Kayoyo Investment Limited v Nesclay Limited & 3 others; Nesclay Limited (Plaintiff to the Counterclaim); Kayoyo Investment Limited & 6 others (Defendant to the Counterclaim) (Environment & Land Case E006 of 2022) [2025] KEELC 3027 (KLR)
The bottom line
#Kenya's Environment and Land Court cancelled a title created from private land because the acquisition process itself was illegal, corrupt, and unprocedural.
What this practically means
#Executive summary
#Key legal issues
#Whether Pw1 had authority to file suit for the company and whether limitation could be raised at submissions stage
The court held the 1st, 6th and 7th defendants estopped from raising the issues of time bar and authority since neither was pleaded
The 1st and 6th defendants filed no defence to the counterclaim, and the 7th defendant's defence did not plead limitation or lack of authority. The issues were raised only at the close of hearing. Relying on the principle that parties are bound by their pleadings, the court held it impermissible to frame issues not arising from the pleadings.
Whether LR 7716/16/2 was lawfully created and allocated to the 7th Defendant
No. The subdivision was never completed and no surrender of the mother title occurred; the title is a nullity
The conditional approval of the subdivision required surrender of a portion for a clinic. The mother title showed no entry of surrender, no instrument of surrender was produced, and the Director of Survey confirmed in 1999 that the deed plans were unprocedural. The Commissioner of Lands had no mandate to alienate private land. The 7th Defendant also failed to meet the allotment terms within 30 days, paying only after 2 years.
Whether the title now held by the 1st Defendant is indefeasible
No; it is a nullity and must be nullified under Section 80 of the Land Registration Act
Since the process leading to issuance of the title was illegal, unprocedural and driven by corrupt schemes, the resulting title cannot be protected by indefeasibility. The court applied Dina Management and Daudi Kiptugen that the process of acquisition is material.
Legal principles established
#- A title is a product of the process leading to its issuance; a title acquired through an unlawful process cannot be indefeasible
- The Commissioner of Lands had no power to alienate public land without legal authority; such action is a nullity
- Allocation could only relate to unalienated Government Land, not private land
- Uncontroverted evidence does not automatically entitle a claimant to judgment; the burden of proof must be discharged
Court orders
#- 1.Declaration that the Plaintiff is the sole and lawfully registered proprietor of parcel LR 7716/16
- 2.Declaration that the allotment of the suit property to the 6th and 7th Defendants and the certificate of title over LR 7716/16/2, and the subsequent registration to the 1st Defendant, was illegal, unprocedural and through corrupt schemes, and the allotment and certificate of title are cancelled
- 3.Declaration that all deed plans generated out of the subdivision of LR 7716/16, including deed plans Nos. 425249-425264, are unlawful and are cancelled
- 4.Order directing the 2nd and 3rd Defendants to forthwith reconstruct the Plaintiff's Deed File for LR No. 7716/16 and restore its original title
- 5.Permanent injunction restraining the 1st, 6th and 7th Defendants from charging, selling, leasing, transferring or dealing with LR No. 7716/16 IR 7990
- 6.Award of Kshs. 1,500,000 as damages for trespass against the 1st, 6th and 7th Defendants
- 7.Costs of the counterclaim against the 1st, 6th and 7th Defendants plus interest at court rates from filing of the counterclaim until payment in full
- Jurisdiction invoked
- Environment and Land Court jurisdiction over land title and trespass disputes (counterclaim in a land suit); Article 40 of the Constitution and Land Registration Act invoked by parties
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kayoyo Investment Limited v Nesclay Limited & 3 others; Nesclay Limited (Plaintiff to the Counterclaim); Kayoyo Investment Limited & 6 others (Defendant to the Counterclaim) (Environment & Land Case E006 of 2022) [2025] KEELC 3027 (KLR)", Case Analysis (2025). Not stated in judgment (Environment & Land Case, ELC Nanyuki). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3027/eng@2025-04-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.