[2024] KEELC 14007 (KLR)

Prosper Projects Limited v County Government of Mombasa & 4 others (Environment & Land Case 382 of 2010) [2024] KEELC 14007 (KLR) (19 December 2024) (Judgment)

Neutral citation: [2024] KEELC 14007 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Environment & Land Case 382 of 2010

NA Matheka, J

December 19, 2024

Between

Prosper Projects Limited

Plaintiff

and

The County Government of Mombasa

1st Defendant

The Ministry of Education, Science and Technology

2nd Defendant

the Board of Management, Maji Safi Primary School

3rd Defendant

the Land Registrar Mombasa

4th Defendant

the Hon Attorney General

5th Defendant

Judgment

1. The Plaintiff avers that they are the registered proprietors of the parcel of land known as MOMBASA/MAINLAND SOUTH/BLOCK V/213 situated within the Mombasa Municipality which the Plaintiff held on a ninety-nine (99) years Lease from the Government of the Republic of Kenya with effect from 1st March, 1997 at a revisable annual rent of Kshs. 92,000. 00. That the Plaintiff learnt on 5th March, 2010 or thereabouts that the 1st Defendant's predecessor through its servants, agents and/or employees had without the consent of the Plaintiff entered upon the Suit Property on dates unknown to the Plaintiff and unlawfully constructed thereon a School known as Maji Safi Primary School. The Plaintiff avers that the unlawful construction aforesaid amounts to trespass on the Suit Property. As a result of the said act of trespass, the Plaintiff has been deprived of the use and enjoyment of the Suit Property and has suffered loss and damage which is continuing and for which it holds the Defendants predecessor liable.

2. The Plaintiff prays for judgement against the Defendants jointly and severally for;a.A declaration that the Plaintiff is the lawfully registered proprietor of the Suit Property and any other document of title issued by the 4th Defendant in favour of any other person or entity including but not limited to the 2nd and/or 3rd Defendants is a nullity;b.An order that the 4th defendant immediately cancel and/or revoke any document of title over the Suit Property issued by the 4th Defendant in favour of any person or entity other than the Plaintiff;c.A declaration that the putting up by the 1st Defendant's Predecessor and/or the Defendants and/or any other person of the school/structures and/or other developments on the Suit Property was unlawful;d.A declaration that the continued existence of any persons not authorised by the Plaintiff in writing and of the said school/structures and/or other developments on the Suit Property amounts to an act of trespass by the Defendants and/or such other persons so unauthorised;e.An order that the said school/structures and/or other developments on the Suit Property be demolished forthwith by the Defendants;f.An order that the Defendants do clear all the debris resulting from the demolition aforesaid and immediately give vacant possession of the Suit Property to the Plaintiff;g.In default of compliance by the Defendants with orders (e) and (f) above within such period as the court shall deem fit to direct, then an eviction order be issued for the demolition of the school and/or structures and/or other developments on the Suit Property and the removal therefrom together with all persons not so authorised in writing by the Plaintiff, such demolition and eviction to be at the cost/expense of the Defendants herein.h.An order be issued directing the Inspector General of Police and the County Commander of the National Police Services Mombasa to provide adequate contingent of police officers to ensure peace and security in the enforcement of prayer (g) above.i.A permanent injunction restraining the Defendants whether by themselves itself or through their servants, employees, agents or through any one deriving title through them or otherwise howsoever from entering, using, occupying, leasing, transferring, charging, selling or in any manner whatsoever dealing adversely with the Suit Property; namely, MOMBASA/MAINLAND SOUTH/BLOCK V/213;j.In the alternative and without prejudice to orders (b) (e) (f) (h) and (i) above, the Defendants pay compensation to the Plaintiff in the sum of KES. 55,000,000. 00 being the value of the suit property.k.Damages for trespass;l.Costs of and incidental to the suit; andm.Any other or further relief that this Honourable Court may deem appropriate to award.

3. The 1st Defendant denies all the allegations and the Plaintiff is put to strict proof thereof. They state that the Plaintiff's suit as instituted is misconceived, nebulous and a nonstarter and should be struck out and/or dismissed with Costs. The Plaintiff's Claim herein does not lie and the same is for dismissal.

4. The 2nd 3rd 4th and 5th Defendants aver that without prejudice, the suit is inconsistent with Section 12, Section 13A and Section 16 of the Government Proceedings Act, Chapter 40 Laws of Kenya and therefore are not entitled to any or part of the reliefs sought and their suit must fail. Further to the foregoing and without prejudice the Plaintiff herein is attempting to mislead the Court in total that the Defendants' school occupies the whole of the suit property and producing a valuation report to the whole of the suit property.

