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ELCDismissedEnvironment and Land Court Civil Suit (original plaint dated 5th March 2007, amended 27th February 2009) - number not stated in judgment· [2024] KEELC 3948 (KLR)

Kamau & another t/a Nemka Commercial Agencies v Fletcher (Sued on behalf of the Sisters of Mercy) & 2 others; Patel & another (Interested Parties) (Environment & Land Case 237 of 2007) [2024] KEELC 3948 (KLR)

Environment and Land Court
25 April 2024
15,814 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~63 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a Kshs 30 million trespass suit because the land was originally a road reserve, making the buyers' title a legal nullity.

What this practically means

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Executive summary

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The Plaintiffs, trading as Nemka Commercial Agencies, sued three Defendants associated with St. Catherine's Primary School seeking a permanent injunction, demolition of structures, and general damages of Kshs. 30,000,000 for trespass on L.R No. 209/11881, South B, Nairobi, which they bought from NSSF for Kshs. 33,500,000 and subdivided into 51 plots. The Defendants denied trespass and contended the land was public utility land (formerly Tsavo Road reserve) irregularly alienated. Okong'o J framed seven issues. On capacity, the court found the Plaintiffs were never registered owners, acted as NSSF's agents to avoid stamp duty, and had no authority from third-party purchasers; a beneficial owner cannot sue where the registered owner (NSSF, in HCCC No. 819 of 2005) was able to sue, so the Plaintiffs lacked locus standi. On the root of title, the court found the property was created from a road reserve reserved for public use; its 1995 allocation to Hamco Kenya Ltd, its rapid resale to NSSF, and the subsequent subdivision were illegal, null and void, indefeasibility under section 26 of the Land Registration Act being subject to Article 40(6) of the Constitution. Applying Macfoy v United Africa Co., the void title passed nothing to NSSF or the Plaintiffs. On trespass, no cause of action was established and, in any event, no evidence linked the Defendants to trespass or destruction. The Interested Parties, purchasers of five subplots, lodged no claim and were granted no relief. The suit was dismissed with costs to the Defendants.

Key legal issues

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01

Plaintiffs' legal capacity/locus standi

Holding

Plaintiffs had no locus standi; they were not registered owners, acted as agents of NSSF, and no evidence showed third-party purchasers authorised the suit

Reasoning

The sale agreement was with Nelson Mwangi Kamau t/a Nemka Commercial Agencies with no proof David Mburu Gibson was a partner. The property was never registered in the Plaintiffs' names; they avoided stamp duty and acted as NSSF's agents, subdividing and selling plots transferred directly by NSSF. A beneficial owner cannot sue a third party where the legal owner is willing and able to sue, as NSSF had done in HCCC No. 819 of 2005.

p. 20
02

Whether the suit property was public land lawfully alienated

Holding

The suit property was created from Tsavo Road, a road reserve reserved for public use; its allocation to Hamco Kenya Ltd was illegal, null and void

Reasoning

The land was a road reserve until 1995 when allocated to Hamco, which on-sold it to NSSF within three months at a huge markup, evidencing irregularity. Under section 3(a) of the Government Lands Act only unalienated government land could be allocated. Alienated public-purpose land was outside the Commissioner's powers, so the grant to Hamco was void and passed no title to NSSF or the Plaintiffs.

p. 24
03

Whether the sale to NSSF and Plaintiffs was lawful and whether title passed

Holding

No valid title passed; the void Hamco title conveyed nothing, and the 2006 subdivision creating the 51 subplots was illegal, null and void

Reasoning

Hamco's title was void ab initio, so NSSF acquired nothing and could pass nothing to the Plaintiffs, who were not even registered. Applying Macfoy v United Africa Co., a void act needs no setting aside. Consequently NSSF and the Plaintiffs had no valid interest in the suit property or the subplots capable of transfer to third parties.

