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ELCPartially AllowedNairobi ELC Case No. 1259 of 2016 (transferred to Kajiado ELC)· [2025] KEELC 1271 (KLR)

Export Processing Zone Authority v Mutungei & 3 others (Environment & Land Case 130 of 2018) [2025] KEELC 1271 (KLR)

Environment and Land Court
13 March 2025
6,100 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that land the government compulsorily acquired in 1991 belongs to EPZA, cancelling a private party's title over it.

What this practically means

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Executive summary

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The Plaintiff, a State corporation established under the Export Processing Zone Authority Act, sued over one hectare excised from Kajiado/Olooloitikoshi/Kitengela/61 which the Government compulsorily acquired in 1991 via Gazette Notices 2802 and 2803, compensating the 1st Defendant Kshs. 42,550. The excised parcel, Kajiado/Kitengela/74012, was erroneously registered in the 2nd Defendant's name in 2014 despite the acquisition. The Plaintiff sought a declaration of ownership, cancellation of the 2nd Defendant's title and issuance of a fresh title, mesne profits, and costs. The 2nd Defendant counterclaimed for reimbursement of Kshs. 50,000 excision costs, compelled water supply under an alleged informal agreement, and compensation or removal of wayleave pipes on parcel 96451. The 3rd Defendant supported the Plaintiff's case and the 4th Defendant (NLC) confirmed the acquisition, compensation and the wrongful registration. The court found ownership undisputed: the suit parcel duly belongs to the Plaintiff, entitling it to rectification under Section 80 of the Land Registration Act. The counterclaim was dismissed in its entirety: the water agreement was unenforceable, reimbursement was unfair since the subdivision served the 2nd Defendant's own purposes, and the wayleave compensation claim was premature as the Land Act acquisition process had not concluded. Mesne profits of USD 188,463.48 were denied as unproved special damages. Judgment was entered for the Plaintiff with a declaration of ownership, an order cancelling the 2nd Defendant's title and issuing a fresh title to the Plaintiff, dismissal of mesne profits and the counterclaim, with costs borne by the 1st and 2nd Defendants.

Key legal issues

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01

Ownership of Kajiado/Kitengela/74012

Holding

The suit parcel rightfully belongs to the Plaintiff, having been compulsorily acquired in 1991 with due compensation to the 1st Defendant, and the Plaintiff is entitled to rectification and registration as proprietor

Reasoning

The court found it undisputed that one hectare was acquired via Gazette Notices 2802 and 2803 of 13th June 1991, compensation of Kshs. 42,550 was paid, possession taken and a water tank constructed. The 2nd and 4th Defendants confirmed the acquisition. The 2nd Defendant admitted the parcel was excised on behalf of the Plaintiff. Section 80 of the Land Registration Act empowered rectification as the registration resulted from mistake.

p. 8
02

Reimbursement of Kshs. 50,000 excision costs

Holding

The 2nd Defendant is not entitled to reimbursement

Reasoning

The Defence and Counterclaim showed the 2nd Defendant subdivided parcel 8222 into eight portions for his own purposes, not solely to excise the Plaintiff's hectare. The excised parcel was nonetheless registered in the 2nd Defendant's own name, and he refused to transfer despite the Plaintiff offering to meet transfer charges. It would be unfair to condemn the Plaintiff to reimburse costs of an action not beneficial to it and which led to the suit.

p. 9
03

Compulsion to supply water to the 2nd Defendant

Holding

The alleged informal agreement to supply water is not legally binding or enforceable; the prayer is dismissed

Reasoning

The court found the alleged water-supply agreement was not in writing but an informal arrangement based on mutual respect and trust. Such an agreement is not legally binding or enforceable, and the court cannot compel one party to act. The 4th Defendant also confirmed the Gazette notice had no clause requiring the Plaintiff to supply water to the 2nd Defendant.

p. 9
04

Compensation for wayleaves on excess land

Holding

Claim dismissed as premature; compensation for compulsory acquisition must follow the Land Act process

Reasoning

Sections 107 to 133 of the Land Act outline the compulsory acquisition process including compensation under Sections 113 and 115, and dispute resolution under Sections 128 and 133. The Plaintiff had applied for creation of a wayleave and the NLC had requested preliminary documents. Seeking compensation before the acquisition process concluded was putting the cart before the horse.

p. 10
05

Mesne profits of USD 188,463.48

Holding

Claim denied for failure of proof

Reasoning

Mesne profits are special damages which must be specifically pleaded and proved, per the Court of Appeal in Chief Land Registrar v Nathan Tirop Koech. The Plaintiff did not hinder the 2nd Defendant's occupation was immaterial; rather, the Plaintiff itself utilised the property without hindrance and the 2nd Defendant was not using it. The pleaded figure had no evidential basis of how it was computed.

p. 10

Legal principles established

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  • Mesne profits, being special damages, must be both pleaded and proved
  • Under Section 80 of the Land Registration Act, a court may order rectification of the register where a registration was obtained, made or omitted by fraud or mistake
  • Land compulsorily acquired by the Government and duly compensated is not available for re-alienation and belongs to the acquiring authority

Court orders

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  1. 1.A declaration that parcel of land previously known as Kajiado/Olooloitikoshi/61 and currently known as Kajiado/Kitengela/74012 together with other subdivisions thereof forming 1 hectare belongs to the Plaintiff
  2. 2.The 3rd Defendant ordered to cancel the title deed issued to the 2nd Defendant and issue a fresh title in favour of the Plaintiff for Kajiado/Kitengela/74012 and subdivisions forming one hectare
  3. 3.The prayer for mesne profits is dismissed
  4. 4.The 2nd Defendant's counterclaim is dismissed
  5. 5.Costs be borne by the 1st and 2nd Defendants
Jurisdiction invoked
Environment and Land Court jurisdiction under the Land Registration Act, Section 80 (rectification of the register)

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, "Export Processing Zone Authority v Mutungei & 3 others (Environment & Land Case 130 of 2018) [2025] KEELC 1271 (KLR)", Case Analysis (2025). Nairobi ELC Case No. 1259 of 2016 (transferred to Kajiado ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1271/eng@2025-03-13

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