5. The suit property in dispute is Maji Safi Primary School which caters for around 1261 students of minor age. Some of the pupil students are from marginalized communities in the area in search of knowledge. The 2nd 3rd 4th and 5th Defendant avers that prior to their possession of the suit property; the property was in possession of the Maji Safi Women Group since before the year 1999 and also used for the benefit of the community, thus the name of the school (Maji Safi Primary School) emanated from Maji Safi Women Group. Further to the foregoing Maji Safi Primary School was initiated by the Maji Safi Women Group and has been surveyed, designed and constructed by the government and continued to be supported by the Teachers Service Commission who have provided the teachers at the school. The Maji Safi Primary School was occupying the piece of land MS/V/43 as per the survey plan. The 2nd 3rd 4th and 5th Defendant via Maji Safi Primary School avers that they were in possession of the said suit property since way before the year 1999. The suit property in dispute is a smaller piece of land to what was initially the larger piece of land held by Maji Safi Women Group and the 2nd 3rd 4th and 5th Defendants held in 1999. That through a part development plan developed by the Provincial Surveyor in the Department of Survey, approved by the Town Clerk of the Mombasa Municipal Council and the District Education Office the school parcel of land was surveyed and approved for the construction of a school. The defendants herein allegedly avers that the school was allocated via a letter of allotment in the year 2002 however it is noted that by a letter dated 23rd March 2001 written by the provincial surveyor (Coast) to the District Physical Planning Officer, the school was already in existence even before the letter of allotment letter was issued. The 2nd 3rd 4th and 5th Defendants in the original suit pray that this suit be dismissed with costs and judgment entered for;i.An order for the dismissal of all the claims by the Plaintiffs in the original suit.ii.A declaration that the suit parcel was not available for alienation to the Plaintiffs in the original suit and that the Chief Land Registrar cancels the certificate of lease forthwith.iii.A declaration that the suit property at all material time belonged to the Maji Safi Primary School by virtue of adverse possession.iv.An order that the defendant in the counterclaim do surrender to the Principal Secretary Basic Education the Certificate of Lease in respect of Mombasa/Mainland South/Block V/213. v.Costs of this suit.vi.Any other relief this Honourable court deems fit and just to grant.

6. This Court has considered the evidence and the submissions therein. It is the Plaintiff’s case that they learnt on 5th March, 2010 or thereabouts that the 1st Defendant's predecessor through its servants, agents and/or employees had without the consent of the Plaintiff entered upon the Suit Property on dates unknown to the Plaintiff and unlawfully constructed thereon a School known as Maji Safi Primary School. The Plaintiff avers that the unlawful construction aforesaid amounts to trespass on the Suit Property.

7. Trespass to land is a common law tort that occurs when an individual or the object an individual is controlling negligently or intentionally enters onto another’s property without the legal right or consent to do so. The Plaintiff is required to demonstrate to Court on a balance of probability that he is the registered proprietor of the suit property, the defendants entered onto the suit property and without consent.

8. Section 3 (1) of the Trespass Act, Cap 294 provides that;“Any person who without reasonable excuse enters, is or remains upon or erects any structure on, or cultivates or tills or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an offence.”

9. Clerk & Lindsell on Torts 18th Edition at paragraph 18-01 defines trespass as follows;“Any unjustifiable intrusion by one person upon land in possession of another.” ….Trespass is actionable at the instance of the person in possession and that proof of ownership is prima facie proof of possession”

10. Should the trespass be proved the Halsbury’s Laws of England 4th Edition Volume 45 para 26 1503 provides as follows on computation of damages in an action for trespass;a)If the Plaintiff proves the trespass, he is entitled to recover nominal damages even if he has not suffered any actual lossb)If the trespass has caused the Plaintiff actual damage, he is entitled to receive such amount as will compensate him for his lossc)Where the Defendant has made use of the Plaintiff’s land, the Plaintiff is entitled to receive by way of damages such an amount as would reasonably be paid for that used)Where there is an oppressive, arbitrary or unconstitutional trespass by a Government official or where the Defendant cynically disregards the rights of the Plaintiff in the land with the object of making a gain by his unlawful conduct, damages may be awardede)If the trespass is accompanied by aggravating circumstances which do not allow an award of exemplary damages, general damages may be increased”

11. In the instant case the plaintiff has demonstrated that it is the registered proprietor of Plot No. Mombasa/Mainland South/Block V/213 as demonstrated by a certificate of lease issued on 12th April 1999 and copy of the Letter of Allotment dated 7th March 1997. The Plaintiff testified that he learnt in 2009/2010 that the 1st Defendant's predecessor through its servants, agents and/or employees had without the consent of the Plaintiff entered upon the Suit Property on dates unknown to the Plaintiff and unlawfully constructed thereon a School known as Maji Safi Primary School. The question therefore before this court is whether the Defendants trespassed onto the suit property. PW2 a Valuer produced a valuation report done in 2017 showing the value of the property.

