https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4998

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MOMBASA** **ELC CASE NUMBER 94 OF 2012** **KALISTE LIMITED……………………………………..….PLAINTIFF** **-VERSUS-** **1. ATTORNEY GENERAL** **2. TULSI CONSTRUCTION DISHES** **3. THE REGISTRAR OF TITLES, MOMBASA** **4. THE CABINET SECRETARY FOR LANDS AND SETTLEMENT** **5. THE DIRECTOR OF SURVEYORS** **6. THE DISTRICT SURVEYOR, MOMBASA COUNTY…….DEFENDANTS** **JUDGMENT** **Background** 1. By a Plaint dated 16th May 2012 as amended on 26th September 2012 and further amended on 27th July 2017, Kalliste Limited (hereinafter “the Plaintiff”) prays for judgment against the six (6) Defendants jointly and severally for: 2. **A declaration that the purported revocation of the Plaintiff's title over the parcel of land known as Mombasa/Block XXVI/1084 by the Registrar of Titles, Mombasa District, is unlawful, null and void;** 3. **A declaration that the purported cancellation of the Survey Plan F/R No. 400/87 which rendered subdivision of the Suit Property, Mombasa Island/Block XXVI/1084 obsolete is unlawful, null and void;** 4. **A declaration that the Plaintiff is the lawful leasehold proprietor of the Suit Property namely, Mombasa Island/Block XXVI/1084;** 5. **A declaration that the Plaintiff is entitled to quiet possession and enjoyment of the said parcel of land known as Mombasa /Block XXVI/1084;** 6. **An order of mandatory injunction to compel the 5th and 6th Defendants to restore the subdivision of land parcel number Mombasa/Block XXVI/1060 by which the suit property known as Mombasa /Block XXVI/1084 was created and to reinstate the Survey Plan F/R No. 400/87 in its original form;** 7. **A declaration that the entry by the Government Training Institute (now a campus of the Kenya School of Government), the Ministry of Public Works and the 2nd Defendant into the suit property and the construction thereon of a building is unlawful;** 8. **A declaration that the occupation of the Suit Property by the Government Training Institute (now a campus of the Kenya School of Government), the Ministry of Public Works and the 2nd Defendant, their contractors, servants or agents amounts to trespass;** 9. **An order that the structures put up by the Government Training Institute (now a campus of the Kenya School of Government), the Ministry of Public Works and the 2nd Defendant, their contractors, servants or agents on the Suit Property be demolished forthwith;** 10. **An order that the Defendants do clear all the debris resulting from the demolition aforesaid;** 11. **A permanent injunction restraining the 2nd Defendant by itself, its servants or agents or otherwise howsoever from entering upon, remaining on, carrying out any construction on or any other activity or having any dealing on and/or with all that parcel of land known as Mombasa/Block XXVI/1084 or any part thereof save for the purposes of such entry as may be necessary for demolishing the structures it has put up thereon and carrying away the debris;** 12. **A mandatory injunction requiring the Government Training Institute (now a campus of the Kenya School of Government) and the 2nd Defendant to demolish all the structures it has put up on the parcel of land known as Mombasa/Block XXV1/ 1084 and to remove therefrom all the debris and other materials arising from such demolition;** 13. **Vacant Possession of Mombasa/Block XXVI/1084;** 14. **Damages for trespass;** 15. **In the alternative to above, a sum of Kshs. 300,000,000/= being the current market value of Mombasa/Block XXVI/1084 to be paid by 1st Defendant and the Government Training Institute (now a campus of the Kenya School of Government). being the value-of Mombasa/Block XXVI/1084;** 16. **Costs of and incidental to this suit; and** 17. **Any other or further relief that this Honourable Court may deem appropriate to award.** 18. Those prayers arise from the Plaintiff’s contention that at all material times, it was and still is the registered proprietor of all that parcel of land known as Mombasa Block/XXVI/1084 situated within Kizingo area of Mombasa Municipality (the suit Property) and that by virtue of such registration, the Plaintiff is the absolute and indefeasible owner entitled to enjoy all the rights and privileges belonging or appurtenant thereto. 19. It is the Plaintiff’s case that it purchased the suit property on 7th July 1997 from an entity known as Nova Holdings Limited at a consideration of Kshs. 10,690,556/= and that its leasehold interest over the property was at all times valid and lawful and that the same could only be terminated by the Government after following the due process of the law. 20. The Plaintiff avers that in 2002, way after the original certificate of lease had been issued, the 5th and 6th Defendants unilaterally and without any legal basis and without according the Plaintiff an opportunity to be heard, cancelled the subdivision of parcel number 1060 and Survey Plan F/R No. 400/87 by which the suit property had been created thereby rendering the suit property obsolete and non-existent and the Plaintiff’s title thereof null and void. 21. The Plaintiff further avers that by a Gazette Notice No. 9058 published in the Kenya Gazette of 6th July 2012 and 20th July 2012, the 3rd Defendant purported to revoke the Plaintiff’s title over the suit property on the allegations that it is one of the properties that had been illegally and unconstitutionally located to private developers. 