The Plaintiff sought recovery of several parcels of land in Kisumu Municipality/Block 7 from the Defendants on the grounds that the suit parcels rightly fully belonged to the Kenya Railways Corporation and were illegally acquired by some of the Defendants upon the issuance of Leases or allotments by the 3rd, 16th and 27th Defendants. Some of the Defendants subsequently transferred the parcels they acquired to other Defendants.
The land was vested in the East African Railways and Harbours Administration; the East African Railways Corporation and subsequently the Kenya Railways Corporation following the collapse of East Africa Community. The Registry Index Map for Kisumu Block 7 and the survey plan for Kisumu Township prepared on 24th August 1935 indicated that the land was the railway reserve and belonged to the Corporation.
The Plaintiff sought in the consolidated suit declarations that; the issuance of Leases by the 3rd Defendant to the 1st Defendant over Kisumu Municipality Block 7/410; to the 8th – 12th Defendants over Kisumu Municipality Block 7/465; to the 19th Defendant over Kisumu Municipality Block 7/524; to the 20th Defendant over Kisumu Municipality Block 7/529 and to the 28th Defendant over Kisumu Municipality Block 7/511 was null and void ab initio and ineffectual to confer any right, interest or title upon the 1st, 8-12th, 19th, 20th and 28th Defendants respectively in the first instance.
Consequently, the subsequent transfers of leases issued in respect of the suit properties and issuance of Certificates of Lease over Kisumu Municipality Block 7/410 to the 2nd Defendant over, Kisumu Municipality Block 7/465 to the 13th Defendant and thereafter to the 14th Defendant; and Kisumu Municipality Block 7/524 to the 17th and 18th Defendants was null and void ab initio and ineffectual to confer any right, interest or title upon the 2nd, 13th, 14th, 17th and 18th Defendants.
The Plaintiff also sought declarations that the issuance of an allotment by the 3rd Defendant to the 4th and 5th Defendants over Kisumu Municipality Block 7/467 was null and void ab initio and ineffectual to confer any right interest or title upon the 4th and 5th Defendants in the first instance. Consequently, the subsequent transfer to the 2nd Defendant and charge to the 7th Defendant null and void and ineffectual to confer any valid right, interest or title.
A declaration that the issuance of leases by the 16th Defendant to the 15th Defendant over Kisumu Municipality Block 7/478; to the 22nd Defendant over Kisumu Municipality Block 7/514; and to the 23rd Defendant over Kisumu Municipality Block 7/498 was null and void ab initio and ineffectual to confer any right, interest or title upon the 15th, 22nd and 23rd Defendants in the first instance.
A declaration that the issuance of leases by the 27th Defendant to the 26th Defendant over Kisumu Municipality Block 7/539 was null and void ab initio and ineffectual to confer any right, interest or title upon the 26th Defendant in the first instance.
Subsequently the Plaintiff sought orders for rectification of the land register by cancellation of the leases over parcels Kisumu Municipality Block 7/410, 467, 465, 478, 524, 529, 514, 498, 539, and 511 and Certificates of Lease issued to the 2nd, 14th, 15th, 17th, 18th, 21st, 22nd, 23rd, 26th and 28th Defendants respectively as to restore the suit properties to the Kenya Railways Corporation.
The Defendants contended that the entire process of alienating, allocating and registration of Kisumu Municipality Block 7/410, 465, 539 and 511 was procedural, regular and lawful as per the annexed letters of allotment, official receipts of payment, letters from the Commissioner of Lands and Certificates of Lease. That the alienation process went through the proper steps leading to approval of the alienation by cabinet and accepting the delegation of the powers of the President to the Commissioner of Lands under Section 7 of the Government Lands Act.
That there was no resolution of cabinet or instructions from the board of the Corporation to the Plaintiff to institute a suit against the Defendants. That therefore the suit was an abuse of the court process. Defendants denied the particulars of fraud and stated that the suit was incurably defective in view of the provisions of the Limitation of Actions Act, and was an abuse of the process of the court in view of Section 7 and 136 (2) of the Government Lands Act.
