Elizabeth Wambui Githinji & 29 others v Kenya Urban Roads Authority & 4 others [2019] eKLR

IN THE COURT OF APPEAL

AT NAIROBI
(CORAM: OUKO (P), SICHALE & ODEK, JJA)
CIVIL APPEAL NO. 156 OF 2013
BETWEEN
ELIZABETH WAMBUI GITHINJI.............................1 ST APPELLANT
KEVIN KARIUKI.........................................................2 ND
APPELLANT
JOHN MWANGI...........................................................3 RD
APPELLANT
JONATHAN QUAIL.....................................................4 TH
APPELLANT
JANE WAIKENDA.......................................................5 TH
APPELLANT
GERALD
MUIGAI........................................................6 THAPPELLANT
DAVID THIGE...............................................................7 TH
APPELLANT
AUGUSTINE AGHAULOR.........................................8 TH APPELLANT
SUSAN WANGECHI KANYORA...............................9 TH APPELLANT
JAMES GACHARIA KIRURI...................................10 TH APPELLANT
IBRAHIM THIAW.......................................................11 TH
APPELLANT
ANN NJERI NDUMU..................................................12 TH
APPELLANT
MICHAEL NDONG’O KANYOGO..........................13 TH APPELLANT
IAN FERNANDES.......................................................14 TH
APPELLANT

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FRANCIS KIARIE.......................................................15 TH
APPELLANT
MICROLAND INVESTMENTS LIMITED..............16TH APPELLANT
SAMUEL OMARI........................................................17 TH
APPELLANT
DO IT QUALITY MANAGEMENT LIMITED........18TH APPELLANT
ASAKA NYANGARA...................................................19 TH
APPELLANT
RAEL LUMBASI..........................................................20 TH
APPELLANT
DAVID MUSILA............................................................21 ST
APPELLANT
RAJESH JOSHI............................................................22 ND
APPELLANT
ATIF DARR...................................................................23 RD
APPELLANT
LEONARD ANGAINE.................................................24 TH
APPELLANT
THOMAS NJUGUNA...................................................25 TH
APPELLANT
PILLAMART PROPERTIES LIMITED....................26TH APPELLANT
PATRICK NDIRANGU KIMEMIA.............................27 TH APPELLANT
PETER NJENGA MUHIKA.........................................28 TH
APPELLANT
TEXCAL HOUSE SERVICE STATION LIMITED...29TH APPELLANT
AND
KENYA URBAN ROADS AUTHORITY....................1ST RESPONDENT
THE MINISTRY OF ROADS......................................2 ND
RESPONDENT
THE MINISTRY OF LANDS......................................3 RD
RESPONDENT

KENYA NATIONAL HIGHWAY AUTHORITY......4TH RESPONDENT

THE ATTORNEY GENERAL....................................5 TH RESPONDENT
CONSOLIDATED WITH
CIVIL APPEAL NO. 160 OF 2013
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BETWEEN
CYCAD PROPERTIES
LIMITED........................................APPELLANT
AND
THE HON. ATTORNEY GENERAL...........................1 ST RESPONDENT
THE MINISTER, MINISTRY OF ROADS.................2ND RESPONDENT
THE MINISTER, MINISTRY OF LANDS..................3RD RESPONDENT
THE NATIONAL HIGHWAY AUTHORITY..............4TH RESPONDENT
KENYA URBAN ROADS AUTHORITY......................5TH RESPONDENT
(Being an appeal from the judgment and decree of the High Court
of Kenya at Nairobi (Mumbi Ngugi J.) dated 25th April 2013
in
Nairobi Petition No. 69 and 70 of 2010)
*******************************
JUDGMENT OF OUKO, (P)
Just as the sanctity of a person’s property in the English common law was
recognised in the famous dictum that "an Englishman’s home (or
occasionally, house) is his castle and fortress”, the Constitution and
land laws in Kenya protect, as fundamental the right to acquire and own
property of any description; and in any part of Kenya. This sanctity was so
important in the days of old that one Right Honourable, William Pitt, 1st
Earl of Chatham graphically explained it thus;

“The poorest man may in his cottage bid defiance to

all the forces of the Crown. It may be frail - its roof may
shake - the wind may blow through it - the storm may
enter - the rain may enter - but the King of England
cannot enter.”
In Kenya the attachment to land is passionate, emotional and almost
fanatical. Nations, neighbours, siblings, spouses and even strangers fight
over land. In some instances, the disputes degenerate into bloodshed and
death. This Court in Gitamaiyu Trading Company Ltd v Nyakinyua
Mugumo Kiambaa Co. Ltd & 11 others Civil Appeal No. 84 of 2013,
explained why land is such an important asset thus;
“Land, no doubt, is not only the most important factor
of production but also a very emotive issue in Kenya.
Land remains the most notable source of frequent
conflicts between persons and communities.”

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It is for this reason that most constitutions guarantee the right to

property. Nuisance and trespass laws give every property owner the right
to use and enjoy his or her property reasonably, without unreasonable
interference by others. Not even the Government can interfere with that
right and the Bill of Rights guarantees that protection. It is in the context
of this protection of the land owner by the law that the contest in this
appeal should be understood.
The following are the events leading to the filing of the petition by the
appellants in the High Court, the decision from which has given rise to this
appeal.

