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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 3971 (KLR)

Nakel Investments Limited v Ministry of Transport, Infrastructure, Housing and Urban Development & another (Environment and Land Case E016 of 2020) [2024] KEELC 3971 (KLR)

Environment and Land Court
30 April 2024
5,454 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court upheld a private buyer's title to former government houses because the State couldn't prove fraud.

What this practically means

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Executive summary

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Nakel Investments Limited sued the Ministry of Transport, Infrastructure, Housing and Urban Development and National Bank of Kenya, seeking declarations that house No. Nakuru/Hou/MG/37 on Nakuru Municipality Block 5/295 was its private property legitimately acquired, that a notice dated 29th November 2020 requiring it to vacate was null and void, and a permanent injunction against eviction. The 1st defendant counterclaimed, alleging the property was public land with government houses MG 31 and MG 32, that the title was fraudulently obtained, and sought cancellation of the plaintiff's title and of the bank's Kshs. 80,600,000 charge. The plaintiff traced ownership from the government to Wilson Kiprono Chepkwony (1998) through three transfers to itself, and proved payment of Kshs. 2,800,000 for validation and a letter dated 24th December 2015 by S.M Kamanja, Acting Director of Estates, confirming validation of the property as private. The 1st defendant argued the 2007 sale circulars were cancelled in July 2008 and validation was irregular. The court found the plaintiff had proved proper validation, holding that validation was distinct from the cancelled sale and that the 2008 circular and newspaper notice did not cancel validation; the 1st defendant's own witness conceded the validation was proper and admitted he never investigated the acquisition. Applying section 107(1) of the Evidence Act, the court held the party alleging fraud must prove it. Judgment was entered in the plaintiff's favour with declarations and a permanent injunction; the counterclaim was dismissed in its entirety. Costs were awarded to the plaintiff and the 2nd defendant, with interest at court rates from the date of judgment.

Key legal issues

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01

Whether the sale of the suit property was properly validated

Holding

The plaintiff proved proper validation; the 2008 circular and newspaper notice cancelling the sale did not cancel validation

Reasoning

The plaintiff produced receipts of Kshs. 2,800,000 paid to the Ministry of Housing and a letter dated 24th December 2015 by S.M Kamanja confirming validation. PW2, the validating officer, testified the property was non-strategic and duly validated. The 1st defendant's witness admitted under cross-examination that he never investigated the acquisition and that the validation was proper. The 1st defendant, which alleged irregular validation and fraud, produced no evidence of fraud or prosecution and thus failed to discharge its burden of proof.

02

Whether the plaintiff is entitled to the prayers in the plaint and the defendant to the counterclaim

Holding

Plaintiff's declarations and permanent injunction granted; counterclaim dismissed in full

Reasoning

Having found that validation was proper and that the plaintiff is the registered owner with a certificate of lease, the court held the plaintiff entitled to the declaratory and injunctive reliefs sought. It followed logically that the 1st defendant's counterclaim seeking cancellation of title and possession of the houses could not stand, as its factual foundation - irregular validation and fraudulent acquisition - was not proved.

Legal principles established

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  • He who alleges must prove; the party alleging invalidity of title bears the burden of proof under section 107(1) of the Evidence Act
  • Where validation of irregularly alienated government property is undertaken and payment made and acknowledged by the Ministry, the property becomes private property, and a later circular cancelling a sale exercise does not automatically cancel validation already done

Court orders

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  1. 1.A declaration that the subject property being house No. Nakuru/Hou/MG/37 situate at Block 5/295 Nakuru Municipality is a private property legitimately acquired and legally belongs to the Plaintiff
  2. 2.A declaration that the notice dated 29th November 2020 requiring the plaintiff to vacate the subject premises is illegal, null and void ab initio
  3. 3.A permanent injunction restraining or prohibiting the defendants, their servants, agents or employees from evicting the plaintiff or its assigns from the subject premises
  4. 4.Costs of the suit awarded to the plaintiff and the 2nd defendant with interest at court rates from the date of judgment to payment in full
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (first-instance suit; no specific provision cited)

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, "Nakel Investments Limited v Ministry of Transport, Infrastructure, Housing and Urban Development & another (Environment and Land Case E016 of 2020) [2024] KEELC 3971 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3971/eng@2024-04-30

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