22. It is the Plaintiff’s case that it has complied faithfully with the terms and conditions of the lease with the Government of Kenya and the 3rd Defendant has no right in law or at all to revoke the title and the 5th and 6th Defendants have no right to cancel either the subdivision by which the suit property was created or the survey plans relating to the property. 23. The Plaintiff avers further that sometimes in January 2012 or thereabouts, the Government Training Institute, Mombasa, without the consent of the Plaintiff entered upon the suit property and unlawfully took possession of the same and commenced construction thereon of an ultra-modern complex through the 2nd Defendant. 24. The Plaintiff further asserts that despite demand made and notice of intention to sue the Defendants have neither stopped the construction nor vacated the suit property thereby rendering this suit necessary. 25. The Attorney General, the Registrar of Titles Mombasa, the Cabinet Secretary Land and Settlement, the Director of Surveys and the District Surveyor Mombasa (sued respectively as the 1st, 3rd, 4th, 5th and 6th Defendants) filed a joint Statement of Defence and Counterclaim dated 23rd August 2013 and amended on 24th October 2017. 26. The 1st, 3rd, 4th, 5th and 6th Defendants aver that the Plaintiff is not and has never been the legally valid registered proprietor of the suit property nor has he ever paid rates in regard to the said property. The Defendants deny knowledge of the claim by the Plaintiff that it purchased the suit property and aver that the Plaintiff was not a purchaser for value and that the purchase transaction was tainted with irregularities intended to defeat justice and no consideration passed from the Plaintiff. 27. In the alternative, the said Defendants assert that if the Plaintiff purported to purchase the suit property from the said Nova Holdings Limited, it had done so at its own risk as the Plaintiff was aware that the suit property was owned by the Government Training Institute (GTI Mombasa) which was at all material times in occupation of the land. 28. It is the Defendant’s case that the suit property has never at any time been possessed, used, occupied or owned by the Plaintiff and consequently the allegation that GTI Mombasa has entered and trespassed thereon are false and unfounded as the property is a public utility plot which was allocated to the said GTI Mombasa. 29. The Defendants aver that the gazettment of any cancellation of title was for purposes of notifying the media of the existence of an illegally produced lease title and the title has always been under challenge from the moment the Defendants realised its existence. 30. By way of the Counterclaim, the 1st Defendant avers that the land in dispute forms part of land parcel numbers MI/XXVI/1084, MI/XXVI/1059 and MI/XXVI/951 which were irregularly excised from the original parcel of land known as MI/XXVI/234 allocated to and reserved for use and occupation by the Government Training Institute Mombasa. 31. The 1st Defendant avers that at all material times to this suit, the 2nd Defendant was his agent employed under a construction contract to develop an ultra-modern training building for the Kenya school of Government and not a trespasser as stated by the Plaintiff. 32. The 1st Defendant further avers that the Plaintiff was negligent and reckless in purchasing the property which it knew or ought to have known to belong to the Government or it did so intentionally to defraud the Government of the said public land. 33. Accordingly, the 1st Defendant prays for orders as follows: 34. **The Plaintiff’s suit be dismissed with costs;** 35. **The 1st Defendant’s Counterclaim be allowed;** 36. **A declaration that the suit property is alienated Government land belonging to GTI Mombasa;** 37. **A permanent injunction restraining the Defendants in the Counterclaim, their agents, servants, employees, assignees, successors or anybody claiming under them from claiming, accessing, trespassing, leasing, selling, charging or mortgaging, pledging or in any way taking any action that may prejudice the GTI Mombasa title No. MI/XXVI/234;** 38. **An order calling for and cancelling the purported title document belonging to the Plaintiff (in the original suit) over the property known as Mombasa/Block XXVI/1084 and an order that the same was irregularly hived off from MI/XXVI/234 all belonging to and forming part of the parcel of land belonging to the Plaintiff in the Counterclaim; and** 39. **Costs of the suit be awarded to the 1st Defendant.** 40. Tulsi Construction Ltd (the 2nd Defendant) equally filed a Statement of Defence dated 19th October 2017 aligning itself to the position taken by the 1st, 3rd 4th 5th and 6th Defendants and asserting that it was carrying out construction on the suit property as an agent of the said Defendants. 41. At the trial herein, the Plaintiff called 1 witness in support of its case. The Defendants on the other hand called a total of 4 witnesses in support of the defence. **Analysis and Determination** 1. I have carefully perused and considered the pleadings filed by the parties, the testimonies of their witnesses as well as the evidence adduce at the trial. I have similarly perused and considered the submissions placed before the Court by the Learned Advocates representing the Defendants. The Plaintiff did not file any submissions. 