In 2010, the homes of the appellants in Runda Mimosa Estate, Nairobi

were earmarked for demolition by the Government to the extent specified
in metres by the inscription on their fences on allegations that they were
built on a road reserve. Alarmed by this, the 29 appellants in Civil Appeal
No. 69 of 2010 and the sole appellant in Civil Appeal No. 70 of 2010
(Cycad) petitioned the High Court invoking Article 40 of the Constitution
and section 27 of the Registered Land Act (now repealed) for protection.
In their combined effect both petitions asked the court to declare that;
i. ..... the Petitioners’ rights, individually or in
association with others, to acquire and own property
without arbitrarily being deprived of the same as
guaranteed by Article 40 of the Constitution have been
and will be contravened if the intended unlawful and
illegal demolition is effected
ii. … the decision by the 2 nd, 4th and 5th Respondents to
illegally and arbitrarily acquire the Petitioners’
property is null, void to the extent that it violates the
fundamental rights and freedoms of the Petitioners as
envisaged under Article 40 of the Constitution.
iii. … the intended action of the Ministry of Roads,
whether pursuant to any plans, contravenes the
express records at the Ministry of Lands and that the
valid documents are those at the Ministry of Lands.
iv. … the Ministry of Lands being the legal and sole
repository of land records in Kenya, the Petitioners
were not under any duty to check the records or plans
of any other Ministry in respect of land.
v. … pursuant to an interpretation of Article 20 of the
Constitution, if there is any conflict between two
government ministries, the court shall adopt the
interpretation that favours the enforcement or
protection of a right or fundamental freedom.
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vi. … in the alternative, the Ministry of Lands shall

make prompt payment in full of just compensation to
the petitioners pursuant to the express provision of
Article 40 of the Constitution.
.…”
The two petitions were consolidated and heard together. It has been the
appellants’ case that they purchased their respective parcels from the
vendors, Runda Coffee Estate Limited who had themselves purchased
them from the original owners, Edith Gladys Cockburn, Estav Limited
and Mimosa Plantations Limited on diverse dates; that they only
purchased the properties after conducting due diligence and being
satisfied that they belonged to those in whose names they were registered
as proprietors; and that thereafter they have invested heavily in
developing the properties. For instance, Cycad swore that it has invested
in excess of Kshs. 600,000,000.00 in the construction of 19 residential
houses, ancillary facilities and a perimeter wall; and that it has sold some
of the houses to third parties under long term leases for the unexpired
terms of its lease. The other appellants estimate to have expended in
excess of Kshs. 35,000,000 also in putting up their respective homes. The
appellants also deposed that they sought and obtained all the approvals
required by the National Environment Management Authority
(NEMA) and the then City Council of Nairobi before embarking on
developing the properties; that if part of the appellants’ properties were
compulsorily acquired, the acquisition process was incomplete and the
fact of acquisition was not reflected in the register at the

Lands Office; that they had not been notified of the intention by the
Government to compulsorily acquire their property in accordance with
Article 40(3) of the Constitution; and that the intended demolition would
violate Articles 40 and 64 of the Constitution and section 27 of the
Registered Land Act.
The respondents for their part justified the intended demolition of the
appellants’ properties on the ground that they encroached by 20 metres
on the road reserve being part of the land the Government had acquired in
the 1970s through compulsory acquisition under the repealed Land
Acquisition Act, 1968; that this was necessitated by the need to solve the
perennial problem of vehicular traffic around the city of Nairobi; that the
appellants cannot seek to hold the Government liable they when had been
misled by the surveyors they themselves had privately hired; that the
specific portions of the appellants’ properties that encroach on the road
reserve were illegally annexed and therefore not protected by Article
40(1) of the Constitution; that the survey plans, including one done in
1978 were clear that the width of the road was 80 metres, a fact that was
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in the public domain, which the appellants or their surveyors, through due
diligence could have ascertained; that the sums that the public stood to
lose in the contract in the event the proposed construction is stalled was
far much more than what the appellants’ have invested in their properties.

Parties called evidence. The appellants demonstrated that they hold titles
or leases issued by the Government and that these titles have neither
been cancelled nor revoked; they relied on the records at the Director of
Surveys and the Commissioner of Lands which they contended showed
that the approved road reserve along the suit properties is 60 metres
which information was obtained at the time of purchasing the suit
properties; that they were not the owners of the mother titles at the time
of the alleged acquisition; that they did not conduct or commission the
impugned subdivision surveys on L.R. No. 7785/9 that placed the beacons
“N21” at a point where the road reserve was 60 metres; that they were
bona fide purchasers for value, and their titles could only be impugned if
fraud, to which they were parties, was proved; and that as there was no
valid acquisition of the land in question in 1970 due to failure on the part
of the Government to follow the provisions of the Land Acquisition Act, the
respondents could not now claim that the appellants had encroached on
20 metres of the road reserve.
The respondents for their part gave evidence to the effect that the subject
property was part of Government land duly acquired through the process
of compulsory acquisition, way back in the 1970s; that upon identification
of the proposed road reserve, consultants were engaged to prepare
detailed Land Acquisition Plan Sheets which served to accurately
determine the size and dimensions of the land necessary for acquisition
for purposes of road reserves; that the Commissioner of Lands caused
notices to be issued to the persons interested in the lands earmarked for
acquisition; that the Notice was published on 20 th November, 1970 in the
Kenya Gazette vide Gazette Notice No. 3439 covering inter alia, 6.420
acres from L.R. No. 23 then owned by Edith Gladys Cockburn, 16.061
acres from L.R. No. 7785/9 then owned by Estav Limited and 27.984
acres from L.R. No. 7785/10 then owned by Runda Coffee Estate
Limited; that the Government subsequently published a Notice of Inquiry
on 20th November, 1970 and thereafter made compensation payments to
the owners of the land acquired; that as a result, the acquired portions of
the respective titles reverted back to the Government; that all the Survey
Plans presented by the appellants do not reflect a true and accurate
position on the ground as the drafters thereof drew up the plans well after
the Government acquisition but deliberately omitted to reflect the total
area acquired by the Government in 1970; that the appellants, were
victims of their own private surveyors impropriety for failing to reflect the
total area covered by the Northern Bypass and of the vendors, Mimosa
Plantations Limited, from whom they purchased the properties; that the
compulsory acquisition was finalised in compliance with the law and a
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survey plan number F/R 141/14 showing the width of the road as 80
metres.

