Ethics & Anti Corruption Commission v Mwidani & 4 others (Environment & Land Case 203 of 2007) [2024] KEELC 6924 (KLR)
The bottom line
#Kenya's Environment and Land Court cancelled titles to a Mombasa plot carved from a road reserve, confirming illegally acquired public land gets no constitutional protection.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit property was excised from a road reserve
Yes, the suit property was excised from Mombasa Island/Block X1/535 road reserve and unlawfully created from an already alienated road
PW1 conducted the initial survey under FR 318/180 which was rejected by the Director of Survey for being on a road reserve. PW4 confirmed from official records that FR 318/180 was for LR NO. 22805 in Kilifi County. The rejected plan was nevertheless used to amend the RIM. PW1, PW2, PW4 and PW5 all confirmed the property sat on a road reserve, and that evidence was not rebutted.
Whether the allocation of the suit property was lawful and title protected under Article 40
No, the allocation was ultra vires the council's powers and did not confer good title capable of protection under Article 40
Section 182 of the Local Government Act vested care and control of public streets on the municipal authority in trust for the public. Section 185 empowered closure of streets but not alienation. No gazette notice of road closure specific to the suit road was produced. Only the President or Commissioner of Lands could allocate un-alienated government land under section 3 of the Government Land Act. Therefore the defendants acquired no good title and Article 40 protection does not apply.
Whether the 4th defendant qualified as an innocent purchaser for value without notice
The court did not find the 4th defendant entitled to protection as an innocent purchaser given the root title was defective
DW1 testified to due diligence and payment, but availed receipts for only Kshs.440,000 of the purchase price. She did not know the title bore a survey reference for a Kilifi County plot. Since the root title was itself unlawfully created from an alienated road reserve, no good title passed down the chain to the 4th defendant capable of protection.
Who bears the costs
Plaintiff is awarded costs as costs follow the event
Section 27 of the Civil Procedure Act directs that costs follow the event unless the court orders otherwise for good reasons. The court found no good cause to deviate since the plaintiff proved its claim.
Legal principles established
#- A survey plan that has been rejected cannot be used to create and register a plot
- Statutory power to close a road must be exercised in good faith for the public good, and the road reserve remains alienated government road not available for allocation to private entities/persons
- Constitutional protection of rights to property under Article 40 does not extend to property unlawfully acquired
- Costs follow the event unless ordered otherwise for good reasons
Court orders
#- 1.Declaration that the lease dated 24th June 1997 and registered on 27th June 1997 in favour of 1st & 2nd defendants over Mombasa Island/Block X1/940 is illegal, null, and void ab initio
- 2.Declaration that the transfer of lease dated 3rd July 1997 and registered on 4th July 1997 in favour of 3rd defendant is illegal, null, and void ab initio
- 3.Declaration that the transfer of lease dated 7th April 2000 and registered on 10th April 2000 in favour of 4th defendant is illegal, null, and void ab initio
- 4.Declaration that the charge and further charge registered on 6th July 2000 and 11th February 2002 respectively are illegal, null and void ab initio
- 5.Order directing the Land Registrar Mombasa to rectify and cancel the aforesaid entries from the register of the suit property
- 6.4th defendant directed to give vacant possession of the suit property within the next ninety [90] days
- 7.Order of permanent injunction restraining the 4th defendant from trespassing, transferring, leasing, wasting and or in any manner whatsoever dealing with the suit property, other than by way of a surrender to the Government of Kenya, after the expiry of ninety days
- 8.Costs to the plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land (suit property Mombasa Island/Block X1/940)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethics & Anti Corruption Commission v Mwidani & 4 others (Environment & Land Case 203 of 2007) [2024] KEELC 6924 (KLR)", Case Analysis (2024). ELC Case of Mombasa (2007 plaint dated 20th August 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6924/eng@2024-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.