Ethics and Anti-Corruption Commission v Irene Juliet Otinga & 2 others; County Government of Mombasa & another (Interested Parties)
The bottom line
#Kenya's Environment and Land Court cancelled a 1994 Mombasa lease over a public road reserve, ruling the allocation was illegal, fraudulent and void.
What this practically means
#Executive summary
#Key legal issues
#Status of the suit property as a road reserve
The suit property was part of a road reserve at all material times, established by survey records, planning evidence and the 2nd defendant's own concession.
The head of survey records and the planner testified, referring to survey plan F/R No. 95/72 and the PDP, that the property was a road reserve. The 2nd interested party confirmed it had always been a road reserve and was still used as a parking lot. Even the 2nd defendant, then Town Clerk, twice conceded this, only disclaiming personal responsibility for the alienation.
Illegality and fraud of the 1994 alienation
The alienation was both illegal and fraudulent: the statutory road-closure procedure was not followed, there was no valid approved PDP, no council resolution and no ministerial approval.
Under the Local Government Act then in force, closing a road required gazette notices of intention and consideration of objections; none existed. The Physical Planning department had no record of an approved PDP, and the produced PDP bore no approval number. There was no evidence of a council or committee resolution or ministerial approval of the 99-year lease. The allocating authority had no power to allocate a public road for private commercial-cum-residential use.
Entitlement to reliefs
The plaintiff was entitled to recovery of the suit property and consequential reliefs: declarations of nullity, rectification of the register, expungement of the survey plan and a permanent injunction, but not vacant possession or damages.
Having found the property was a road reserve illegally and fraudulently alienated, the court held the plaintiff entitled to have it restored to its intended public purpose. Prayers (a) to (e) were granted. Vacant possession was refused because the property was undeveloped and remained in public use as a parking lot, making an order for possession unnecessary.
Legal principles established
#- Public road reserves cannot be validly alienated for private commercial or residential use without compliance with the statutory road-closure procedure, an approved PDP and the requisite approvals.
- A lease issued ultra vires the allocating officers' powers is null and void and incapable of conferring any interest on the allottee or any person claiming through them.
Court orders
#- 1.A declaration that the lease dated 1st September 1994 and registered on 2nd September 1994 in favour of the 1st defendant over Mombasa Municipality/Block XIX/305 was issued ultra vires the 2nd and 3rd defendants' powers, hence null and void and incapable of conferring any interest
- 2.An order directing the Chief Land Registrar to rectify the register by cancellation of the entries relating to the issuance of the said lease
- 3.A declaration that Survey Plan Folio Register (F/R) No. 264/37 creating the parcel is null and void and incapable of conferring any interest
- 4.An order directing the Director of Survey to cancel and expunge Survey Plan Folio Register (F/R) No. 264/37
- 5.A permanent injunction restraining the 1st defendant, his servants, agents and/or assigns from alienating, selling, charging or further charging, leasing, transferring, wasting, disposing of or otherwise dealing with Mombasa Municipality/Block XIX/305
- 6.Costs of the suit awarded to the plaintiff, to be borne by the 1st and 2nd defendants only
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over public land and registered title (Article 162(2)(b) of the Constitution, not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethics and Anti-Corruption Commission v Irene Juliet Otinga & 2 others; County Government of Mombasa & another (Interested Parties)", Case Analysis (2026). ELC LC No. E049 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5801/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.