At the end of the hearing and submissions, the court moved to the locus
in quo in order to form its own impression on the matters in controversy.
In the meantime, it directed the Director of Surveys “to assist the court
with the issues in dispute”. According to Reuben Mwenda Murugu,
a Senior Assistant Director of Survey in the Ministry of Lands, he carried
out the survey in accordance with the directions of the Permanent
Secretary, Ministry of Roads who sought of him to clarify “whether the
road in dispute is 60 metres or 80 metres”. In his report after visiting
the locus Murugu stated that L.R. No. 7785/9 neighbours L.R No. 7785/10
to the East and L.R. 12672 (original No. L.R 23) to the West; that in L.R.
7785/10, a provision of 80 metres road reserve for the Northern Bypass
was made as shown in Plan Nos. 131/10, 131/14, 131/17 and 131/69 which
are dated 1976 and 1979, respectively; that with respect to L.R. No.
7785/9 and L.R No. 12672 a provision of 60 metres was made by Mr.
Wabaru in 1990 and 1993 respectively; and that on the ground, as the
road enters L.R 7785/9 from L.R 7785/10, it narrows; that the road cannot
have two different widths; and that from his assessment the width of the
road at the point of the dispute should have been 80 metres.

The trial court granted leave to the appellants to have the report
subjected to further consideration by their own surveyor, and
subsequently for both surveyors’ evidence to be subjected to cross-
examination.
Pursuant to this, the appellants presented their position through John
Dominic Obel, a licensed surveyor. According to Mr. Obel, the properties
in question L.R. No. 7785/9 and L.R No. 12672 do not encroach on any
road reserve as the road width was surveyed as 60 and not 80 metres;
that the survey plans confirming this were checked, approved and
authenticated by the Director of Surveys as required by the Survey Act
and form part of current official survey records of which the Director of
Surveys is the sole custodian. As the custodian, the Director was required
to have checked and confirmed the correctness of the beacons; that he
would have rejected the survey and subdivision plans if the width of the
road approved had been 80 metres instead of 60 metres.

Mr. Obel confirmed that in carrying out a survey, a surveyor prepares

the plan using survey control points, which are existing beacons. He
conceded that in the case of 7785/9, the nearest survey plan existing from
which point he would use beacons was the survey plan for L.R 7785/10.

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The learned Judge identified the following single question for

determination. She said;
“..... the matters before me being petitions alleging
violation of the petitioners' constitutional rights, I
believe that they call for determination of one main
issue: Does the claim by the respondents that the
Northern Bypass is 80 metres, and therefore their
intended demolition of the petitioners’ properties
which allegedly encroach on 20 metres of the road
reserve, amount to a violation of the petitioners’ rights
under Article 40 of the Constitution”"
Before answering that question, the Judge determined whether the
appellants could challenge the Government’s compulsory acquisition of
land which took place in the 1970s, the contest being whether the
Government followed and completed the due process of land acquisition
as required under the Constitution and the repealed Land Acquisition Act
and whether or not the appellants’ claims were statute-barred.

The Judge found no merit in the argument that the acquisition process
was flawed and incomplete because, in her opinion, her role was limited to
determining whether the impugned actions of the respondents in seeking
to recover 20 metres of the road reserve from the appellants’ properties
violated their rights to property. To her, it was a misplaced submission to
ask her to go into the history of the acquisition and inquire into a process
undertaken many years ago; that, that question ought to have been raised
and determined within the time frame specified in the Land Acquisition
Act, and only by the parties from whom the land was acquired, who were
infact not the appellants; that the appellants not being parties to the
compulsory acquisition, were barred by the doctrine of privity of contract
and as such, could not question the process of acquisition; and that, in any
case the respondents had proved through Gazette Notices Nos. 3439 and
3440 of 1970 that the Government complied with the statutory
requirements as to publishing the intention to acquire the land, holding of
an inquiry and making of an award. Secondly, the learned Judge found the
challenge by the appellants to compulsory acquisition self serving, and
wondered why the appellants considered that only the process to acquire
the 80 meters for the road reserve was void for incompleteness of the
process and not the acquisition of the 60 meters, yet this was one
transaction.
On the appellants’ contention that they had no notice of the compulsory
acquisition, the Judge posed the question whether, with the exercise of
due diligence, it was possible to establish the extent of the road reserve
for the Northern Bypass. In her view the appellants had themselves to
blame for failure to take reasonable steps to establish the status of the
suit property before committing themselves. Upon finding that the
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evidence presented by the appellants regarding the survey maps in

respect of the subject property was contradictory, the learned Judge came
to the conclusion that the vendors from whom the appellants bought their
parcels as well as the surveyors who they had engaged, deliberately
encroached upon the road reserve, because L.R. 7785/10 which adjoins
L.R. 7785/9 has not encroached on the road reserve, and that the road
reserve at that property (L.R. 7785/10) is 80 metres; that the survey plan
number F/R 141/14 dated 4th April 1978 shows that the road reserve is 80
metres; that L.R. 7785/9 and L.R. 12672 are the only parcels where the
road reserve is 60 metres; that from the survey maps and the oral
evidence by Mr. Murugu and Mr. Obel, the key witnesses of the parties, the
titles which were registered under the Registration of Titles Act had fixed
boundaries which could easily be scientifically established by use of
coordinates; that in carrying out a survey, a surveyor prepares the plan
using survey control points, which are existing beacons; and that in the
case of L.R. 7785/9, the nearest beacon was L.R 7785/10 with a road
reserve of 80 metres.