12. DW1 the County Director Physical Planning testified that Maji Safi Primary School was occupying the piece of land MS/V/43 as per the survey plan and the development was approved by the county. That they have wrongly been sued as they did not issue the allotment letters.

13. DW2 the head teacher of Maji Safi School testified that the property was in possession of the Maji Safi Women Group since before the year 1999 and also used for the benefit of the community, thus the name of the school (Maji Safi Primary School) emanated from Maji Safi Women Group. The nursery school was started in 1994 and it is now a fully fledged primary and junior school with a total of 859 pupils. She produced the allotment letter dated 28th October 2002 showing land measuring 0. 18 Hectares was allotted to Maji Safi Primary School. That the land was never available for allocation to any person. They have been in continuous peaceful occupation since 1999. I find that the suit land is public land and was allocated to the school in 2002 even though they had been in occupation since 1994. From the evidence adduced before me, I find that Maji Safi Primary School was initiated by the Maji Safi Women Group and has been surveyed, designed and constructed by the government and continued to be supported by the Teachers Service Commission who have provided the teachers at the school. Article 62(1) of the Constitution defines public land as:(a)land which at the effective date was unalienated government land as defined by an Act of Parliament in force at the effective date;(b)land lawfully held, used or occupied by any State organ, except any such land that is occupied by the State organ as lessee under a private lease;(c)land transferred to the State by way of sale, reversion or surrender;(d)land in respect of which no individual or community ownership can be established by any legal process;(e)land in respect of which no heir can be identified by any legal process;(f)all minerals and mineral oils as defined by law;(g)government forests other than forests to which Article 63 (2)(d)(i) applies, government game reserves, water catchment areas, national parks, government animal sanctuaries, and specially protected areas;(h)all roads and thoroughfares provided for by an Act of Parliament;(i)all rivers, lakes and other water bodies as defined by an Act of Parliament;(j)the territorial sea, the exclusive economic zone and the sea bed;(k)the continental shelf;(l)all land between the high and low water marks;(m)any land not classified as private or community land under this Constitution; and(n)any other land declared to be public land by an Act of Parliament—(i)in force at the effective date; or(ii)enacted after the effective date.Private land on the other hand is defined by Article 64 as consisting of:(a)registered land held by any person under any freehold tenure;(b)land held by any person under leasehold tenure; and(c)any other land declared private land under an Act of Parliament.

14. The Plaintiff produced an allotment letter reference number 31500/XX11 dated 7th March 1997 for Plot No. Mombasa/Mainland South/Block V/213 addressed to Epson Down Limited who later transferred it to the Plaintiff. The letter was signed by S.M Kagwi for the Commissioner of Lands. 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 Plaintiff. I find that the same was not available for private allocation as it was already occupied by a public school and hence is public land. I find that it is public land reserved for the school. The school being a public institution, the land it occupies and utilizes therefore is public utility and was not available for allocation.

15. 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 Epson 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.”

16. The transfer of the suit property to Epson Limited and subsequently to Prosper Projects 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 Plaintiff, 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.”

17. The school being a public institution, the land it occupies and utilizes is therefore public utility and is not available for allocation. The allocation if any is irregular and unlawful. I find that the Plaintiff has failed to prove his case on a balance of probabilities and I dismiss it with costs. I find that the 2nd 3rd, 4th and 5th Defendants have proved their counterclaim on a balance of probabilities and I grant the following orders;1. A declaration that the suit parcel was not available for alienation to the plaintiffs in the original suit and that the Chief Land Registrar cancels the certificate of lease forthwith.2. A declaration that the suit property occupied by Maji Safi Primary School is public land and belongs to the School.3. An order that the defendant in the counterclaim do surrender to the Principal Secretary Basic Education the Certificate of Lease in respect of Mombasa/Mainland South/Block V/213. 4.Costs of this suit to be borne by the Plaintiff.

It is so ordered.

DELIVERED, DATED AND SIGNED AT MOMBASA THIS 19THDAY OF DECEMBER 2024. N.A. MATHEKAJUDGEELC CASE NO. 382 OF 2010 Page 1 of 4