Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedPetition dated 10th August 2020 (Environment and Land Court, Nairobi)

Kenya Airports Authority v Chief Land Registrar & 3 others (Environment & Land Petition E005 of 2020) [2024] KEELC 575 (KLR)

Environment and Land Court
8 February 2024
3,746 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court ruled that land reserved for public use belongs to the public and cannot be allocated to private individuals.

What this practically means

#

Executive summary

#
The Kenya Airports Authority (the Petitioner) petitioned the Environment and Land Court in Nairobi seeking declarations that L.R. No. 9042/940, Embakasi (about 0.1902 ha), is public land unavailable for alienation, that the title issued to the 4th Respondent was null and void, cancellation of the allocation and title, a permanent injunction, removal of structures, general damages for trespass and fraud, and costs. The Petitioner traced its interest to a 1994 Vesting Order transferring property of the State Department of Aerodromes, a Part Development Plan and Gazette Notice of 2009 for staff housing at Embakasi Village, and reports of the National Assembly Public Investment Committee finding an illegal excision. The 4th Respondent claimed she was allocated the land as Plot 566 A Embakasi by the Nairobi City Council, relying on a 1989 licence, an allotment letter and a deed plan, and challenged the Petitioner's standing and choice of a petition rather than a plaint. The 1st, 2nd and 3rd Respondents did not respond. The court, O. A. Angote J, found that the suit property formed part of the Petitioner's land and is public land under Article 62(1)(b), that the 4th Respondent did not show the Nairobi City Council had authority to allot it, and that the allotment letter and deed plan were void ab initio. The court granted the declarations, an order for delivery of the grant for cancellation, a permanent injunction, cancellation of the allocation and restoration of the property to the Petitioner, removal of structures within 90 days, and costs against the 4th Respondent. General damages for trespass and fraud were not awarded.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the suit property is public land belonging to the Petitioner and therefore unavailable for alienation or allotment to a private party
  2. 2.Whether the allotment letter and deed plan issued to the 4th Respondent were valid
  3. 3.Whether the Petitioner had locus standi and properly invoked the constitutional jurisdiction of the Court

Key legal issues

#
01

Ownership and classification of the suit property

Holding

The suit property formed part of the Petitioner's land and is public land under Article 62(1)(b)

Reasoning

The Petitioner traced its interest to a 1994 Vesting Order transferring property of the State Department of Aerodromes, a Part Development Plan and Gazette Notice for staff housing. The 4th Respondent produced only a 1989 licence, an allotment letter from the Nairobi City Council and a deed plan, and did not demonstrate that the Council owned the land or that the Petitioner had surrendered it. The court therefore found the property was public land belonging to the Petitioner.

p. 6
02

Validity of the allotment letter and deed plan

Holding

The allotment letter dated 15th June 2007 and the subsequent deed plan are void ab initio

Reasoning

Because the suit property was public land reserved for public purpose, it was not available for allocation. The 4th Respondent failed to show how the Nairobi City Council had authority to allot land proven to belong to the Petitioner, and no witness from the County Government testified to the authenticity of the allotment letter. Following the line of authority in Nelson Kazungu Chai, Lalitchandra Dugarshankar Padya and related cases, the allocation was a nullity.

p. 7
03

Petitioner's standing and mode of suit

Holding

The Petitioner, a State corporation, could maintain the constitutional petition in protection of its property rights under Article 40

Reasoning

The 4th Respondent argued that the Petitioner, being a body corporate, could not sue in a constitutional petition and that Article 40 protects persons against the State. The court did not accept these objections, allowed the petition and granted the declarations, noting the Petitioner had relied on authorities including Anarita Karimi Njeru, Mumo Matemu and Godfrey Paul Okutoyi on the thresholds for constitutional petitions.

p. 4

Legal principles established

#
  • Land lawfully held, used or occupied by a State organ is public land under Article 62(1)(b) and cannot be disposed of except in terms of an Act of Parliament
  • Land reserved for public purposes cannot be allocated to individuals; an allotment of such land is null and void ab initio

Court orders

#
  1. 1.A declaration that Land Reference Number 9042/940 measuring approximately 0.1902 hectares situated in Embakasi Area, Nairobi is public land and not available for alienation and/or allotment to the 4th Respondent or any other party
  2. 2.A declaration that the 1st Respondent's issuance of a title document to the 4th Respondent over the suit property was null and void ab initio and ineffectual to confer any right, interest or title upon the 4th Respondent
  3. 3.An order directed at the 4th Respondent to forthwith deliver the grant in respect of the suit property to the 1st Respondent for cancellation
  4. 4.A permanent injunction against the 4th Respondent, her agents, servants, employees and invitees from trespassing, constructing, selling, disposing of, charging, sub-dividing, dealing, alienating, occupying, managing, letting or otherwise intermeddling with the suit property
  5. 5.An order to the Land Registrar for cancellation of the allocation of the suit property in favour of the 4th Respondent and of the title documents issued to her, so as to restore the suit property to the Petitioner
  6. 6.The structures constructed on the suit property by the 4th Respondent to be removed within 90 days of the judgment
  7. 7.All costs incidental to the above to be borne by the 4th Respondent
  8. 8.The 4th Respondent to pay the costs of the Petition

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 13(1), (2), (3) and (7) of the Environment and Land Court Act; Articles 22(1), 23(1), 40, 62 and 67 of the Constitution; Rules 3, 4(1), 8 and 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

Relief refused

#

General damages for trespass to land and fraud

Not included among the orders granted in the disposition; the court did not award damages

Declaration that land set aside for public use is not available for alienation and/or allotment to private entities (in the general form sought in prayer (a))

The court granted instead the specific declaration relating to the suit property

Costs

All costs incidental to the declarations and orders to be borne by the 4th Respondent, and the 4th Respondent to pay the costs of the Petition

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the circumstances, it is the finding of the court that the allotment letter dated 15th June 2007 and the subsequent deed plan that the 4th Respondent has relied are void ab initio.
p. 7nullity of allocation of public land
Having established that the suit property is public land belonging to the Petitioner and having established that public land reserved for public purpose cannot be allotted to an individual, like in this case, I find that the suit property could not have been allotted to the 4th Respondent.
p. 7public land unavailable for private allocation
A declaration be and is hereby issued that Land Reference Number 9042/940 measuring approximately 0.1902 hectares situated in Embakasi Area, Nairobi (hereinafter the suit property) is public land and not available for alienation and/or allotment to the 4th Respondent or any other party.
p. 8final orders - declaration
The structures constructed on the suit property by the 4th Respondent be removed within 90 days of the judgement of the Court.
p. 2final orders - removal of structures
An order is hereby issued to the Land Registrar for cancellation of the allocation of the suit property in favour of the 4th Respondent and title documents issued to the 4th Respondent so as to restore the suit property to the Petitioner.
p. 8final orders - cancellation and restoration

Issues in the judgment

#
minor

The judgment does not name the parties in a formal caption; the identities of the 2nd and 3rd Respondents are not expressly stated in the reproduced text

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Airports Authority v Chief Land Registrar & 3 others (Environment & Land Petition E005 of 2020) [2024] KEELC 575 (KLR)", Case Analysis (2024). Petition dated 10th August 2020 (Environment and Land Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/575/eng@2024-02-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.