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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 6145 (KLR)

Kenya Revenue Authority v Said & 4 others (Environment & Land Case 101 of 2018) [2024] KEELC 6145 (KLR)

Environment and Land Court
25 September 2024
NMN.A. Matheka
3,284 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's High Court-level land court cancelled a Mombasa title and bank charge, confirming land reserved for public use since 1975 belongs to KRA.

What this practically means

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Executive summary

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The Kenya Revenue Authority (plaintiff) sued over L.R Mainland North/I/2415, Mombasa, House HG No. 18 in its Bamburi Senior Estate, alleging the 1st defendant held an invalidly issued grant No. 37286 and had fraudulently charged the property to National Bank of Kenya (2nd defendant) for Kshs. 42,000,000, prompting an advertised statutory sale. The plaintiff sought declarations that the grant, the charge and its variation stand revoked/cancelled, ownership, a new grant and a permanent injunction. The 1st defendant denied the claims, alleged the charges were forged, and counterclaimed for a declaration of ownership, eviction, mesne profits of Kshs. 14,280,000 and a limitation bar. The 2nd defendant defended its due diligence and reliance on the register; the Registrar denied allegations. The court framed three issues: ownership, capacity to charge, and costs. Relying on the approved development plan of 1975, construction of the house in 1978, continuous possession by the Customs Department and its vesting in KRA under Section 22 of the KRA Act, and the Ndungu Commission listing, the court held the Commissioner of Lands had no authority to allocate developed public land, the 1st defendant held no valid title and could not encumber it, and dismissed the counterclaim. The plaintiff's suit succeeded substantially, with all declarations granted, cancellation directions, a permanent injunction, and costs to the plaintiff. Judgment delivered at Mombasa on 25th September 2024 by N.A. Matheka J.

Key legal issues

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01

Ownership of L.R MN/I/2415, Mombasa

Holding

The plaintiff (KRA) is the lawful owner; the 1st defendant's grant was invalidly issued over developed public land reserved for the Customs Department since 1975.

Reasoning

The approved Plan No. 38 of 7th February 1975 showed the property was reserved for the Customs Department, which erected House HG No. 18 in 1978. The Commissioner of Lands only had jurisdiction over unalienated public land under the repealed Government Lands Act. The property vested in KRA by operation of law under Section 22 of the KRA Act, and the plaintiff and its predecessor had been in continuous possession. The Ndungu Commission listed the property as public land.

p. 6
02

Whether the 1st defendant had capacity to charge the suit property to the 2nd defendant

Holding

The 1st defendant had no valid title and therefore no capacity to charge the property; the charge and variation of charge were cancelled.

Reasoning

Having found the 1st defendant's grant invalid because it was issued over developed public land, the court held the 1st defendant could not transact with the property in any manner, including creating charges. The charge to the 2nd defendant dated 19th March 2015 and its variation of 18th September 2015 were therefore declared cancelled and the Registrar directed to effect the cancellations.

p. 6
03

The 1st defendant's counterclaim for mesne profits, eviction and a limitation bar

Holding

The counterclaim was dismissed; the 1st defendant failed to prove it on a balance of probabilities, including the limitation defence.

Reasoning

The 1st defendant admitted he never took possession, as the house was occupied by the plaintiff's tenant and staff. The court found the plaintiff and its predecessor had been in possession since 1975/1995, so mesne profits and eviction could not issue, and the limitation defence failed on the facts.

p. 6

Legal principles established

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  • The Commissioner of Lands had no authority to allocate alienated/developed public land; titles issued over developed public land are invalid.
  • A person holding an invalid title cannot transact with or encumber the property.
  • Possession under a reservation dating back to 1975 vested proprietary interests that survived the transfer to KRA by operation of law.

Court orders

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  1. 1.A declaration that Grant Number 37286 issued on 18th February 2003 in respect of Land Reference Mainland North/I/2415, Mombasa and all entries thereto stand revoked.
  2. 2.A declaration that the charge dated 19th March 2015 made in favour of the 2nd defendant National Bank of Kenya Limited registered against L.R MN/I/2415 on 8th April 2015 is cancelled.
  3. 3.A declaration that the variation of charge dated 18th September 2015 registered on 25th September 2015 in favour of National Bank of Kenya Limited is cancelled.
  4. 4.The 4th Defendant to effect the cancellations in prayers (2) and (3).
  5. 5.A declaration that the plaintiff is the lawful owner of Land Reference Mainland North/I/2415, Mombasa.
  6. 6.The 4th defendant to issue a new grant in favour of the plaintiff as the lawful and legitimate proprietor.
  7. 7.A permanent injunction restraining the defendants and all others from dealing with, entering or interfering with L.R MN/I/2415.
  8. 8.Costs of the suit to the Plaintiff.
  9. 9.The 1st defendant's counterclaim dismissed with costs.

Authorities

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Legislation

  • Kenya Revenue Authority ActSection 22
  • Land Registration Act Cap 300Section 24
  • Land Registration Act Cap 300Section 25
  • Land Registration Act Cap 300Section 26(1)
  • Land Registration Act Cap 300Section 28
  • Government Lands Act (repealed)Section 2

Cases cited (1)

  • Satima Enterprises Limited vs The Registrar of Titles, Commissioner of Lands, Kenya Revenue Authority
    Petition 217 of 2011
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land ownership and title (Land Registration Act Cap 300)

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, "Kenya Revenue Authority v Said & 4 others (Environment & Land Case 101 of 2018) [2024] KEELC 6145 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6145/eng@2024-09-25

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