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ELCDismissedELC Case No. 639 of 2015· [2024] KEELC 6534 (KLR)

Registered Trustees of Sheik Bayed Bin Sultan Al Nahyan v Pelican Engineering & Construction Company Limited & 4 others (Environment and Land Case 639 of 2015) [2024] KEELC 6534 (KLR)

Environment and Land Court
3 October 2024
LMLucy N. Mbugua
11,652 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~47 min to read original · ~4 min brief

The bottom line

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A Nairobi court cancelled two competing titles over prime Upper Hill land, holding neither owner proved their title was lawfully acquired.

What this practically means

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Executive summary

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The Environment and Land Court at Nairobi (Lucy N. Mbugua, J) determined competing claims of ownership by three parties over parcel L.R. No. 209/11552 in Upper Hill, Nairobi. The plaintiff traced its title to a 1990 presidential allotment and a grant registered in 1992; the 1st defendant relied on an allotment of 5.1.1991 and a title registered in 2015; the 5th defendant claimed the land as part of the mother title L.R. 209/6525 vested in it by Legal Notice No. 169 of 2006. The court held that the plaintiff's allocation was unlawful because the suit land, then held by Kenya Railways under the mother title, was not unalienated government land at the date of allotment; the surrender by Kenya Railways post-dated the allotment and was irregularly perfected; and no application, planning or survey preceded the allocation. The 1st defendant's allotment was found fraudulent, as the parcel it described did not exist on the allotment date and no root of title was proved. The 5th defendant, having tendered no evidence, could not have its claim determined. Both the plaintiff's suit and the 1st defendant's counterclaim were dismissed, the parallel titles cancelled, and the land ordered to revert to Kenya Railways Corporation or its lawful beneficiaries. The stay of ELC 302 of 2015 was discharged, and each party was ordered to bear its own costs.

Key legal issues

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01

Validity of the plaintiff's allocation and title

Holding

Invalid - the allotment preceded the surrender of the mother title, there was no application for allocation, and the subdivision/survey process was unprocedural

Reasoning

The allotment letter dated 22.1.1990 was issued while the mother title L.R. 209/6525 remained registered in favour of Kenya Railways, so the land was not unalienated government land under section 3 of the repealed Government Lands Act. No application for allocation was proved, the surrender was irregularly registered without endorsement on the title, and no evidence of planning and survey preceded the allocation.

p. 16
02

Validity of the 1st defendant's title

Holding

Invalid and fraudulent - the 1st defendant had no evidence of an application, no account of the root of title, and its allotment letter bore an L.R. number for a parcel that did not yet exist

Reasoning

The allotment letter of 5.1.1991 already carried L.R. No. 209/11552 with a deed plan dated 15.2.1992, yet there was no explanation of how the parcel was birthed. The title was only issued 22 years later in 2013/2015 with no explanation. There was no acceptance of the allotment or payment of stand premium. These defects point to fraudulent and corrupt acquisition.

p. 19
03

Effect of absence of evidence by the 5th defendant

Holding

The court could not pronounce on the 5th defendant's claim because it tendered no evidence despite pleading it

Reasoning

Whatever is pleaded must be proved by evidence. The 5th defendant's claim in ELC 302 of 2015 had been stayed by consent and the 5th defendant called no witnesses in this suit. Its submissions were disregarded because submissions cannot take the place of evidence.

p. 12
04

Good faith and disclosure in litigation

Holding

The plaintiff acted in bad faith by filing suit without joining the 5th defendant which had already sued it over the same land

Reasoning

The plaintiff was sued by the 5th defendant in ELC 305 of 2015 in April 2015 yet filed this suit in July 2015 without disclosing or joining the 5th defendant, only amending its pleadings in October 2020. Parties must act in utmost good faith and make full disclosure of material facts.

p. 19

Legal principles established

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  • When a registered proprietor's root of title is under challenge, the proprietor must go beyond the instrument of title and prove the legality of the acquisition
  • Titled land is not available for allocation; allocation of land must trace to unalienated government/public land following a procedurally valid process
  • Where two or more titles exist over the same land, the court investigates from the root; the title conforming to procedure and tracing its root without a break is upheld
  • The acquisition of title must be assessed by the process of acquisition, not merely the end result

Court orders

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  1. 1.The plaintiff's claim is hereby dismissed
  2. 2.The Counterclaim of the 1st defendant is hereby dismissed
  3. 3.The unlawful titles issued to the plaintiff and the 1st defendant in respect of the suit parcel L.R. 209/11552 are hereby cancelled
  4. 4.The suit land parcel L.R. 209/11552 shall revert to the Kenya Railways Corporation or to its lawful beneficiaries
  5. 5.The consent order given on 3.3.2020 staying the suit 302/2015 is discharged and the said matter is to proceed
  6. 6.Each party shall bear their own costs of this suit
Jurisdiction invoked
Article 162(2) of the Constitution - Environment and Land Court jurisdiction over land disputes

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Registered Trustees of Sheik Bayed Bin Sultan Al Nahyan v Pelican Engineering & Construction Company Limited & 4 others (Environment and Land Case 639 of 2015) [2024] KEELC 6534 (KLR)", Case Analysis (2024). ELC Case No. 639 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6534/eng@2024-10-03

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