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ELCPartially AllowedELC No. 35 of 2010 (consolidated with ELC Petition No. 28 of 2020)· [2025] KEELC 279 (KLR)

Kenya Anti-Corruption Commission v Willesden Investments Limited & 6 others; City Council of Nairobi (Interested Party) (Environment and Land Case Civil Suit 35 of 2010 & Environment & Land Petition 28 of 2020 (Consolidated)) [2025] KEELC 279 (KLR)

Environment and Land Court
30 January 2025
16,141 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~65 min to read original · ~4 min brief

The bottom line

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A Nairobi court cancelled a title created on a public road but confirmed the actual allocated parking land was validly owned, and the Kshs. 22.7 million decree must still be paid.

What this practically means

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Executive summary

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This consolidated judgment of the Environment and Land Court at Nairobi, delivered by Angote J on 30th January 2025, determined ELC No. 35 of 2010 brought by the Kenya Anti-Corruption Commission (now EACC) against Willesden Investments Limited and others, together with ELC Petition No. 28 of 2020 filed by Kenya Hotel Properties Limited. The dispute concerned LR No. 209/12748 (I.R. 66986), allocated in 1994 to Center Park Limited and titled in 1995 in favour of Willesden, which the plaintiff alleged was illegally hived from an 80-feet public road (Kaunda/Posta Road) between Nyayo House and the Intercontinental Hotel. After hearing five surveyors, several witnesses and conducting a site visit with measurements, the court found that the 1995 survey plan (F/R 284/126, Deed Plan 198489) erroneously encroached on the 80-feet road by 37 feet because the surveyor did not follow the approved 1993 Part Development Plan; the land actually allocated and used for parking was a distinct 0.1Ha parcel abutting the Nyayo House wall. The court held the PDP and allotment letter were lawfully issued; the allegation that Center Park Limited never existed was not proved; the Commissioner of Lands lawfully issued the title to Willesden at the allottee's request, distinguishing Torino Enterprises. The grant over LR 209/12748 was declared null and void as created on a public road and cancelled, with a fresh survey ordered on the PDP land. The court declined to bar execution of the Kshs. 22,729,800 mesne profits decree in HCCC No. 367 of 2000 or the call-up of the bank guarantee, citing Section 34(1) of the Civil Procedure Act and lack of jurisdiction over tax matters. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether LR No. 209/12748 encroaches on the 80-feet public road

Holding

The 1995 survey plan (F/R 284/126, Deed Plan 198489) encroached on the 80-feet public road by 37 feet, but the land actually allocated under the 1993 PDP lies between Nyayo House boundary wall and the road and does not encroach; the two parcels are distinct

Reasoning

The court heard five surveyors, considered the 1967 and 1986 survey plans, the 1993 PDP, and conducted a site visit taking measurements. It found the 80-feet road intact on the ground and the allocated 0.1Ha parcel in situ as parking. PW2, the surveyor, admitted she did not follow the PDP dimensions; her survey erroneously mapped the road instead of the abutting land. The mistake was genuine, not intentional.

p. 20
02

Whether the letter of allotment dated 13th January 1994 is null and void

Holding

The PDP was approved and the letter of allotment lawfully issued to Center Park Limited; the failure to update the Physical Planning register does not invalidate it; the allegation that Center Park Limited did not exist was not proved

Reasoning

PW4 testified the PDP was signed by the Director of Physical Planning and Commissioner of Lands though the register was not updated; DW5 produced a certified approved copy. Following Nelson Kazungu Chai, the court held a PDP must be approved before allocation, which was done here. On the company's non-existence, PW3 failed to produce a computer print-out or manual registry extract, so the plaintiff and petitioner did not discharge the burden of proof.

p. 22
03

Whether the allottee lawfully passed title to the 1st Defendant

Holding

The Commissioner of Lands lawfully acceded to Center Park Limited's request that the title be issued to Willesden; no sale by the allottee occurred, distinguishing Torino Enterprises

Reasoning

Torino holds an allotment letter alone cannot confer transferable title and an allottee cannot pass valid title before registration. Here, however, the allottee requested the Commissioner of Lands to issue the title directly to Willesden; the allotment was perfected by payment of Kshs. 4,047,690 and the Commissioner accepted. There was no evidence of a sale by the allottee; the only defect was that the title was issued over the road rather than the allocated land.

