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ELCAllowedNot stated in the judgment as provided· [2024] KEELC 3874 (KLR)

Axel Engineering and Manufacturing v Kenya Airports Authority & 4 others (Environment & Land Case 440 of 2018) [2024] KEELC 3874 (KLR)

Environment and Land Court
16 May 2024
MOMOGENI
7,475 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled a land title carved out of JKIA property, ruling that even innocent buyers lose protection when a title was obtained illegally.

What this practically means

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Executive summary

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The plaintiff company sued and then withdrew its suit by notice allowed on 6/07/2021. The 1st defendant, Kenya Airports Authority, pursued its counter-claim seeking a declaration that the plaintiff's parcel LR 209/121421 (IR 71372) was illegally and irregularly hived off from LR 21919 (JKIA land), revocation of the plaintiff's title, a declaration that the parcel forms part of LR 21919, demolition of structures, and costs. KAA traced its root to the 1953 aerodrome allocations and the Kenya Airports Authority (Vesting) Order, 1994, and showed its 1996 grant measured 4674.60 hectares against a known extent of 5098 hectares. The plaintiff, which bought from advocate John Macharia in 2009, claimed bona fide purchaser status and relied on a purported Part Development Plan re-planning and on the NLC report which, at paragraph 37, found no illegality attributable to it. The court framed four issues, found the term 're-planning' unknown to Kenyan law, noted no notification of re-planning was ever given to KAA, and held the Commissioner of Lands had no power under section 3 of the Government Lands Act to alienate land already vested in KAA. Applying section 26(1)(b) of the Land Registration Act and the Katende bona fide purchaser test, the court held the plaintiff was not an innocent purchaser and that a title acquired illegally, unprocedurally or through a corrupt scheme is impeachable even in innocent hands. Judgment was entered for KAA on the counter-claim with all prayers granted and costs to the plaintiff (defendant in the counter-claim).

Key legal issues

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01

Whether the Commissioner of Lands could validly alienate land already vested in Kenya Airports Authority

Holding

The Commissioner had no such authority; the power to alienate unalienated Government land vests in the President with only limited delegations, none of which covered this alienation

Reasoning

The land had been identified as airport land in 1953 and vested in the 1st defendant by the Kenya Airports Authority (Vesting) Order, 1994. Section 3 of the Government Lands Act vests the power to alienate unalienated Government land in the President, with limited delegated exceptions (educational, charitable, sports and other purposes) none of which applied. Reliance was placed on James Joram Nyaga v Attorney General on sections 3 and 7 of the GLA. The subsequent alienation and title issuance were therefore irregular and illegal.

p. 9
02

Whether the plaintiff is a bona fide purchaser for value without notice

Holding

The plaintiff does not qualify; the root title was defective so no good title could pass, and the plaintiff conducted no due diligence

Reasoning

Applying the Katende v Haridar ingredients, the plaintiff failed: the vendor John Macharia was not called as a witness, no allotment letter or evidence of his root of title was produced, and the plaintiff did not produce the search or undertake due diligence. Since the Commissioner could not pass good title, the plaintiff could not acquire one. Section 26(1)(b) of the Land Registration Act, per Alice Chemutai Too, removes protection even from innocent holders where title was acquired illegally, unprocedurally or through a corrupt scheme.

p. 12
03

Whether there was fraud/irregularity in the allocation of the suit property

Holding

Yes - the plaintiff's title over land excised from the airport was fraudulently, irregularly and unprocedurally procured and cannot stand

Reasoning

The survey plan for the plaintiff's parcel predated the authenticated cadastral survey of the airport although the land was already vested in the Authority in 1994; no notification of any re-planning was given to the 1st defendant; the grant issued in 1996 measured 4674.60 hectares against the known 5098 hectares; and DW2 admitted mapping errors possibly causing overlap. The court found the plaintiff irregularly, fraudulently and unprocedurally registered and invoked section 80(1) of the Land Registration Act to order rectification/cancellation.

p. 13

Legal principles established

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  • A certificate of title is prima facie evidence of ownership but is impeachable where it was acquired illegally, unprocedurally or through a corrupt scheme, even where the title holder was innocent
  • The Commissioner of Lands had no authority to alienate land already vested in a public institution under the Government Lands Act; alienation of unalienated Government land is the preserve of the President
  • The process of acquisition of title, not merely the end result, is material where the acquisition process is doubted
  • There is a presumption against interference with vested property rights

Court orders

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  1. 1.A declaration that hiving off, excision and/or curving out of LR No 209/121421 (Grant Number IR No. 71372) from LR No. 21919 owned by the 1st defendant was done irregularly and/or illegally
  2. 2.An order for revocation and/or cancellation of the Title held by the plaintiff in respect of parcel of land known as LR No. 209/121421 (Grant Number IR No. 71372)
  3. 3.An order that the suit property, LR 209/121421 (Grant Number IR No. 71372), forms part of LR No. 21919 which belongs to the 1st defendant
  4. 4.An order for the removal and/or demolition of any development and/or structures on LR 209/121421 (Grant Number IR No. 71372)
  5. 5.Costs of the counter-claim to be borne by the plaintiff (defendant in the counter-claim)
Jurisdiction invoked
Original civil jurisdiction (Environment and Land Court) over the 1st defendant's counter-claim concerning land LR 209/121421 and LR 21919

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, "Axel Engineering and Manufacturing v Kenya Airports Authority & 4 others (Environment & Land Case 440 of 2018) [2024] KEELC 3874 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3874/eng@2024-05-16

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