Crescent Properties Development Limited v National Land Commission & 3 others (Environment & Land Case 90 of 2019) [2024] KEELC 997 (KLR)
The bottom line
#The Environment and Land Court in Mombasa dismissed a landowner's claim because the original government allocation of the plot was unlawful, voiding the title.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of the alienation of the suit property under the repealed Government Lands Act
The alienation to Neema Gardens Flats Limited was unlawful and unprocedural; the Commissioner of Lands had no power to alienate the property or confer title
The court held that whether the land was alienated or unalienated government land, the statutory scheme restricted alienation: reserved park land was not available for allocation, and unalienated land could only be alienated by the President or by the Commissioner under limited delegated purposes (religious, charitable, educational or sports). None was demonstrated, and there was no evidence of presidential authorization, rendering the grant a nullity.
Whether the plaintiff's registered title is indefeasible
Indefeasibility under section 26 of the Land Registration Act does not protect unlawfully acquired property, being subject to Article 40(6) of the Constitution
Relying on the Court of Appeal's decision in Attorney General v Torino Enterprises Limited, the court held that the conclusive nature of title is inapplicable where the title was unlawfully acquired. Since the plaintiff's root of title (the 1985 grant) was a nullity, the subsequent transfer to the plaintiff was equally void and conferred no protectable right.
Whether the plaintiff proved its case and entitlement to damages and an injunction
The plaintiff failed to prove its case on a balance of probabilities; the suit was dismissed with costs
Having found that the 1985 lease and the 1996 transfer were null and void ab initio and ineffectual to confer any right, interest or good title, the plaintiff had no enforceable interest in the suit property. The claims for declarations of ownership, damages for trespass, damages of Kshs 5,000,000 for destruction of the wall, and an injunction could not stand.
Legal principles established
#- Indefeasibility of title under section 26 of the Land Registration Act does not extend to property unlawfully acquired, being subject to Article 40(6) of the Constitution
- The Commissioner of Lands had no power to alienate unalienated government land; that power was the preserve of the President, save for limited delegated purposes (religious, charitable, educational or sports), and an alienation without authority is a nullity
Court orders
#- 1.The plaintiff's suit is dismissed with costs to the defendants
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act over a dispute concerning title to land (Mombasa/Block XXVI/408); specific provision not stated in judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Crescent Properties Development Limited v National Land Commission & 3 others (Environment & Land Case 90 of 2019) [2024] KEELC 997 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/997/eng@2024-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.