[2024] KEELC 13690 (KLR)

Kenya Railways Corporation v Combined Warehouse Limited & 5 others (Environment & Land Case 188 of 2017) [2024] KEELC 13690 (KLR) (11 December 2024) (Judgment)

Neutral citation: [2024] KEELC 13690 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Environment & Land Case 188 of 2017

NA Matheka, J

December 11, 2024

Between

Kenya Railways Corporation

Plaintiff

and

Combined Warehouse Limited

1st Defendant

Official Receiver (Liquidator Swan Millers Limited)

2nd Defendant

Director of Survey

3rd Defendant

Commissioner of Lands

4th Defendant

Land Registrar, Mombasa

5th Defendant

County Government of Mombasa

6th Defendant

Judgment

1. A It is the plaintiff’s case is that at all material times is the bonafide owner of what used to be an unsurveyed parcel of land located at Changamwe next to Mitchel Cotts, measuring around 1. 140 acres. The plaintiff averred that between 1987 and 1990 the 3rd, 4th and 5th defendant illegally, fraudulently and unlawfully caused the suit property to be surveyed in Deep Plan No. 130492 and registered as C.R 19951 LR. MN/V/703 in the name of the 1st defendant. On 29th September 1994, the 1st defendant illegally, unlawfully or fraudulently transferred the suit property to the 2nd defendant. The plaintiff urged the court to find that the registration of the 2nd defendant as the proprietor of MV/V/703 is illegal, null and void; and order for its cancellation. The plaintiff prayed for judgement against the defendants jointly and severally for:a.A permanent injunction restraining the defendants by themselves, their servants, employees and/or agents from occupying, constructing, fencing, selling, leasing, disposing any interest of and/or undertaking in the suit property or in any other way interfering with the property and/or plaintiff’s quiet possession and enjoyment of the suit property now registered as CR 19951 LR. MN/V/703. b.A declaration that the purported survey of the suit property in Deed Plan No. 130492 and the purported registration of the suit property and issuance of title deed number CR 19951 LR. MN/V/703 in the names of the 1st defendant was null and void and of no legal effect.c.A declaration that the purported transfer of the suit to the 2nd defendant by the 1st defendant was illegal, null and void and did not confer any proprietary interest upon the 2nd defendant or any other person.d.An order directing the 5th defendant to rectify the land register in respect of the suit property to strike out the names of the 2nd defendant therefrom or such order as will effectively restore the plaintiff’s title and interest in the suit property. e.Costs of this suit.

2. This court has considered the evidence and the submissions therein. Combined Warehouse Limited was granted Grant No. CR. 19951 LR. MN/V/703 Land Survey Plan No. 130492 on 1st July 1988. On 14th April 1994, Combined Warehouse Limited sold the suit property to Swan Millers Limited vide an agreement of sale for Kshs 8,000,000/=. Later on, 1st September 1994, Combined Warehouse Limited transferred the suit property to Swan Millers Limited and the same was registered on 29th September 1994. Despite being registered as the proprietor, neither the 1st defendant nor the 2nd defendant has physically possessed the suit property. The plaintiff testified that its tenant, Aries Kenya Limited, is in physical possession of the suit property and has developed three warehouses, an office block and a cabro-paved open yard. The plaintiff is apprehensive that the suit property will be sold to a third party because the 2nd defendant is under liquidation and the suit property may be sold together with other assets in the liquidation process. Further, the 2nd defendant has defaulted in paying land rates over the suit property to the 6th defendant, which stands at Kshs 7,675,215/= as of 9th September 2016.

3. I have perused the Grant No. CR 19951 was granted to the 1st defendant for a term of 64 years from 1st January 1986, by then Commissioner of Lands James Raymond Njenga on behalf of the President of Kenya on 1st July 1988. The 1st defendant argued that the suit land (unsurveyed land) fell within the definition of unalienated government land subject to the provisions of the Government Land Act, hence was not capable of being vested in or owned by the plaintiff. Section 2 of the repealed Government Lands Act defines “unalienated Government land” as:“Government land which is not for the time being leased to any other person, or in respect of which the Commissioner has not issued any letter of allotment.Section 3 of the repealed Government Lands Act provides that:“The President, in addition to, but without limiting, any other right, power or authority vested in him under this Act, may—a.subject to any other written law, make grants or dispositions of any estates, interests or rights in or over unalienated government land;”