p. 25
04

Whether the decretal sum of Kshs. 22,729,800 in HCCC No. 367 of 2000 is payable

Holding

The decree is payable because the land actually occupied and used for parking was the land under the 1993 PDP, which belonged to the 1st Defendant, not the public road; in any event the court lacks jurisdiction under Section 34(1) of the Civil Procedure Act to interfere with execution of the decree

Reasoning

The court found the land the Petitioner used for parking was not the land in LR 209/12748 but the PDP land, so the trespass claim was not founded on public road land. Further, questions relating to execution, discharge or satisfaction of a decree must be determined by the court executing the decree, not by separate suit; the bank guarantee issue is also pending before the Court of Appeal.

p. 26

Legal principles established

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  • A survey plan that does not accord with an approved Part Development Plan encroaching on a public road is subject to cancellation and re-survey
  • An approved Part Development Plan is a mandatory prerequisite for the alienation and survey of public land
  • A title issued over land created on a public road is null and void even where the underlying allocation was lawful
  • A party alleging that an allottee company did not exist bears the burden of proving that allegation

Court orders

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  1. 1.A declaration that the letter of allotment dated 13th January 1994 addressed to Center Park Limited and Part Development Plan reference number 42/10/93/1 dated 20th August 1993 were lawfully issued
  2. 2.A declaration that Grant No. I.R. 66986 of 15th September 1995 in respect of L.R. No. 209/12748 is null and void, the same having been created on a public road
  3. 3.An order of cancellation of the Grant No. I.R 66986 of 15th September 1995 in respect of L.R. No. 209/12748
  4. 4.A declaration that Grant No. I.R 66986 of 15th September 1995 in respect of L.R. No. 209/12748 be replaced by a fresh survey plan and Deed Plan in the name of the 1st Defendant in respect of the land represented in the Part Development Plan reference number 42/10/93/1 dated 20th August 1993
  5. 5.A declaration that the sum of Kshs. 22,729,800 together with interest awarded to the 1st Defendant in Appeal Case No. 149 of 2007 as mesne profits is payable, unless the Court of Appeal orders otherwise
  6. 6.Each party shall bear his/its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(6)
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Civil Procedure ActSection 34(1)
  • Government Lands Act (repealed)
  • Local Government Act (repealed)
  • Physical Planning Act
  • Companies Act (repealed)

Cases cited (15)

  • Abdalla Mohamed Salim & Another vs Omar Mahmud Shallo & Another
    [2014] eKLR
  • Charles Karaithe Kiarie & 2 Others vs Administrators of the Estate of John Wallace Mathare (Deceased) & 5 Others
    [2013] eKLR
  • Torino Enterprises Limited vs Attorney General
    [2023] KESC 79 (KLR)
  • Munyu Maina vs Hiram Gathiha Maina
    [2013] eKLR
  • Dina Management Limited vs County Government of Mombasa & 5 Others
    [2023] KESC 30 (KLR)
  • Mangrove Investments Limited vs Attorney General & another
    [2020] eKLR
  • Universal Hardware Limited vs African Safari Club Limited
    [2013] eKLR
  • Mwinyi Hamisi vs Attorney General
    Civil Appeal No. 125 of 1997
  • Chief Land Registrar & 4 Others vs Nathan Tirop Koech & 4 Others
    [2018] eKLR
  • Nelson Kazungu Chai & 9 Others vs Pwani University
    [2014] eKLR
  • African Line Transport Co. Ltd vs the Hon. AG Mombasa
    HCCC No. 276 of 2013
  • Kenya Anti-Corruption Commission vs Deepak Chamanlal Kamni and 4 Others
    [2014] eKLR
  • Kenya Armed Forces Old Comrades Association Registered Trustees vs City Council of Nairobi & 7 others
    [2022] KEELC 3857 (KLR)
  • Peter Wariire Kanyiri v Chrispus Washumbe & 2 others
    Environment and Land Court Case No 603 of 2017; [2022] eKLR
  • Report of the Commission of Inquiry into Illegal/Irregular Allocation of Public Land (The Ndung'u Land Report)
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court jurisdiction over disputes relating to environment, use and occupation of, and title to, land)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Kenya Anti-Corruption Commission v Willesden Investments Limited & 6 others; City Council of Nairobi (Interested Party) (Environment and Land Case Civil Suit 35 of 2010 & Environment & Land Petition 28 of 2020 (Consolidated)) [2025] KEELC 279 (KLR)", Case Analysis (2025). ELC No. 35 of 2010 (consolidated with ELC Petition No. 28 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/279/eng@2025-01-30

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