Kenya Ports Authority & another (Suing Through its Registered Trustees) v Akaba Investments Ltd. & 8 others (Environment & Land Case 282 of 2018) [2025] KEELC 4632 (KLR)
The bottom line
#Kenya's Environment and Land Court in Mombasa dismissed KPA and its pension scheme's challenge to four Mombasa plots, ruling the buyer a protected bona fide purchaser.
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 Plots No. Mombasa/BlockXXIII/227, 228, 229 and 230 were duly allocated to the 3rd, 4th and 5th Defendants by the Commissioner of Lands
- 2.Whether the 1st Defendant is a bona fide purchaser for value of the suit property from the 3rd, 4th and 5th Defendants and if so whether the 1st Defendant acquired lawful rights and interests thereto
- 3.Whether the Plaintiffs have established and/or proved the allegations of fraud as against the Defendants in terms of the allocation of the suit property
- 4.Whether the Plaintiff is entitled to the orders sought in the Plaint
- 5.Who bears the costs of the suit
Key legal issues
#Whether the suit plots were duly allocated by the Commissioner of Lands
The plots were duly allocated to the 3rd, 4th and 5th Defendants, who complied with the terms of allotment and became lawful owners
The court traced the acquisition and registration of land under sections 7, 24, 25 and 26 of the Land Registration Act and section 7 of the Land Act. Evidence including the Letters of Allotment and the survey by DW-2 showed the parcels were created by a new Grant survey plan FR No. 390/52, allotted by the Commissioner of Lands, and transferred to the allottees. Upon allocation, the plaintiffs ceased to have rights over the subdivided portions.
Whether the 1st Defendant is a bona fide purchaser for value
Yes - the 1st Defendant bought from vendors holding valid titles, paid consideration, conducted due diligence, and is entitled to protection
The court applied Arthi Highway Developers, Samuel Kamere and Dina Management on the ingredients of bona fide purchase. The 1st Defendant paid Kshs.750,000 per plot, conducted official searches, received Letters of Allotment, visited the site, and the Land Registrar sanctioned the transfers and issued certificates of lease. The court found the vendors held valid titles and the purchaser had no notice of any defect.
Whether the plaintiffs proved fraud in the allocation
No - fraud must be specifically pleaded and strictly proved, and the plaintiffs did not discharge the burden
Relying on Vijay Morjaria, Kuria Kiarie and Kinyanjui Kamau, the court held that allegations of fraud must be distinctly alleged and distinctly proved to a standard higher than a balance of probabilities. The plaintiffs did not produce the surrendered title for Plot 179, no evidence showed absence of a PDP or gazettement, and the procedure for alienation of government land as set out in Ali Mohamed Dagane was found to have been followed.
Legal principles established
#- A claim in fraud must be specifically pleaded and strictly proved to a standard above a balance of probabilities
- Where ownership of a title is challenged, the proprietor must trace the root of the title from first allotment
- An allottee who duly complies with the terms of allotment acquires lawful rights to the allocated land
- A bona fide purchaser for value is entitled to protection of the courts under sections 24 and 25 of the Land Registration Act
Court orders
#- 1.Judgment entered against the Plaintiffs and in favour of the 1st and 2nd Defendants pursuant to their Statements of Defence, which sought dismissal of the Plaintiffs' case
- 2.The 1st and 2nd Defendants shall have the costs of the suit to be paid by the 1st & 2nd Plaintiffs jointly and severally
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution of Kenya, 2010 (suit concerning land)
Relief refused
#Declaration that the Commissioner for Lands acted unlawfully and ultra vires in allocating Plots Mombasa/Block XXIII/227, 228, 229 and 230
Plaintiffs failed to prove fraud and failed to show the land was not available for allocation; the allocation procedure was found to have been followed
Order that the transfers to the 1st Defendant be nullified and its titles revoked
1st Defendant found to be a bona fide purchaser for value from vendors holding valid titles
Permanent injunction against the 1st and 2nd Defendants from developing the suit plots
Plaintiffs failed to prove their claim; no nexus between the 2nd Defendant and the developments was shown
Rectification of the land registers and general damages for trespass
Plaintiffs not entitled to the prayers sought as they failed to prove the claim on a balance of probabilities
Costs
The 1st and 2nd Defendants shall have the costs of the suit to be paid by the 1st & 2nd Plaintiffs jointly and severally
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.
That Judgment be and is hereby entered against the Plaintiffs and in favour of the 1st and 2nd Defendants pursuant to the Statement of Defence by the 1st Defendant dated 5th February, 2019 and the 2nd Defendant's Statement of Defence dated 29th January, 2019 which sought for the dismissal of the 1st & 2nd Plaintiffs' case with costs.
That the 1st and 2nd Defendants shall have the costs of the suit to be paid by the 1st & 2nd Plaintiffs jointly and severally.
The moment the mother land was sub - divided and the Commissioner of Lands allotted the same to the 3rd, 4th and 5th Defendants, the Plaintiffs ceased to have any rights on the suit properties.
Simply put, the 1st Defendant herein fits within the parameters of a bona fide purchaser for value and thus same is entitled to the requisite protection under the law.
It is an established principle of law that a claim based on fraud must be specifically pleaded and strictly proved.
this court find that Plaintiffs have largely failed to prove their claim on a balance of probabilities. Therefore the Plaintiffs are not entitled to the prayers sought.
Issues in the judgment
#Witness identification inconsistencies: PW-1 named Stephen Khandi/Kyandih, PW-2 named Padwick Maratani but also described as Patrick Maratani and as 'Chairman', and the 1st Defendant's director named Abdul Bisit Swaleh/Abdulbasit Muhsin/Abdulbasit Swaleh; survey witness Mwanyungu is referred to variously as DW-2 and DW-3
Judgment inconsistently refers to the suit parcels throughout; the 1st Defendant's submissions date the purchase as 2022 while DW-1 testified they purchased in 2001
Court frames issues against 'the 3rd, 4th and 5th Defendants' only, omitting the 6th Defendant although Plots 227-230 were allocated to the 3rd-6th Defendants
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Ports Authority & another (Suing Through its Registered Trustees) v Akaba Investments Ltd. & 8 others (Environment & Land Case 282 of 2018) [2025] KEELC 4632 (KLR)", Case Analysis (2025). Further Amended Plaint dated 4th December, 2018 (Mombasa ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4632/eng@2025-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.