04

Trespass

Holding

No cause of action for trespass was established; the Plaintiffs lacked capacity, and on the merits no evidence linked the Defendants personally to trespass or destruction

Reasoning

Trespass requires proof of valid title and possession. The Plaintiffs' title was invalid and the property had been subdivided. Even on merits, the Defendants were employees/officials of charitable bodies supporting the school and the 3rd Defendant a PTA chairperson; there was no evidence any of them entered the land or committed the acts of destruction alleged.

p. 24

Legal principles established

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  • Land reserved for public use is alienated land and cannot be allocated by the Commissioner of Lands to a private party; any such alienation is null and void
  • Indefeasibility of title under section 26 of the Land Registration Act is subject to Article 40(6) of the Constitution; titles acquired illegally, unprocedurally or corruptly are not protected
  • A void act is a nullity which confers no title and need not be set aside by a court order
  • An agent of a disclosed principal with no registered or proprietary interest cannot maintain a suit for trespass; only the legal owner can

Court orders

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  1. 1.The Plaintiffs' suit is dismissed with costs to the Defendants

Authorities

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Legislation

  • Land Registration ActSection 26(1) and 26(2)
  • Constitution of Kenya, 2010Article 40(1)-(6); Article 27(4); Article 65
  • Government Lands Act (repealed), Chapter 280Sections 2 and 3(a)
  • Registration of Titles Act (repealed), Chapter 281Section 23
  • Evidence Act, Chapter 80Section 98
  • Basic Education Act, 2013Sections 27, 43(1)(a) and 55
  • Law of Contract Actnot specified
  • Civil Procedure Act, Chapter 21Section 27
  • Civil Procedure RulesOrder 4 Rule 6
  • Repealed Constitution of KenyaSection 75

Cases cited (21)

  • Katende v. Haridar & Company Ltd.
    [2008] 2 E.A 173
  • Samuel Kamere v. Land Registrar, Kajiado
    [2015] eKLR
  • Giella v. Cassman Brown
    [1973] E.A 358
  • Kenya Group Ranch v. Samuel Oruta & 9 others
    [2021] eKLR
  • Duncan Nderitu Ndegwa v. KPLC Limited & another
    [2013] eKLR
  • Philip Ayaya Aluchio v. Crispinus Ngayo
    [2014] eKLR
  • Nakuru Industries Limited v. S.S. Mehta & Sons
    [2016] eKLR
  • Willesden Investments Limited v. Kenya Hotel Properties Limited
    NBI HCC No. 367 of 2000
  • Dina Management Ltd. v. County Government of Mombasa & 5 Others
    [2023] eKLR
  • Wareham t/a AF Wareham & 2 others v. Post Office Savings Bank
    [2004] eKLR
  • Presbyterian Foundation v. General of the Salvation Army
    [2018] eKLR
  • Mayfair Holdings Ltd. v. Ahmed
    [1990] eKLR
  • Margaret Nyokabi Mbugua & 5 others v. Ngenda New Farmers Co. Ltd.
    [2019] eKLR
  • Lawrence P. Mukiri v. Attorney General & 4 others
    [2013] eKLR
  • Milankumar Shah & 2 others v The City Council of Nairobi & another
    Nairobi High Court Civil Suit No. 1024 of 2005 (O.S)
  • Henry Muthee Kathurima v. Commissioner of Lands & Another
    [2015] eKLR
  • Adan Abdirahani Hassan & 2 others v Registrar of Tiles & 2 others
    [2013] eKLR
  • James Joram Nyaga & Another v The Hon. Attorney General and two others
    Miscellaneous Civil Application No. 1732 of 2004
  • Joseph Hayim Hayim v. Citibank NA
    (1987) AC 730
  • Macfoy v United Africa Co. Ltd.
    [1961] 3 All E.R 1169
  • Board of Trustees of the National Social Security Fund v. Sisters of Mercy Kenyan Province & 2 Others
    Nairobi HCCC No. 819 of 2005
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim concerning title, trespass and injunction on land (L.R No. 209/11881); section 27 of the Civil Procedure Act invoked on costs

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, "Kamau & another t/a Nemka Commercial Agencies v Fletcher (Sued on behalf of the Sisters of Mercy) & 2 others; Patel & another (Interested Parties) (Environment & Land Case 237 of 2007) [2024] KEELC 3948 (KLR)", Case Analysis (2024). Environment and Land Court Civil Suit (original plaint dated 5th March 2007, amended 27th February 2009) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3948/eng@2024-04-25

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