ASHBRO International Limited v Kamunyu & 2 others; Development Bank of Kenya Limited (Interested Party) (Land Case 6 of 2020) [2024] KEELC 5833 (KLR)
The bottom line
#A Kenyan court voided a title over land reserved as public open space, showing that even registered titles offer no protection if the original allocation was unlawful.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff was the lawful owner of the suit property
No - the property was carved from land reserved as a public open space and was not available for allocation to a private party; the allocation to Kibui and derivative title were nullities
The evidence showed the plot was created in 1993 from an open space; the County's own 14th January 2021 investigations letter and its witness confirmed this. Guided by Dina Management and the Land Planning Act regulations, the court found the allocation illegal, so the Plaintiff's title was void ab initio and unprotected under Article 40(6).
Whether the Plaintiff was entitled to the reliefs sought
No; a party whose title is void cannot obtain evicting, injunction or damages reliefs
Having found the title a nullity, the court declined reliefs whose effect would validate it. Indefeasibility under section 26 of the Land Registration Act is subject to Article 40(6); the Plaintiff also did no due diligence to discover the open-space reservation.
Whether the 2nd Defendant's counterclaim was merited
No; the claim for payment of works and materials was a species of special damages which was neither pleaded with particularity nor proved, and no witness testified
A counterclaim must be proved on a balance of probability. The 2nd Defendant called no witness and produced no quantification of the works done or materials on site; the claim therefore failed and was dismissed.
Costs of the suit and counterclaim
Each party to bear its own costs despite the general rule that costs follow the event
Although costs follow the event, both the Plaintiff and the 2nd Defendant failed; the court in its discretion directed each party to bear its own costs of the suit and counterclaim.
Legal principles established
#- Where a registered title is challenged, the court must examine the root of the title; a title derived from an unlawful allocation of public/reserved land is a nullity and unprotected by Article 40(6)
- Special damages must first be pleaded and then strictly proved
Court orders
#- 1.The Plaintiff's suit is dismissed
- 2.The 2nd Defendant's counterclaim is equally dismissed
- 3.Each party to bear own costs of the suit and the 2nd Defendant's counterclaim
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (Article 162(2)(b) Constitution; suit filed as plaint/counterclaim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ASHBRO International Limited v Kamunyu & 2 others; Development Bank of Kenya Limited (Interested Party) (Land Case 6 of 2020) [2024] KEELC 5833 (KLR)", Case Analysis (2024). Not stated in the extract (Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5833/eng@2024-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.