On the issue of whether the suit property was reserved for use by the KMD, the court examined the survey plans showing that the land had been reserved for use by the Ministry of Information and noted the developments by KMD when it visited the site.
On whether the suit property was unalienated at the time of allocation, the court cited Section 3 of the GLA, Section 3 of the Physical Planning Act and the case of Kipsirgoi Investments Limited v Kenya Anti-Corruption Commission [2013] eKLR and found that once land is set aside for a specific purpose, it is considered alienated and cannot be available for allocation. Additionally, it provided that where there were buildings present on Government land, and the land was to be allocated to another entity, the houses have to be boarded up and disposed of in accordance with the Government Financial Regulations. In this case, the land had already been reserved for use by the KMD. Therefore, the court found that the land was alienated at the time of allocation and therefore not available for allocation.
On whether the 1st Defendant acted within his powers, the Court cited Section 3 and 7 of the GLA which provided that alienation of unalienated Government land required the President’s consent, which was never procured. Therefore, the 1st Defendant acted ultra vires. Further, only unalienated government land was available for allocation under the GLA. In this case, the 1st Defendant allocated land that was already alienated. Based on these findings, the court held that the Defendant did not act within his powers under the GLA.
On whether the suit is an abuse of powers by the Plaintiff, the Defendant had contended that he had committed the acts complained of in his official Capacity as the Commissioner for Lands and was therefore not personally liable. He argued that the Plaintiff was abusing its powers by pursuing litigation against him personally. The court, having already ground that the 1st Defendant had acted in excess of his authority, stated that a Public servant who does something beyond their powers could not claim that they did it in their official capacity. In light of this, the court held that the Plaintiff had not abused its powers by instituting the suit against the 1st Defendant.
On whether the 3rd Defendant acquired indefeasible title, the court referred to Section 23 (1) of the repealed Registered Land Act which provided for the indefeasibility of title. The court however found that sanctity of title under that Section could not be invoked where title is illegally acquired. It cited the case of Fuzi Island Development Limited & 2 others v County Council of Kwale & 2 others where the court held that indefeasible title was only acquired “if and only if the allocation was legal, proper and regular.” In this case, the 3rd Defendants title was irregular as the land was not available for allocation, the 1st Defendant lacked authority to allocate it, the housing structures on the suit property were not boarded up and disposed of as the law required and that the 3rd Defendant breached the payment terms in the letter of allotment. Based on these reasons, the court found that the 3rd Defendant did not acquire absolute and indefeasible title.
On whether the 3rd Defendant was entitled to have the title to the suit property in the Plaintiff’s possession returned to them, the court held in the negative as the title was illegal and headed for cancellation.
In conclusion, the court found that the Plaintiff had proved its case and granted the orders sought.