Being persuaded, from the foregoing that there was no proof of violation
of the appellants’ right to property, the learned Judge ultimately concluded
that;
“96. Clearly, the owners of the mother titles to the
petitioners’ properties, the vendors on whose behalf
the surveyors subdivided the mother titles, were aware
of, or should have been aware of, the fact that the road
reserve was intended to be 80 metres. In the
circumstances, it is difficult to accept the contention by
the petitioners that the failure by the respondents to
complete the land acquisition by having a final survey
plan prepared meant that there was no information
available that the Government had acquired an 80
metre road reserve from the subject parcels. I take the
view that, with the exercise of due diligence, the
surveyors who carried out the subdivisions out of which
the petitioners’ properties were created could, with
due diligence, have established the correct width of the
road as 80 metres…

102. The burden on the petitioners in a matter such as

this is to demonstrate a violation of their constitutional
rights. See Anarita Karimi Njeru V. R (1976-80) 1 KLR
1272 and Trusted Society of Human Rights Alliance-v-
Attorney General & Others High Court Petition No. 229
of 2012. To do this, they would have to show

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entitlement to the 20 metres road reserve, and this, in

my view, they have not been able to do........
104. It is true that the petitioners have a right to
own property, and they are entitled to their properties
to the extent that such properties have not encroached
upon land that was acquired and set aside for a public
purpose........ Public lands acquired through
compulsory acquisition are amongst the overriding
interests stipulated under section 30 of the Registered
Land Act which qualify the indefeasibility of title
acquired under the Act as provided in section 28(b)
above. The petitioners’ titles, to the extent that they
comprise land which forms part of the Northern Bypass,
are defeasible to that extent.
105. ......... The petitioners are, in my view, unwitting
victims of land owners who sold properties to them
without having regard to the public interest in the
portions of their properties that had been compulsorily
acquired for construction of the Northern Bypass
corridor, and of surveyors who have prepared
subdivision plans either in ignorance or disregard of
the existing road corridor. Whatever the case, I can find
no basis for alleging violation of the petitioners’
constitutional right to property by the respondents”.
Though sympathetic with the plight of the appellants in view of her
decision and the large investments they had made in the
construction of residential houses, the Judge believed their recourse lay
with those who sold the properties to them. The only favour she extended
to them was a grace period of ninety (90) days from the date of the
judgment “to surrender the 20 metres of land out of their
respective parcels that comprised the road reserve to the
respondents”.

From this passage, it was the learned Judge’s view that the vendors who
sold the properties to the appellants were aware or “or should have
been aware” that the width of the road was 80 meters; that failure to
conduct a final survey was not fatal as the information of acquisition of 80
meters for road reserve was available elsewhere, had the appellants
exercised due diligence; that the appellants had failed to discharge the
burden of providing that their constitutional rights had been violated or
threatened; that the appellants’ titles were subject to the Government’s
overriding interest, notwithstanding that the compulsory acquisition was
not noted on the register; and finally the Judge was herself convinced that
the appellants were:

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“unwitting victims of landowners who sold properties

to them without having regard to the public interest in
the portions of their properties that had been
compulsorily acquired”.
I will return to these observations shortly. But it is the determination that
they did not prove violations of their rights that has displeased the
appellants. Before us they have summarized their grounds of appeal
contending that the learned Judge erred in holding that there was a lawful
compulsory acquisition of the suit properties and that it could not inquire
into the said compulsory acquisition; that the appellants had encroached
onto the suit land, which by exercise of due diligence, they would have
known that it had been compulsorily acquired for a public purpose.

Highlighting the first ground, counsel submitted that the learned Judge
erred in applying the doctrine of privity of contract to issues of compulsory
acquisition; that the doctrine of privity of contract as a common law
doctrine is applicable only to the law of contract; that to the contrary, the
appellants’ contention was that there was no compulsory acquisition in so
far as they were concerned; that there were no requisite records in the
relevant Government offices confirming the fact of acquisition of the
properties by the Government; and that if the properties had been
acquired then the relevant Government offices would not have issued to
the appellants documents of title to those very properties.
Regarding the holding that the appellants could not assert their claims
after nearly 40 years from the date of acquisition, the appellants have
responded that the limitation of time prescribed under the Land
acquisition Act (repealed) does not apply in the circumstances of this case,
as the petition sought the protection of the appellants’ right to property
under the Constitution; and that by questioning the acquisition, the
appellants were only asserting the sanctity of their documents of title as
guaranteed by the Constitution. In their view therefore, the learned Judge
had no basis for concluding that the compulsory acquisition process was
completed, or that a compensation award was made as there was no
evidence to support that determination. On the same point the appellants
contended that the gazette notices relied on were merely, in the first place
an expression of intention to acquire and secondly an inquiry as to the
amounts for compensation and the persons to be compensated; that
consequently the two gazette notices were not in themselves proof of
compulsory acquisition; that in addition, the gazette notices did not
specify the public body for whom the land was being acquired contrary to
the requirements of section 6 of the repealed Land Acquisition Act;
and further that against the provisions of sections 17, 19 and 20 of the
Land Acquisition Act no final survey was carried out as admitted by the
Government Surveyor in his testimony where he stated that “I am aware
that under section 17 of the Survey Act, a final survey plan for the
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acquisition should have been filed. It was not there.”; that

