have been allotted to the 4th Respondent.
A declaration be and is hereby issued that Land Reference Number 9042/940 measuring approximately 0.1902 hectares situated in Embakasi Area, Nairobi (hereinafter the suit property) is public land and not available for alienation and/or allotment to the 4th Respondent or any other party.
The structures constructed on the suit property by the 4th Respondent be removed within 90 days of the judgement of the Court.
An order is hereby issued to the Land Registrar for cancellation of the allocation of the suit property in favour of the 4th Respondent and title documents issued to the 4th Respondent so as to restore the suit property to the Petitioner.
Issues in the judgment
#The judgment does not name the parties in a formal caption; the identities of the 2nd and 3rd Respondents are not expressly stated in the reproduced text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Airports Authority v Chief Land Registrar & 3 others (Environment & Land Petition E005 of 2020) [2024] KEELC 575 (KLR)", Case Analysis (2024). Petition dated 10th August 2020 (Environment and Land Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/575/eng@2024-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.