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ELCPartially AllowedELC No. 026 of 2022· [2025] KEELC 7747 (KLR)

Highland Plaza Limited v Child Welfare Society of Kenya (Environment and Land Case 26 of 2022) [2025] KEELC 7747 (KLR)

Environment and Land Court of Kenya
7 November 2025
18,558 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~74 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court voided Highland Plaza's title because its land allocation predates the company's existence, confirming Child Welfare Society's ownership.

What this practically means

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Executive summary

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Highland Plaza Limited sued Child Welfare Society of Kenya claiming trespass on leasehold Plot Mombasa/Block IX/238 at Makande, seeking declarations of ownership, a permanent injunction, demolition, eviction and general damages. The Defendant denied trespass, contending it was the lawful allottee of the same parcel vide a Letter of Allotment dated 3rd February 1987 which it accepted and paid for, and that it had occupied the land since 1956 running the Mji wa Salama children's home; it counterclaimed for declarations of lawful allotment and ownership, a permanent injunction, revocation of the plaintiff's title, and alternatively adverse possession. The court framed four issues, considered a consensual locus in quo site visit report of 15th July 2023, and heard three plaintiff witnesses (including the Land Registrar Mombasa and a government surveyor) and two defence witnesses (the Deputy Chief Land Registrar and the branch administrator). The court found a classic double allocation. The Defendant's 1987 allocation had a complete documentary trail: allotment letter, acceptance, payment receipt, and Commissioner of Lands' instructions to the Director of Surveys. The plaintiff's title rested on a Deed of Indemnity and a 2004 Certificate of Lease stemming from an alleged July 1991 allocation, when the company, incorporated only in September 1991, did not exist; the plaintiff also lacked a Letter of Allotment and PDP approvals. Relying on the root-of-title principle and Section 26 of the Land Registration Act, the court held the plaintiff's title was irregular, unlawful, null and void. The plaintiff's suit was dismissed; judgment was entered for the Defendant on the Counter-Claim in terms of prayers (1), (2) and (3), with the adverse possession prayer rendered moot. The plaintiff was ordered to bear the costs of both the suit and the Counter-Claim.

Key legal issues

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01

Whether Plot No. Mombasa/Block IX/238 was lawfully allocated to either party

Holding

The Defendant's 1987 allocation, evidenced by Letter of Allotment, acceptance and payment receipt, was lawful and regular; the plaintiff's purported allocation was irregular and unlawful, and its title was null and void

Reasoning

The court examined the statutory framework for acquisition of government land and the effect of registration under the Land Registration Act. Applying the root-of-title principle, it found the Defendant had a complete documentary paper trail from 1987 plus decades of occupation, while the plaintiff's case rested on a Deed of Indemnity and a Certificate of Lease issued in 2004 following an alleged allocation in July 1991 when the company, incorporated in September 1991, did not exist. The plaintiff also produced no PDP approvals or Letter of Allotment.

p. 30
02

Whether the plaintiff is entitled to the orders sought in the Plaint

Holding

No; the suit was dismissed as the plaintiff's Certificate of Lease was impeachable under Section 26 of the Land Registration Act

Reasoning

Although Section 26 makes a certificate of title prima facie evidence of ownership, the title may be challenged where procured by fraud, misrepresentation, illegality or corrupt scheme. Here the title rested on an allocation to a non-existent entity and an acquisition process the Land Registrar's own testimony showed lacked any Letter of Allotment in the correspondence file. The court held an instrument of title cannot sanctify an unlawful acquisition.

p. 31
03

Whether the Defendant is entitled to the orders sought in the Counter-Claim

Holding

Yes; the Defendant proved it was the lawful allottee and was granted declarations and a permanent injunction; the alternative adverse possession prayer was moot

Reasoning

The Defendant demonstrated a complete allocation process (Letter of Allotment dated 3rd February 1987, acceptance and payment of Kshs. 1,532, Commissioner of Lands' instructions to the Director of Surveys) plus continuous open and peaceful occupation since 1956 for a charitable children's home, corroborated by the neutral testimony of the Deputy Chief Land Registrar that the central registry file contained no documents supporting the plaintiff's allocation.

p. 31

Legal principles established

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  • When a registered proprietor's root of title is challenged, the proprietor must go beyond the title instrument and prove the legality of the acquisition
  • A company cannot receive an allocation of land before it legally exists; everything flowing from a nullity is itself a nullity
  • Once the government lawfully allocates land and the allottee accepts and pays, that parcel is not available for a second allocation

Court orders

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  1. 1.The suit by the plaintiff by way of a Plaint dated 3rd March, 2022 dismissed with costs
  2. 2.Judgment entered in favour of the Defendant as per the Counter-Claim dated 30th June, 2022 in terms of prayers (1), (2) and (3) of the Counterclaim with costs
  3. 3.A declaration that the Defendant is the lawful allottee and has acquired valid interest over property known as Mombasa Municipality Block IX/238 from the Government and is entitled to absolute ownership, possession and occupation thereof to the exclusion of the Plaintiff
  4. 4.A permanent injunction restraining the Plaintiff, its directors, agents, employees and/or servants from trespassing, remaining upon, alienating, charging, leasing, disposing of, or in any manner interfering with the Defendant's rights over the suit property
  5. 5.A declaration that any purported title documents held by the Plaintiff relating to Mombasa Municipality Block IX/238 are illegal, null and void and stand revoked forthwith
  6. 6.The costs of the suit and the Counter-Claim to be borne by the Plaintiff
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property situated in Mombasa (the plaintiff averred 'The suit property was situated at Mombasa within the Honourable Court’s jurisdiction' and the defendant admitted 'The jurisdiction of this Honourable Court was admitted')

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, "Highland Plaza Limited v Child Welfare Society of Kenya (Environment and Land Case 26 of 2022) [2025] KEELC 7747 (KLR)", Case Analysis (2025). ELC No. 026 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7747/eng@2025-11-07

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