furthermore, the Judge proceeded on an erroneous premise that since the
adjoining property, L.R. 7785/10 had a road reserve of 80 meters, then it
must follow that the width of the road reserve along L.R. 7785/9 and L.R.
12672 must also be 80 meters; and that that finding contradicted the
Judge’s own finding of fact at paragraph 75 of the Judgment, that the road
reserve at another section of the same Northern Bypass, less than 3km
away at the Kiambu Road Junction, was 60 meters.

The respondents, for their part have maintained that the suit properties
were compulsorily acquired by the Government in 1970; that since the
appellants did not challenge the process of compulsory acquisition in the
High Court, they could not do so before this Court; that in any case the
appellants lacked locus standi to challenge the acquisition considering that
they were not in the picture in 1970 when the land in question was
compulsorily acquired and the original owners duly compensated as
demonstrated in the affidavits filed by the respondents in both petitions;
that in terms of Article 162(2)(b) of the Constitution and section 7 of
the Limitations of Actions Act, twelve years stipulated for bringing action
to recover land had long elapsed; that the acquisition of the land for the
Northern Bypass was an overriding interest that needed not to be noted in
the register; and that that being the case the appellants ought to have
been aware of the legal position and that their ignorance of the law could
not avail them any defense.

Agreeing with the conclusion of the Judge, the respondents submitted that
the titles held by the appellants were, under Article 40(6) of the
Constitution of Kenya not protected as they were tainted with illegality;
that though the construction of the by- pass is complete, the disputed 20
meters comprised in the appellants’ properties was acquired for a public
purpose and must remain Government land as was found in the case of
Kenya National Highway Authority v. Shalien Masood Mughal & 5
others [2017] eKLR.
The foregoing constitutes the summary of the arguments in this dispute.
Before undertaking the evaluation of those arguments, evidence and the
law, it is apposite at this point to restate that the role of this Court on a
first appeal is to re-evaluate the evidence on record before it can
determine whether or not the conclusions reached by the learned trial
Judge are to stand and to give reasons either way. See the case of Kenya
Ports Authority versus Kuston (Kenya) Limited (2009) 2EA 212.

Upon assessment of the pleadings and rival arguments set out above,
what has emerged as the single broad issue is whether the width of the
road was reserved as 60 or 80 metres. In the process of providing an
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answer to this question, the other related issues, such as whether the
compulsory acquisition was complete; whether the appellants’ petitions
were barred by the limitation period; whether the appellants’ rights to
property protected under Article 40 were violated by the respondents
and whether the appellants’ titles were defeasible to the extent that they
formed part of public land, will, in turn be determined.
To begin with the appellants are all holders of titles issued under the
Registered Land Act to parcels of land which resulted from the sub-division
of Nairobi Block 12/193. It is from this parcel that it is alleged that the
Government had in the 1970s compulsorily acquired an 80 metre road
reserve from the original holders of the mother title. Subsequently, these
properties were acquired by the other appellants in the 1990s, and by
Cycad in 2003. It is common factor that there was a road corridor for the
Northern Bypass adjacent to the subject properties. The appellants’ only
point of contention is that this corridor was 60 metres, not 80 metres as
alleged by the respondents. They also agree that the width of the road
reserve at the properties neighbouring or adjoining theirs, namely, L.R.
7785/8 and 7785/10, is 80 metres. The respondents insisted that the land
comprised in the road reserve of 80 metres was compulsorily acquired and
proceeded to earmark the appellants’ properties for demolition. The latter
petitioned the High Court for protection, arguing that should the
threatened demolition proceed, their rights under Article 40 of the
Constitution would be violated. That Article provides, where relevant to the
issue in consideration that;

“40. (1) Subject to Article 65, every person has the

right, either individually or in association with others,
to acquire and own property––
(a) of any description; and
(b) in any part of Kenya.
(2) Parliament shall not enact a law that permits the
State or any person—
(a) to arbitrarily deprive a person of property of any
description or of any interest in, or right over, any
property of any description; or
(b) to limit, or in any way restrict the enjoyment of any
right under this Article on the basis of any of the
grounds specified
or contemplated in Article 27 (4).
........

