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ELCPartially AllowedELC Case (Mombasa) – plaint dated October 29, 2018· [2024] KEELC 7266 (KLR)

Mazrui & 2 others v Sunrise Creek Limited & 3 others; Mazrui Lands Board of Trustees (Interested Party) (Environment & Land Case 257 of 2018) [2024] KEELC 7266 (KLR)

Environment and Land Court
30 October 2024
8,272 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a Mombasa land title issued over Mazrui community land, ordering the seller's estate and the government to refund an innocent buyer Kshs.28 million.

What this practically means

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Executive summary

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The plaintiffs, trustees of the Mazrui Community (Development and Welfare) Wakf Lands Trust and representatives of the Mazrui and Shaqsi descendants of Sheikh Rashid bin Salim bin Khamis Mazrui, sued to invalidate the transfer of LR Group 1/93 (5.163 ha) carved from the Mazrui Land (parcel 4236). The late Khaidum Nabhan Rashid had obtained Grant No. 58951 from the Commissioner of Lands in 2013 over the excised parcel and sold it to Sunrise Creek Limited for Kshs.32 million. The court found the suit property was excised from parcel 4236/R, the remainder of the Mazrui Land, which had been held in trust for the Mazrui and protected by the decisions in the two Ahmed Abdalla cases; Khaidum's claim derived from a void allocation of 40 acres to Usama Nabhan Rashid, nullified in Mombasa HCCC No. 230 of 1981. The Commissioner of Lands acted ultra vires and in complicity in alienating private land as government land. Khaidum never acquired good title and could pass none to the 1st defendant, though the defendant was an innocent purchaser entitled to a refund. The court allowed prayers (i) to (vii) of the plaint - declaration of nullity, cancellation, rectification of the register and injunctions - refused general damages as plaintiffs were already in occupation, ordered the first and second third parties jointly and severally to refund the 1st defendant Kshs.28 million with interest, and directed each party to bear their own costs.

Key legal issues

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01

Whether the suit property was excised from the Mazrui Land and the title irregularly obtained

Holding

Yes - the suit property was hived from parcel 4236/R, the remainder of the Mazrui Land, and its excision, registration and disposition to the 1st defendant were irregular and null and void

Reasoning

PW1 and the defence survey and registry evidence established that the suit property was carved out of parcel 4236/R, the remainder of Mazrui Land. The land was privately owned under the Land Titles Act, yet the Commissioner of Lands issued a fresh grant as if it were un-alienated government land, with no conversion of registration regime shown. In complicity with Khaidum Nabhan Rashid, the grant was irregularly obtained and could pass no valid title.

p. 10
02

Whether the 1st defendant was a bona fide purchaser for value without notice

Holding

The court accepted the 1st defendant probably lacked knowledge of the irregularity and was not to blame, but its vendor passed no title; the defendant is entitled to a refund

Reasoning

The 1st defendant conducted due diligence, obtained searches and consents, and paid the purchase price and stamp duty. It did not know of the two Ahmed Abdalla decisions or that the land was carved from Mazrui Land. However, since its vendor never had good title, it could not acquire good title; its remedy lies in a refund of the purchase price from the third parties.

p. 10
03

Whether the third party is entitled to indemnity from the 2nd and 3rd defendants

Holding

Yes - both the estate of Khaidum Nabhan Rashid and the office of the Commissioner of Lands must refund the purchase price jointly and severally

Reasoning

The Commissioner of Lands office was complicit or grossly inefficient in allocating private Mazrui land as government land, and the third party misrepresented the position. The 2nd third party notice was unopposed; applying the presumption in Timsales, the complicity of both the third party's estate and the Commissioner of Lands in creating the suit property was the genesis of the scam, so both bear the refund liability.

p. 13
04

Whether the plaintiffs had locus standi and whether the suit was subjudice

Holding

The objections were abandoned; a board resolution authorised the plaintiffs and the earlier suit had been withdrawn

Reasoning

Although defendants and the third party pleaded objections to the plaintiffs' authority and subjudice, these were abandoned in submissions. The court noted a resolution of the Board of Trustees dated 23rd June 2022 authorised the plaintiffs, and the earlier suit, Mombasa ELC No. 204 of 2014, was withdrawn by notice dated 4th November 2022, mooting the subjudice objection.

Legal principles established

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  • A vendor who never acquired good title is incapable of passing a good title to a purchaser
  • The Commissioner of Lands could only lawfully issue a grant over land that was un-alienated government land

Court orders

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  1. 1.Prayers (i) to (vii) in the plaint dated October 29, 2018 are allowed in favour of the plaintiffs
  2. 2.The 1st Third Party and 2nd Third Party to jointly and severally refund the 1st defendant the purchase price of Kshs.28 million paid under the sale agreement, with interest at court's rates from date of payment until payment in full
  3. 3.Each party to bear their own costs in the suit and third party notices
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property; plaintiffs invoked Article 22 of the Constitution of Kenya

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, "Mazrui & 2 others v Sunrise Creek Limited & 3 others; Mazrui Lands Board of Trustees (Interested Party) (Environment & Land Case 257 of 2018) [2024] KEELC 7266 (KLR)", Case Analysis (2024). ELC Case (Mombasa) – plaint dated October 29, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7266/eng@2024-10-30

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