4. The Act qualifies this power as follows:“The powers of the President under this paragraph are delegated to the Commissioner in the following cases only (Cap. 155 (1948), Sub. Leg.)—(a)for religious, charitable, educational or sports purposes on terms and conditions in accordance with the general policy of the Government and the terms prescribed for such purpose by the President;”

5. Section 7 donates the powers of the President to the Commissioner of Lands in alienation of unalienated government land. It provides;“The Commissioner or an officer of the Lands Department may, subject to any general or special directions from the President, execute or and on behalf of the President any conveyance, lease or licence of or for the occupation of Government lands, and do any act or thing, exercise any power and give any order or direction and sign or give any document, which may be done, exercised, given or signed by the President under this Act.”

6. The suit land was reserved for the Kenya Railways, and would not be classified as unalienated government land. Unalienated government land was unavailable for allocation by the Commissioner of Lands to the 1st defendant since it was already reserved for the plaintiff. Therefore, the suit property was already alienated and not available for allocation. Even where the land was unalienated and was available for allocation, the Commissioner of Lands had only been delegated power to alienate unalienated government land for purposes set out under the Government Lands Act. From the reading of Sections 3 and 7 of the Government Lands Act, the President had the sole discretion to alienate unalienated government land. Where he delegated the powers to alienate government land to the Commissioner of Land, these powers were limited to certain circumstances such as religious, charitable, educational or sports and other purposes set out in the said Act. None of the circumstances set out there apply to this case as none have been demonstrated by the 1st defendant.

7. The 1st defendant has not established that the President had authorized the Commissioner of Lands to alienate the suit property. The Commissioner of Lands could not purport to pass any valid title to the 1st defendant that could be registered as a Grant under the Registration of Titles Act Cap 281 (repealed). This court finds that the alienation of the suit property to Combined Warehouse Limited was unlawful and unprocedural. In James Joram Nyaga & Another vs The Hon Attorney General & Another (2007) eKLR, it was held that;“The above section clearly limits the power of the Commissioner to executing leases or, conveyances on behalf of the President and the proviso to the section specifically limits the power to alienate unalienated land to the President. We find and hold that the Commissioner of Lands had no authority to alienate the disputed plot to the Applicants as he purported to do vide the letter of 18th December, 1997. That was the preserve of the President. It follows that the Commissioner of Lands could not have made any grant under the Government Lands Act Cap 280 Laws of Kenya nor could he pass any registerable title under the Registration of Titles Act Cap 281 Laws of Kenya.”

8. The suit property was government land, held in trust by the Commissioner of Lands for the public, the principle of trust required the Commissioner not to use the suit property for any other purpose other than that which would benefit the public such as roads, schools or parks. As a trustee of the public, the Commissioner of Lands could not use the presidential powers delegated to him of alienating unalienated land to allocate land for any use other than for the public good. I have examined the evidence on record and there is nothing to prove that the president had authorized the Commissioner of Lands to alienate the suit property to Combined Warehouse Limited. The court in Kenya Anti-Corruption Commission vs Vincent Kipkurui Tuwei & another (2020) eKLR held that;“That the claim by the defendants that the allocation was through the President’s Executive powers, and that it was procedurally done is a mere allegation as the Defendants failed to offer evidence in support of their averments. That the 2nd Defendant, as the Commissioner of Lands then, ought to have confirmed that the Corporation had surrendered the suit land in accordance with Section 14(4) and (5) of the Kenya Railways Act Chapter 397 of Laws of Kenya before allocating it to the 1st Defendant. That the 2nd Defendant ought to have known that the suit land having been part of the land vested with the Corporation, was already alienated and hence not available for allocation. [See the Court of Appeal Eldoret, decision in Civil Appeal No. 288 of 2010 Kipsirgoi Investments Ltd Vs Kenya Anti-Corruption Commission at pages 26 and 27].That further to the finding above, that the Defendants did not call evidence in support of the averments in their statements of defence, the provision of Section 3 of Government Land Act Chapter 280 of Laws of Kenya on the power delegated to the Commissioner of Land to alienate land is clearly limited to educational, charitable, sports and other purposes set at the foot of page 8 of the Act. That none of the said purposes were available to the 2nd Defendant to alienate the suit land to the 1st Defendant. [See James Joram Nyaga & Another Vs the Hon. Attorney General & Another [2007] eKLR on the limited delegated powers of the Commissioner of Lands].That as the suit land was not available for alienation, and the 2nd Defendant was without powers to allocate it, the title given to the 1st Defendant was unlawfully obtained in terms of Section 40(6) of the Constitution and therefore not protected under Section 26 of Land Registration Act No. 3 of 2012. ”