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(6) The rights under this Article do not extend to any

property that has been found to have been unlawfully
acquired”.
The thrust of Article 40 is to protect proprietary rights which are lawfully
acquired. The Supreme Court in Rutongot Farm Ltd vs. Kenya
Forest Service & 3 others [2018] eKLR, expressed this position thus:

“Once proprietary interest has been lawfully acquired,

the guarantee to protection of the right to property
under Article 40 of the Constitution is then expressed
in the terms that no person shall be arbitrarily deprived
of property. The same guarantee existed in Section 75
of the repealed Constitution.”
Such proprietary rights are governed by statutes. For example, in this
dispute, the certificates of lease were issued under the Registered Land
Act (repealed).The appellants have argued that under the Constitution
and statute their titles are absolute and indefeasible, only subject to
implied and expressed agreements, liabilities and the leases, charges and
other encumbrances and to the conditions and restrictions, if any, shown
in the register; and “to such liabilities, rights and interests as affect
the same and are declared by section 30 not to require noting on
the register”. It is only those titles that are capable of being protected
under Article 40 that cannot be taken away except in accordance with
the Constitution and the law. While the respondents do not challenge the
validity of the appellants’ title to their respective properties, they insist
that, to the extent that the appellants have encroached on 20 metres of
the by-pass, their titles are defeasible and that they are not entitled to the
protection afforded by Article 40 of the Constitution; and that to the
extent of that encroachment their properties were to be demolished.
To determine this question the starting point must be the plan drawn for
the proposed road reserve between Ruaka Trading Centre and Kiambu
Road, through Runda estate, the subject of the dispute. That plan was
prepared by John and Burrow Consulting Civil Engineers, the
Government appointed consulting engineers, and sets out the dimensions
of the proposed road reserve width as eighty (80) metres. It is that plan
that formed the basis of the Land Acquisition recommendation.

It is readily obvious from the survey maps that the 25 kilometer stretch
from Ruaka to Ruiru Northern by pass has a width of 80 meters and that
only at the portions claimed by the appellants and at some 3 kilometers
from the suit property does it narrow to 60 meters. This is not in dispute at
all as both Mr. Reuben Mwenda Murugu and Mr. John Dominic Obel,
the two surveyors called by parties on both sides found. Equally I do not
think anything arises from the question whether or not the owners of the
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original parcel, Messrs. Noral Helen Cockburn, Runda Coffee Estate

and Estav Limited were compensated because on record, there is
evidence of payment of Kshs 208,060.00 as compensation for the acquired
land. But more fundamentally they are not aggrieved and have not
complained. That being the case, the burden shifted to the appellants to
show the contrary. There was no proof from them that the original owners
were not compensated.
It common ground that the appellants engaged licensed surveyors in
accordance with the Surveys Act. The term “licensed surveyor” is used in
the Act in contradistinction to “Government surveyor”. The latter is a
surveyor in the employment of the Government in the Survey Department
of the Government and authorized by the Director of Surveys to perform
any survey duty under the Act. A licensed surveyor, on the other hand is
therefore a private surveyor.

In the first place, only those who are qualified under the Surveyors Act,
can be granted a licence by the Land Surveyors Board to practice as such.
Because of their qualifications, by section 21, a licensed surveyor is
expected to;
“....carry out every survey undertaken by him in
such manner as will ensure that the survey accords in
all respects with the provisions of this Act and any
regulations made thereunder, and shall be responsible
for the correctness and completeness of every survey
carried out by him or under his supervision” ( Emphasis
supplied).
Also instructive on personal and professional responsibility of a licensed
surveyor is Regulation 26 of the Survey Regulations, 1994 which
provides that;
“26. (1) Every licensed surveyor shall be personally
responsible for the accuracy, fidelity, and completeness
of every survey presented by him for the approval of
the Director.
(2) It shall be the duty of every surveyor making any
survey under these Regulations to record all the
relevant information that may aid in securing the
accuracy and completeness of every such survey.
(3) Every surveyor shall perform sufficient work to
enable him to apply a thorough check to every part of
his survey.
(4) Every surveyor shall present his plan, computations
and connected documents of every survey in such a
manner as the Director, after consultation with the
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Board, may require, and if any surveyor forwards to the

Director any plan, computation or connected document
which does not conform substantially with the
appropriate requirements, the Director may, at his
discretion, return the plan, computations and
connected documents to the surveyor and may refuse
to authenticate any such plan, computation or
connected document until it has been made to confirm
with the appropriate requirements.

(5) All surveys returned to a surveyor shall be re-

submitted to the Director without undue delay.
(6) The director of Surveys shall not release the final
documents for registration of title without express
authority from the licensed surveyor who carried out
the survey.”
(Emphasis supplied).
Although, like in all professions, the highest standard of competency is
required, permissible errors in the measurement is acceptable so long as
there is effort to comply with the elaborate procedure laid down under
Regulations 56, 57 and 60, on the method of taking triangulation and
fixing of beacons. It is significant to bear in mind the express requirement
of Regulation 91 that a surveyor must take into consideration and reflect
in his plan properties, including road or railway reserve which have been
surveyed and which abut the property being surveyed.
For all these reasons and of immediate relevance and significance to the
issues in this appeal, sections 21(2), 32 and 33 of the Survey Act are
significant in so far as the role of the director of survey is concerned with
regard to surveys conducted by licensed surveyor. The former stipulates
that;
“Neither the Government nor any public officer shall be
liable for any defective survey, or any work
appertaining thereto, performed by a licensed
surveyor, notwithstanding that any plan relating to
such survey or work has been authenticated in
accordance with the requirements and provisions of
this Act or accepted for registration under any written
law for the time being in force relating to the
registration of transactions in or of title to land”.
(Emphasis)

Section 32 on the other hand provides that;

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“32. No land shall be deemed to have been surveyed or

resurveyed until the plan thereof has been
authenticated by the signature of the Director or of a
Government surveyor authorized in writing by the
Director in that behalf, or by the affixing of the seal of
the Survey of Kenya......
33. (1) Where, before a document or instrument to
which an authenticated plan is attached, or in which
reference to such a plan is made, is registered—
(a) the plan is found to be inaccurate by reason of any
error or omission in the survey; or
(b) the plan does not conform with the terms and
conditions subject to which permission to subdivide the
land to which the plan relates has been given, the
Director may cancel the authentication of such plan and
may recall any copies which may have been issued, and
in every case the provisions of section 31 shall apply”.
So what is to authenticate in the context of the Survey Act" Section 41
explains that;
“41(1) A plan shall be deemed to be authenticated and
identified for the purposes of sections 39 and 40 if—
(a) it is authenticated, by the signature of the Director
or of a Government surveyor authorized in writing by
the Director in that behalf and by the signature of the
authority by whom the notice is given, to be the land or
area to which the notice refers; and
(b) it is identified by a reference number”.

