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ELCDismissedNot stated in judgment· [2024] KEELC 997 (KLR)

Crescent Properties Development Limited v National Land Commission & 3 others (Environment & Land Case 90 of 2019) [2024] KEELC 997 (KLR)

Environment and Land Court
27 February 2024
2,134 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff claimed to have purchased Mombasa/Block XXVI/408 from Neema Gardens Flats Limited in April 1996 for Kshs 15,000,000, becoming registered proprietor in May 1996 under a 99-year government grant originally issued to Neema Gardens on 15th October 1985 under the repealed Government Lands Act. It sought declarations that the plot was private property and that it was the lawful owner, damages for trespass, Kshs 5,000,000 for destruction of a perimeter wall during the 2019 repossession of Mama Ngina Waterfront Park, an injunction, and costs. The 1st defendant maintained the suit property was public land unavailable for alienation. The court examined sections 2, 3 and 7 of the repealed Government Lands Act and held that whether the land was reserved park land or unalienated government land, the Commissioner of Lands lacked authority to alienate it: only the President could alienate unalienated land, with delegation limited to religious, charitable, educational or sports purposes, none of which applied. No evidence showed presidential authorization. Citing James Joram Nyaga and Henry Muthee Kathurima, the court found the 1985 lease and the 1996 transfer null and void ab initio. Indefeasibility under section 26 of the Land Registration Act, per Torino Enterprises, does not protect unlawfully acquired property, being subject to Article 40(6) of the Constitution. The plaintiff failed to prove its case on a balance of probabilities, and the suit was dismissed with costs to the defendants.

Key legal issues

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01

Lawfulness of the alienation of the suit property under the repealed Government Lands Act

Holding

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

Reasoning

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.

p. 3
02

Whether the plaintiff's registered title is indefeasible

Holding

Indefeasibility under section 26 of the Land Registration Act does not protect unlawfully acquired property, being subject to Article 40(6) of the Constitution

Reasoning

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.

p. 4
03

Whether the plaintiff proved its case and entitlement to damages and an injunction

Holding

The plaintiff failed to prove its case on a balance of probabilities; the suit was dismissed with costs

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The plaintiff's suit is dismissed with costs to the defendants

Authorities

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Legislation

  • Government Lands Act (repealed)Sections 2, 3, 7, 9 and 12
  • Registered Land Act Cap 300 (repealed)Not specified
  • Registration of Titles Act Cap 281Not specified
  • Land Registration ActSection 26
  • Constitution of KenyaArticle 40(6)
  • Legal Notice No. 79 of 2005Not specified

Cases cited (5)

  • James Joram Nyaga & Another v The Hon. Attorney General & Another
    (2007) eKLR
  • Henry Muthee Kathurima v Commissioner of Lands & another
    (2015) eKLR
  • Attorney General v Torino Enterprises Limited
    (Civil Application 84 of 2012) (2022) KECA 78 (KLR) (4 February 2022)
  • Said Bin Seif v. Shariff Mohammed Shatry
    (1940) 19 (1) KLR 9
  • Denis Noel Mukhulo & Another v. Elizabeth Murungari & Another
    [2018] eKLR
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

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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, "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.