Kasarani Mall Limited & another v Principal Secretary Ministry of Defence & 4 others; The National Land Commission & another (Interested Parties) (Environment & Land Case E010 of 2022) [2025] KEELC 4075 (KLR)
The bottom line
#The court cancelled a Kasarani land title, ruling land compulsorily acquired for the military cannot be reallocated, and even innocent buyers and banks get no protection.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the allotment of the suit property and by extension the issuance of the letter of allotment to the 3rd Defendant was lawful and valid
- 2.Whether the 3rd Defendant acquired and accrued lawful rights and interests over the suit property
- 3.Whether the 1st Plaintiff's certificate of title over the suit property is lawful and valid and whether the 1st Plaintiff acquired lawful rights to the suit property
- 4.Whether the 5th Defendant's Counterclaim is legally tenable
- 5.Whether the charge over and in respect to the suit property is valid
- 6.What reliefs (if at all) ought to be granted
Key legal issues
#Validity of the allotment and letter of allotment to the 3rd Defendant
The allotment was a nullity ab initio: the land was compulsorily acquired for the military and stood alienated for a designated purpose; the letter of allotment issued to a non-existent company, on a Saturday, without a PDP, and despite the Commissioner's earlier notation that the land was army land
The court traced the compulsory acquisition, gazettement, award and notice of taking of possession under Section 19 of the Land Acquisition Act, holding the land alienated by acquisition for a designated purpose. Reliance on Kiluwa, Torino, Frann Investment, Awendo and Belgo Holdings established that such land is not unalienated government land and cannot be reallocated to a private entity. The letter of allotment to the unincorporated 3rd Defendant, issued on a non-working day and without a PDP, was a nullity and a mere paper transaction.
Whether the 3rd Defendant acquired lawful rights
No; the title issued out of an illegitimate allotment is itself illegal under ex nihilo nihil fit and the principle in Macfoy v United Africa Co.
Following Dina Management, Munyu Maina and Benja Properties, the court held a title is an end product of a lawful process; indefeasibility cannot sanction illegality. Since the allotment attached to no land and issued to no legal person, the resultant certificate of title was a nullity which conveyed nothing to the 3rd Defendant.
Validity of the 1st Plaintiff's certificate of title and bona fide purchaser plea
The 1st Plaintiff acquired no valid title; nemo dat quod non habet applies and the bona fide purchaser defence fails against an illegality in the root title
Applying Samuel Kamere, Sehmi v Tarabana and Said v Shume, the court held a purchaser must show a valid predecessor title, due diligence beyond an official search, and valuable consideration. Because the 3rd Defendant's title was vitiated at the root, nothing passed to the 1st Plaintiff, whose own due diligence did not extend to the history of the title despite the registered notice of taking possession.
The surrender contention
Rejected: surrender was not pleaded, and no instrument of surrender was produced or registered as Section 44 of the Registration of Titles Act requires
The plea of surrender emerged only through PW2's evidence, contravening the doctrine of departure (Order 2 Rule 6). Even substantively, no Deed or instrument of surrender was tendered, the resolutions and Tilitei letter were never produced, and PW2 admitted the surrender was never registered, depriving the evidence of probative value.
The 5th Defendant's counterclaim
Dismissed: no certificate of title, no full payment of the purchase price, and no written sale agreement to sustain specific performance
The 5th Defendant admitted holding no title and paying only a 10% stakeholder sum, defeating the bona fide purchaser claim. Specific performance requires a valid, written and enforceable contract under Section 3(3) of the Law of Contract Act and readiness to perform, none of which was established.
Validity of the charge in favour of the 2nd Interested Party
The memorandum of charge is illegal, invalid and void because the deposited title was itself a nullity
Following Macfoy and Teleposta Pension Scheme, the court held that a void title cannot sustain a security interest; the bank's remedy lies against the borrower, not over the suit property.