Authentication is therefore both by signature and reference number.

Although a licensed surveyor is duty bound to ensure the correctness,
accuracy, fidelity and completeness of every survey carried out by him,
and even though Government will not be held liable for any defective
survey performed by a licensed surveyor, plainly the role of the Director
elaborately set out in the above provisions is not merely mechanical. As a
regulating office the Director is not expected to approve surveys
presented to him as a matter of routine. That is so for these reasons. The
Director is required to make sure that all surveys are carried out in
accordance with his directions and the law. That is also why, once survey
plans and records are deposited with him they become the property of
Government. If any surveyor forwards to the Director any plan which does
not conform substantially with the appropriate requirements, the Director,
at his discretion, may return the plan to the surveyor and for that reason
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may refuse to authenticate the plan. In addition, if before a plan is

registered it is found to be inaccurate by reason of any error or omission in
the survey the Director may cancel the authentication of such plan and
may recall any copies which may have been issued. But the more
emphatic and clear statement that the Director is required to do more in
authenticating the plans is contained in section 22 which imposes a duty
on the Director to superintend over all surveys of land. It states that;
“22. Any survey of land for the purposes of any written
law for the time being in force relating to the
registration of transactions in or of title to land (other
than the first registration of the title to any land made
in accordance with the provisions of the Land
Consolidation Act (Cap. 283) or the Land Adjudication
Act (Cap. 284)) shall be carried out under and in
accordance with the directions of the Director”.

See also Embakasi Properties Limited & another v Commissioner

of Lands & another [2019] eKLR.
Even if the word “authentication” was to be given its literal or dictionary
meaning the result will still be the same. To authenticate simply to “prove
or show (something) to be true, genuine, or valid; to verify,
validate, prove to be genuine, certify; substantiate, prove, be
proof of, give proof of, corroborate, confirm, support, evidence,
attest to, bear out, give credence to, back up; document; to
validate, ratify, confirm, seal, sanction, endorse, guarantee" The
Cambridge English Dictionary.
The Director having authenticated the plans in respect of the suit
properties as genuine, any party, including the appellants relying on such
document are protected by the provisions of section 43 which states
that;
“43. (1) All plans authenticated under this Act,
purporting to be signed by the Director, or by a
Government surveyor authorized by the Director in that
behalf, or to be sealed with the seal of the Survey of
Kenya, shall be presumed, until the contrary is proved,
to have been signed by the Director, said, or or by a
Government surveyor authorised as aforesaid, to have
been sealed with the seal of the Survey of Kenya, as
the case may be”.
It was contended that, from the content of a letter dated 9 th November
2010 written on behalf of Cycad to Mimosa Plantations Limited
Properties Limited, Cycad acknowledged that the latter in selling to it a
property which had partly been acquired was in breach of warranties; that
with the knowledge that the vendor had no colour of right to sell to it part
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of the suit land, Cycad ought to have directed its discontent towards the
vendor and not the respondents.

Like the appellants in Civil Appeal No. 156 of 2013, by the time Cycad
realized that there was a competing claim by the Government over part of
the suit propriety, it had committed itself beyond recall. Again like the
other appellants the crux of their argument is that they were innocent
purchasers for value and without notice of the defects in the seller’s title;
that they were expected as prudent purchasers to conduct and did
conduct due diligence; that the records at the Ministry of Lands and
Directorate of Survey indicated that the width of the road reserve
adjoining the suit properties was 60 and not 80 meters; that the width of
60 meters road reserve resulted from concessions left following the
subdivision of the mother titles; that indeed to this day the survey maps
from the Directorate of Surveys continue to show that the road reserve
along the affected properties is 60 meters; that part of the key purpose of
section 17 of the Land Acquisition Act is to put on notice would-be
purchasers of land already compulsorily acquired; and that the documents
presented by the 1st respondent as annexures JN-1 and JN-2 to the 1 st
respondent’s replying affidavit could not constitute a final survey in terms
of section 17 of the Land Acquisition Act; that the said documents are
merely design drawings that do not have the basic components of survey
plans; that the so-called plans did not include, for example, dimensions,
coordinates, bearings, acreages, a coordinate reference system, datum
plans or source information, which a survey plan would ordinarily have. It
was therefore, according to the appellants, erroneous for the Judge to
regard these drawings as final survey plans.

Based on the foregoing, I believe the essence and most serious part of the
complaint by the appellants is that sections 17, 19 and 20(2)(b) of the
Land Acquisition Act were not complied with; the result being that no final
survey was conducted; that the Gazette Notices published in 1970 were
defective and inoperative as they did not indicate the public body in
whose favour the land parcels in question were being acquired; that
inquiry under section 9 of the Land Acquisition Act as to the
compensation payable was not conducted; that no evidence of
compensation was presented as required under section 13 of the Land
Acquisition Act; that the Commissioner of Lands did not take possession of
the acquired land as stipulated in section 19 of the Land Acquisition
Act; that the Commissioner did not demand the surrender of the mother
titles pursuant to section 20 of the Act; and that in the circumstances the
appellants had no means of knowing that the property had been acquired
by the Government in the absence of an entry to that effect in the land
register. Section 17, in relevant part provides that;

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“17. Where part only of the land comprised in

documents of title has been acquired, the
Commissioner shall, as soon as practicable, cause a
final survey to be made of all the land acquired.

