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ELCPartially AllowedPetition dated 14th September 2023 (ELC, Mombasa)· [2025] KEELC 1219 (KLR)

Ragen (Suing in the Public Interest) v Safqa Limited & 6 others (Environment & Land Petition E008 of 2023) [2025] KEELC 1219 (KLR)

Environment and Land Court
12 March 2025
SKS. M. Kibunja
4,460 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Mombasa cancelled Safqa Limited's title to a reserved bus park plot, ruling buyers must prove their title is lawful when challenged.

What this practically means

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Executive summary

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The petitioner, a public interest litigant, petitioned the Environment and Land Court at Mombasa seeking declarations and orders in respect of plot No. 1580 Mwembelegeza Settlement Scheme, which he averred was reserved as a public utility bus park. He contended that despite a caveat placed on the plot by the District Land Adjudication and Settlement Officer in February 2007, a title certificate was issued in 2014 to Anthony Charo Karisa and transferred in 2015 to the 1st respondent, Safqa Limited, which built a private shopping mall on the plot. The 1st respondent defended its title as a bona fide purchaser for value without notice, relying on the green card and a rates statement; all other respondents, including the County Government and the Land Adjudication Officer, confirmed the plot remained reserved for a bus park. The court framed four issues: whether the plot was reserved public utility land; whether it was available for alienation and whether the 1st respondent acquired good title; and what reliefs and orders to grant. Applying section 26 of the Land Registration Act and the Supreme Court's decision in Dina Management Limited v County Government of Mombasa, the court held that a challenged title shifts the burden of proving legality to the purchaser. The 1st respondent's search post-dated its registration; its director could not explain due diligence, the vendor produced no allotment letter, and Settlement Fund Trustees as first registered owner showed the plot emanated from public land. The court found the 1st respondent failed to prove it was a bona fide purchaser; Charo Karisa had no title to pass. The petition substantially succeeded: declarations issued that the plot is public utility land reserved for a bus park, the caveat remains valid, and Safqa Limited's title is null and void ab initio; the Chief Land Registrar was ordered to cancel the title; a permanent injunction issued; the 1st respondent was ordered to demolish and restore the land within 90 days with a default demolition clause; a boundary re-establishment order was made; and the 1st respondent was condemned to costs. Certain ancillary prayers, including those compelling EACC investigations and the production of a new registry stamp, were declined for lack of particularization and evidence.

Key legal issues

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01

Whether plot 1580 was reserved public utility land (bus park)

Holding

Yes - the 2007 caveat letter listing plot 1580 as a bus park was confirmed by the 2nd, 4th, 5th, 6th and 7th respondents' evidence

Reasoning

The court reproduced the letter of 28th February 2007 from the District Land Adjudication & Settlement Officer listing public utility plots including 1580 as a bus park. The County Government (DW1) and the Land Adjudication officer (DW3) confirmed from their records and the accountability list that the plot remained reserved as a bus park. Only the 1st respondent disputed this, producing a revised Part Development Plan that did not show the plot as a bus park, which the court weighed against the official records.

p. 7
02

Whether the 1st respondent acquired good title as a bona fide purchaser for value without notice

Holding

No - the 1st respondent failed to prove it was a bona fide purchaser; the root title from Settlement Fund Trustees to Antony Charo Karisa was never demonstrated to be lawful

Reasoning

The search was done on 28th September 2015, after registration, so it could not constitute due diligence. DW2 could not recall who conducted due diligence, did not know what a letter of offer was, produced neither the vendor's title nor development approvals, and did not know the plot was reserved as a bus park. The first registered owner was Settlement Fund Trustees, showing the plot emanated from public land; the 1st respondent failed to call the vendor or Settlement Fund Trustees to prove the legality of the transfer. Under section 26 LRA the title is defeasible where acquired illegally or unprocedurally.

p. 8
03

Whether the title was available for alienation when first registered to Antony Charo Karisa

Holding

No - no allotment letter was issued and no requisite fees shown as paid; the plot was not available for alienation having been reserved for a bus park

Reasoning

The green card showed first registration on 11th April 2014 in the name of Settlement Fund Trustees with same-day transfer to Karisa. The court held that the first registered owner being Settlement Fund Trustees was evidence the plot emanated from public or government land, and that no allotment letter or payment of Settlement Fund Trustees fees was shown. Reservation as a public utility meant the plot was not available for alienation, so the registration of Karisa was irregular and passed no title.

p. 8

Legal principles established

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  • Where a certificate of title is under challenge, the burden of proving its legality shifts to the party claiming ownership under it
  • A person who buys from one without good title acquires no title; public utility land reserved under a scheme is not available for alienation

Court orders

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  1. 1.Declaration that plot No. 1580 Mwembelegeza Settlement Scheme, Mombasa County is a Public Utility Land reserved for Bus Park only
  2. 2.Declaration that the letter Ref. No. DLASO/MSA/208VOLIII/154 dated 28th February 2007 placing caveat on the suit land is still valid and has never been vacated
  3. 3.Declaration that the title deed/certificate and all subsisting entries in the name of Safqa Limited are invalid, null and void ab initio
  4. 4.Order directing the Chief Land Registrar Mombasa (2nd respondent) to cancel the title and all subsisting entries in the name of Safqa Limited and Anthony Charo Karisa
  5. 5.Permanent injunction restraining the 1st respondent from trespassing, constructing, sub-dividing, transferring, developing, selling, or occupying the suit land
  6. 6.Order directing the 1st respondent to remove all developments and structures and restore the land within 90 days, in default the 5th respondent to demolish at the 1st respondent's cost
  7. 7.Order directing the 2nd respondent with the Director of Survey of Kenya to re-establish the exact boundary of the suit land within 120 days
  8. 8.Declaration that the 1st and 2nd respondents violated Article 62(4) of the Constitution
  9. 9.1st respondent to bear the costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 35(1), 54(1)(c), 62(4), 67(2), 73, 74, 75
  • Land Registration ActSection 26
  • Land Act of 2012Section 8, section 8(1)(c)
  • Access to Information ActSections 4(1)(2)(3) & (5)

Cases cited (1)

  • Dina Management Limited versus County Government of Mombasa & 5 Others
    Petition No. 8 (E010) of 2021
Jurisdiction invoked
Constitution of Kenya 2010 (public interest petition under the bill of rights, Articles 35, 62, 54 invoked); Environment and Land Court jurisdiction over public land

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, "Ragen (Suing in the Public Interest) v Safqa Limited & 6 others (Environment & Land Petition E008 of 2023) [2025] KEELC 1219 (KLR)", Case Analysis (2025). Petition dated 14th September 2023 (ELC, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1219/eng@2025-03-12

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