Legal principles established
#- Land compulsorily acquired for a designated public purpose stands alienated and cannot be treated as unalienated government land available for allocation, and must be used only for the purpose of acquisition
- A letter of allotment can only issue to an existing legal entity and must attach to a specific parcel of land; allotment to a non-existent company or of a non-existent parcel is a nullity
- A party cannot rely on evidence of a claim (here, surrender) not pleaded; such evidence goes to no issue
- Surrender of title must comply with Section 44 of the Registration of Titles Act, including execution, endorsement and registration
- No valid title can be passed by a holder of no title (nemo dat quod non habet), and the bona fide purchaser doctrine does not protect a purchaser of an illegally allocated title
- A charge founded on an illegal and invalid certificate of title is itself illegal, invalid and void
Court orders
#- 1.The Plaintiffs' suit be and is hereby Dismissed
- 2.Costs of the suit awarded to the 1st Defendant and the 2nd Interested Party only
- 3.The 2nd and 4th Defendants, being complicit in the issuance of the impugned certificate of title, are not entitled to any costs
- 4.The 5th Defendant, not pleaded by the Plaintiffs and having sought joinder to espouse a counterclaim, is not entitled to costs
- 5.The Counterclaim by the 5th Defendant be and is hereby dismissed
- 6.Costs of the Counterclaim awarded to the Plaintiffs (Defendants to the counterclaim) only
- 7.By virtue of Section 13[7] of the Environment and Land Court Act, 2011, the Certificate of title in respect of L.R No. 5875/2 is cancelled
- 8.The Plaintiffs and the 2nd Interested Party ordered to surrender and submit the Certificate of title for cancellation/nullification within 60 days
- 9.The charge vide Memorandum of Charge held by the 2nd Interested Party over L.R No. 5875/2 is cancelled and/or nullified
- 10.Any other reliefs not expressly granted are declined
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 13 of the Environment and Land Court Act, 2011 (including Section 13[7] invoked in cancelling the title)
Relief refused
#Permanent injunction restraining the 1st to 4th Defendants from the suit property
The land was lawfully acquired for the Department of Defence and no injunction can issue against the registered/knowing owner; the Plaintiffs hold no title
Declaration that the trespass/occupation by the Kenya Defence Forces is illegal
The land was lawfully compulsorily acquired for the Department of Defence which took possession; trespass requires title to or right to possession
Declaration that the Plaintiffs are the owners of L.R 5875/2
The 1st Plaintiff acquired no valid title, its predecessor's title having been a nullity
Alternative order of monetary compensation based on valuation by a court-appointed valuer
The claim was neither pleaded nor particularized, no valuation report was produced, and the court cannot call a valuer in an adversarial system
5th Defendant's counterclaim for declaration as bona fide purchaser and specific performance
The 5th Defendant holds no certificate of title, paid only 10% of the price, and no written sale agreement existed; specific performance requires a valid written contract
Costs
Costs of the suit awarded to the 1st Defendant and the 2nd Interested Party only; the 2nd and 4th Defendants denied costs for complicity in the impugned title; the 5th Defendant denied costs; costs of the counterclaim awarded to the Plaintiffs.
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.
The Plaintifis' suit be and is hereby Dismissed.
For the avoidance of doubt and taking into account the provisions of Section 13[7] of the Environment and Land Court Act, 2011, the Certificate of title in respect of L.R No. 5875/2 [the suit property] be and is hereby cancelled.
The charge vide Memorandum of Charge held by the 2nd Interested party over the suit property, namely, L.R No. 5875/2 be and is hereby cancelled and/or nullified.
where land is compulsorily acquired for a specific public purpose, in this case for military use, the land in question cannot be categorized as unalienated land.
Absent Part Development Plan [PDP] no lawful allocation of any public land can be undertaken.
You cannot put something on nothing and expect it to stay there. It will collapse.
From the Council to the appellant and from the appellant to White Horse no title could be passed because ex nihilo nihil fit – out of nothing comes nothing.
if the title in question is illegal or obtained through unlawful means, the purchaser cannot claim protection even if he was not aware of the illegality.
where no amendment is sought for and obtained, any evidence that is at variance with the pleadings goes towards no issue and same must therefore be disregarded.
the memorandum of charge by way of deposit of title of the suit property is illegal, invalid and void.
Issues in the judgment
#The judgment is internally contradictory on when the 3rd Defendant's certificate of title/Grant was issued relative to its incorporation
The judgment elsewhere records the Grant as registered on 24th January 2001, after incorporation, conflicting with PW1's testimony of 1st July 1999
The salient issues list omits an issue numbered four before proceeding to 'the fifth issue' on the charge, creating a numbering inconsistency
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kasarani Mall Limited & another v Principal Secretary Ministry of Defence & 4 others; The National Land Commission & another (Interested Parties) (Environment & Land Case E010 of 2022) [2025] KEELC 4075 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4075/eng@2025-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.