2. By its Plaint as further amended on 27th July 2017, the Plaintiff has made a total of 15 prayers against the Defendants. In the main, the Plaintiff prays for a declaration that it is the lawful leasehold proprietor of all that parcel of land known as Mombasa Island/Block XXVI/1084, situated within Kizingo area in Mombasa. 3. The Plaintiff told the Court that sometime in the year 2012, the Government Training Institute, a training institution operating under the Ministry of State for Public Service entered upon the said property and unlawfully took possession thereof and commenced construction of a building thereon. It was the Plaintiff’s case that the said construction was being carried out by the 2nd Defendant under the supervision of the Ministry of Public Works. 4. It was further the Plaintiff’s case that on 6th July 2012, the Registrar of Titles Mombasa (the 3rd Defendant) had unilaterally and without any legal basis and without according the Plaintiff an opportunity to be heard, cancelled the sub-division of parcel number 1060 and Survey Plan F/R No. 400/87 by which the suit property had been created thereby rendering the suit property obsolete and non-existent and the Plaintiff’s title thereof null and void. 5. The Plaintiff told the Court that the 3rd Defendant had purported to revoke its title over the suit property on the allegations that the suit property was one of the properties that had been allocated to private developers illegally and unconstitutionally. It was the Plaintiff’s case that no Court of law has found that the suit property had been allocated to the Plaintiff’s predecessor in title illegally and hence the revocation was unlawful, null and void and of no effect. 6. The Defendants did not deny having entered the land and proceeding to revoke the Plaintiff’s title. It was the Defendants’ case that contrary to the Plaintiff’s assertion, the Plaintiff is not and has never been legally registered as the proprietor of the suit property. The Defendants asserted that the suit property was at all material times owned and occupied by the Government Training Institute, Mombasa which has at all times been in occupation of the same and using it for training purposes. 7. It was further the Defendant’s case that the Plaintiff’s title has never been supported by any genuine survey plan and/or any deed plan and that any survey or subdivision map that had created the Plaintiff’s title No. Mombasa/Block XXVI/1084 was irregular, null and void. 8. As a result, the Defendants contended that the Government Training Institute did not require the consent, concurrence or connivance of the Plaintiff to access and deveop its property and that the gazettment of any cancellation of title was solely for the purpose of notifying the public of the existence of an illegally procured lease title. 9. In support of its case, the Plaintiff called its director Anish Doshi (PW1) who relied on his written statement dated 16th May 2012 as filed herein on 21st May 2012. PW1 told the Court that the suit property is a leasehold interest from the Government of the Republic of Kenya for a, term of ninety-nine (99) years with effect from 1st July 1997. 10. At paragraph 5 of the Further Amended Plaint, the Plaintiff avers as follows; **“5. The Plaintiff purchased the suit property from a company known as Nova Holdings Limited on 7th July 1997 at a consideration of Kshs. 10,690,556.00.”** 1. While that was the same position stated at paragraph 5 of PW1’s written statement dated 16th May 2012, PW1 changed that position at the trial and instead testified that they did purchase the suit property on 30th December 2005. In support of that position, PW1 produced a sale agreement of even date executed between the Plaintiff and the said Nova Holdings Limited. 2. The Sale Agreement produced as Pexh – 1 states as follows at Paragraph 3 thereof: **“3. The Purchase price for the property is Kenya Shillings ten million six hundred and fifty thousand five hundred and fifty-six (Kshs. 10,690,556/=). Subject to the terms hereof the purchaser shall issue a promissory note in respect of the payment of the purchase price. The due date of payment of the promissory note shall be 1st November, 2006.”** 1. Questioned about the said Sale Agreement in cross-examination, PW1 told the Court that he was not a signatory to the same as he only became a director of the Plaintiff in the year 2010. PW1 told the Court that the Agreement was signed by his late father Maheshkumar Doshi for the purchaser while one Ashok Doshi signed for the vendor. PW1 told the court that the said Ashok Doshi was still alive and had confirmed to him that he had received the promissory note. 2. On their part, the Defendants asserted that the suit property was part of an original parcel of land known as MI/26/234 which was reserved for the Government Training Institute Mombasa on 7th August 1992. The Defendants produced a letter dated 9th May 1988 (Dex 3) written by the Kenya School of Government seeking for the allocation of additional land including a parcel described therein as Plot No. 234/XXVI/MI. 3. It was apparent that upon receipt of the said letter by the District Commissioner Mombasa, a Part Development Plan No. 12.2CT.23.91 was prepared and approved by the Commissioner of Lands for further action including the issuance of a letter of reservation for the land as demonstrated by the Defendants Exhibits 6 and 7. 