9. I wish to reiterate that Sections, 3, 7, 9 and 12 of the Government Land Act, did not warrant the Commissioner of Lands with any powers or authority to alienate the suit property and issue the Certificate of Lease. It is therefore the findings of this court that the Commissioner of Lands had no powers to allocate the suit property to private individuals or confer any title, the purported allocation of the suit property to Combined Warehouse Limited was an illegality and cannot be sustained. The Court of Appeal in Henry Muthee Kathurima vs Commissioner of Lands & another (2015) eKLR held that;“We have considered the submissions by the appellant in this appeal and have no hesitation to state that we concur with the findings and decision of the trial court. The Commissioner of Lands had no power to alienate public land and any action taken without due authorization is a nullity. We cite the case of Said Bin Seif v. Shariff Mohammed Shatry, (1940)19 (1) KLR 9, and reiterate that an action taken by the Commissioner of Lands without legal authority is a nullity; such an action, however, technically correct, is a mere nullity, and not only voidable but void with no effect, either as legitimate expectation, estoppel or otherwise.”

10. The transfer of the suit property to Combined Warehouse Limited was unlawful, as the same was contrary to the Government Land Act (repealed). The Commissioner of Lands could not have passed a valid title to the 1st defendant, the issuance of title was irregular and a nullity and must be cancelled. Section 26 of the Land Registration Act which guarantees the concept of indefeasibility of title does not extend to any property that has been found to have been unlawfully acquired. The Court of Appeal in Attorney General vs Torino Enterprises Limited (Civil Application 84 of 2012) (2022) KECA 78 (KLR) (4 February 2022) (Judgment) held that;“We have considered the provisions of section 26 of the Land Registration Act (repealed) in light of the provisions of Article 40 of the Constitution which guarantees protection of right to property and it is our considered view that the concept of indefeasibility of title is subject to Article 40 (6) of the Constitution which states that: “The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.” Guided by the provisions of Article 40 (6) of the Constitution, we hold that the concept of indefeasibility or conclusive nature of title is inapplicable to the extent that title to the suit land was unlawfully acquired. See Denis Noel Mukhulo & Another v. Elizabeth Murungari & Another [2018] eKLR.”

11. I find that the plaintiff having established that they are the legitimate proprietors of the suit property and hence entitled to the said orders in the plaint.

12. Section 80 of the Land Registration Act provides as follows;“80. (1)Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.(2)The register shall not be rectified to affect the title of a proprietor who is in possession and had acquired the land, lease or charge for valuable consideration, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default.”

13. This section gives the court powers to order for rectification of a register by directing that any registration be cancelled of amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake. I find that the Plaintiff has proved that their property was fraudulently transferred to the 1st Defendants. From the foregoing I find that the Plaintiff has proved its case on a balance of probabilities and I grant the following orders;1. A permanent injunction restraining the defendants by themselves, their servants, employees and/or agents from occupying, constructing, fencing, selling, leasing, disposing any interest of and/or undertaking in the suit property or in any other way interfering with the property and/or plaintiff’s quiet possession and enjoyment of the suit property now registered as CR 19951 LR. MN/V/703. 2.A declaration that the purported survey of the suit property in Deed Plan No. 130492 and the purported registration of the suit property and issuance of title deed number CR 19951 LR. MN/V/703 in the names of the 1st defendant was null and void and of no legal effect.3. A declaration that the purported transfer of the suit to the 2nd defendant by the 1st defendant was illegal, null and void and did not confer any proprietary interest upon the 2nd defendant or any other person.4. An order directing the 5th defendant to rectify the land register in respect of the suit property to strike out the names of the 2nd defendant therefrom and restore the plaintiff’s title and interest in the suit property.5. The plaintiff is awarded the costs of this suit.It is so ordered

DELIVERED, DATED AND SIGNED AT MOMBASA THIS 11TH DAY OF DECEMBER 2024. N.A. MATHEKAJUDGE