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ELCDismissedFurther Amended Plaint dated 4th December, 2018 (Mombasa ELC suit)

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)

Environment and Land Court
20 June 2025
19,514 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~78 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Environment and Land Court at Mombasa (L.L. Naikuni, J) dismissed the Kenya Ports Authority and its Pension Scheme's Further Amended Plaint of 4th December 2018 challenging the allocation of Plots Mombasa/Block XXIII/227-230, which the plaintiffs alleged were illegally carved from a public access road created on sub-division of Plot MSA/BLK/XXIII/179. The plaintiffs sought declarations that the allocations and transfers were null and void, revocation of the 1st Defendant's titles, rectification of the register, a permanent injunction and general damages for trespass. The court framed five issues. It held that the plots were duly allocated by the Commissioner of Lands and that the allottees who complied with the terms of allotment acquired lawful rights, so the plaintiffs ceased to have rights over the subdivided portions. It found the 1st Defendant, which purchased the plots for Kshs.750,000 each after official searches and site visits, to be a bona fide purchaser for value entitled to protection under sections 24 and 25 of the Land Registration Act. The plaintiffs' fraud allegations failed because fraud must be specifically pleaded and strictly proved; they never produced the surrendered title for Plot 179 and adduced no evidence of irregularity. The court found the alienation procedure traced in Ali Mohamed Dagane was followed. Judgment was entered for the 1st and 2nd Defendants, with costs of the suit payable by the plaintiffs jointly and severally. Judgment was delivered virtually at Mombasa on 20th June 2025.

Questions the Court framed

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

  1. 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. 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. 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. 4.Whether the Plaintiff is entitled to the orders sought in the Plaint
  5. 5.Who bears the costs of the suit

Key legal issues

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01

Whether the suit plots were duly allocated by the Commissioner of Lands

Holding

The plots were duly allocated to the 3rd, 4th and 5th Defendants, who complied with the terms of allotment and became lawful owners

Reasoning

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.

p. 26
02

Whether the 1st Defendant is a bona fide purchaser for value

Holding

Yes - the 1st Defendant bought from vendors holding valid titles, paid consideration, conducted due diligence, and is entitled to protection

Reasoning

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.

p. 29
03

Whether the plaintiffs proved fraud in the allocation

Holding

No - fraud must be specifically pleaded and strictly proved, and the plaintiffs did not discharge the burden

Reasoning

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.

p. 32

Legal principles established

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  • 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

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  1. 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. 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

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

majority

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

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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

p. 32

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

p. 29

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

p. 21

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

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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.
p. 34Final orders - dismissal of suit
That the 1st and 2nd Defendants shall have the costs of the suit to be paid by the 1st & 2nd Plaintiffs jointly and severally.
p. 34Costs order
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.
p. 26Effect of lawful allocation
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.
p. 26Bona fide purchaser doctrine
It is an established principle of law that a claim based on fraud must be specifically pleaded and strictly proved.
p. 30Standard of proof for fraud
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.
Outcome

Issues in the judgment

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minor

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

minor

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

minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.