4. Ms. Catherine Mwikali Katee (DW2), the Administrator of the Kenya School of Government told the Court that they were issued with a Letter of Allotment dated 7th August 1998 for the land and that upon receipt thereof they fenced the suit property in 2002 using a concrete wall. 5. That position was supported by the District Surveyor Mombasa County Ms. Rachel Ndambuki (DW3) who testified that the property was reserved for the Government Training Institute via a Part Development Plan No. 12.2CT.23.91. DW3 further testified that according to the records on 24th April 1997 an excision was carried out on land parcel No. 234 reserved for the Institute creating Plot No. 951 as per F/R 320/16. 6. It was PW3’s testimony that on 9th August 2001, land parcel No. 234 was subdivided into land parcels 1059 and 1060. Subsequently on 19th September 2001, parcel No. 1060 was subdivided into land parcels 1083 and 1084 as per F/R. No. 400/87. 7. As the Court of Appeal held in the case of ***Munyu Maina -vs- Hiram Gathitha Maina (2013) eKLR:*** **“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register.”** 1. In the matter herein, it was apparent from a perusal of the Defendant’s documents (Dexh 6 and Dexh 7) that by a letter dated 13th August 1992 the suit property was already reserved via Part Development Plan No. 12.2CT.23.91 and that a letter of reservation was made in favour of the Government Training Institute, Mombasa. That being the case, it was apparent that by the year 1991 the suit property was already alienated for government use and was therefore not available for reallocation to an individual. 2. While the Plaintiff asserted that the suit property was leased to Nova Holdings Limited on 1st July 1997 before they purchased it thereafter, it was clear to me that the property was by then already reserved for the use by the Institute and the same was unavailable for any further allocation. It was further clear to me from the testimony of PW1 that both the Plaintiff and the said Nova Holdings Limited were more or less the same entity as the same had common directors. That would explain the reason why the alleged purchase was made via a promissory note that would mature one (1) year after the date of the sale. 3. Arising from the circumstances of this case, it was evident that the Plaintiff cannot claim to be an innocent purchaser for value. While it pleaded that it acquired the property on 7th July 1997, there was evidence that the Plaintiff was not incorporated as a company until 4th November 2004. It was further evident that the pleaded date was incorrect as the Sale Agreement produced purports to have been executed on 30th December 2005. 4. As the Supreme Court held in ***Dina Management Limited -vs- County Government of Mombasa & 5 Others (Petition 8 (E10) of 2021) [2-23] KESC 30 (KLR) (21 April 2023) Judgment):*** **“Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired. Having found that the first registered owner did not acquire title regularly, the ownership of the suit property by the appellant thereafter cannot therefore be protected under Article 40 of the Constitution. The root of the title having been challenged, as we already noted above the appellant could not benefit from the doctrine of bona fide purchaser.”** 1. In the premises herein I was neither persuaded that the Plaintiff had purchased the suit property nor that it had acquired any good title thereto. On the other hand, it was evident to me that the 1st Defendant had proven its ownership from the root of the title and that the 1st Defendant was therefore the rightful owner of the suit property. 2. Accordingly, I hereby enter judgment for the 1st Defendant as against the Plaintiff and make orders as follows: 3. **The Plaintiff’s suit is hereby dismissed with costs.** 4. **A declaration is hereby made that the suit property is alienated Government Land belonging to the Government Training Institute Mombasa (now the Kenya School of Government).** 5. **A permanent order of injunction is hereby issued restraining the Plaintiff (in the main suit), its agents, servants, employees, assignees, successors or anybody claiming under them from claiming, accessing, trespassing, leasing, selling, charging or mortgaging or pledging or in any way taking any action that may prejudice the Government Training Institute Mombasa title No. MI/XXVI/234.** 6. **An order is hereby issued calling for and cancelling the purported title document belonging to the Plaintiff (in the original suit) over the property known as Mombasa/Block XXVI/1084 as the same was irregularly hived off from MI/XXVI/234 all belonging to the 1st Defendant herein.** 7. **The Plaintiff shall bear the costs of its suit and of the Counterclaim.** **Judgment dated, signed and delivered in open court and virtually at Mombasa this 30th day of July, 2026.** **…………………………..** **J.O. OLOLA** **JUDGE** **In the presence of:** a) Ms. Firdaus Court Assistant. b) Mr. Makadina Advocate for the Plaintiff c) Mr. Waga Advocate for the 1st, 3rd, 4th, 5th and 6th Defendant d) No appearance for the 2nd Defendant