...........
19. (1) After the award has been made, the
Commissioner shall take possession of the land by
serving on every person interested in the land a notice
that on a specified day, which shall not be later than
sixty days after the award has been made, possession
of the land and the title to the land will vest in the
Government.
.......
(3) Upon taking possession of land under subsection
(1) or subsection (2), the Commissioner shall also serve
upon—
(a) the registered proprietor of the land; and
(b) the Registrar, a notice that possession of the land
has been taken and that the land has vested in the
Government.
(4) Upon taking of possession, the land shall vest in
the Government absolutely free from encumbrances.
............
20. (1) Where the documents evidencing title to the
land acquired have not been previously delivered to
him, the Commissioner shall in writing require the
person having possession of the documents of title to
deliver them to the Registrar, and thereupon that
person shall forthwith deliver the documents to the
Registrar.
(2) On receipt of the documents of title, the Registrar
shall—
(a) where the whole of the land comprised in the
documents has been acquired, cancel the documents;
(b) where only part of the land comprised in the
documents has been acquired, record upon the
documents that so much of the land has been acquired
under this Act and thereafter return the documents to
the person by whom they were delivered and upon such
receipts, or if the documents are not forthcoming,
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cause an entry to be made in the register recording the

acquisition of the land under this Act.” (Emphasis
supplied).

It is common factor that as a preliminary step the Commissioner

expressed his intention through a gazette notice of 20 th November, 1970
to compulsorily acquire the property in question; that he also published in
the Gazette of the same date to interested persons a Notice of Inquiry;
and that only part of the original land was intended to be and was in fact
acquired for the by-pass. Subsequently, the Government appointed a
licensed surveyor, John and Burrow Consulting Civil Engineers to set
out the dimensions and width of the proposed road reserve. Indeed, it was
on the strength of the survey plan prepared by this firm that the
acquisition was premised.
The gazette notice of intention to acquire, the Notice of Inquiry and the
initial survey constitute what is described in Part 11 of the Land
Acquisition Act as “Preliminaries to Acquisition”. After this
preliminary stage, in terms of section 17 aforesaid, the Commissioner
was required to conduct a final survey. A final survey by the Government,
in exercise of its powers of eminent domain, is significant as it is only
through it that the exact particulars of the acquired land can be
ascertained.
The Commissioner was also required by section 7 of the Land
Acquisition Act, to mark out and measure the land which was to be
acquired and to prepare a plan. Survey marks which under section 2 of
the Survey Act are made up of “trigonometrical station,
fundamental benchmark, benchmark, boundary beacon, peg,
picket mark or pole” are significant in defining the extent of the land
acquired. That is why the law imposes a mandatory duty on every person
to protect and not to interfere with the marks on the ground and
commands the surveyor to reflect them on the survey plan. There was no
proof that the Government erected any form of a mark on the suit
property to identify the acquired portion.

This failure only goes to confirm that the Government did not carry out a
final survey. As a matter of fact, Mr. Reuben Murugu the Government
Surveyor himself admitted this fact when he stated in his testimony that;
“I am aware that under section 17 of the Survey Act, a
final survey plan for the acquisition should have been
filed. It was not there.
….
The final survey in the case of a land acquisition is
prepared by the Director of survey or a government
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surveyor on the instructions of the commissioner of

lands. The role of the Director of surveys is to confirm
that the acquisition plan is in order with respect to
compulsory acquisition. There is no letter to prepare a
final survey. There is no letter from the Commissioner
of Lands instructing the purchaser to carry out a
survey.”
G.A Hollis, a Government valuer, writing in 1972 advised the
Government that it was imperative to conduct a final survey of the
acquired land, observing that the road acquisition plans that the
Government intended to use were not “easy to comprehend due to
the numerous amendments” from the time the original plans were
submitted to the Lands Department.

Similarly, the allegations that the original documents of title in respect of

the acquired property were never surrendered by the owners at the time
to the Registrar were not controverted. I reiterate the provisions of
section 20 in which it is emphasised that the documents of title of an
acquired land under the Land Acquisition Act must be delivered to the
Registrar upon completion of acquisition process. The Registrar for his part
is enjoined, upon receipt of these documents, to cause an entry of that
fact to be made in the register. Without an entry in the register recording
the acquisition, the consequence was that any party dealing with the land
would be justified in assuming that the land still belonged to the original
owners.
After the Government has made an award to compensate the owners of
the land acquired, it must take possession of the land “by serving on
every person interested in the land a notice that on a specified
day, which shall not be later than sixty days after the award has
been made, possession of the land and the title to the land will
vest in the Government”.
The manner of taking possession is prescribed by subsection (1) of
section 19 Land Acquisition Act. Possession is taken “by serving on
every person interested in the land a notice that on a specified
day, which shall not be later than sixty days after the award has
been made, possession of the land and the title to the land will
vest in the Government”. Upon taking possession of land the
Commissioner must “serve upon the registered proprietor of the
land and the Registrar”, a notice to the effect that possession of the
land has been taken and that the land has vested in the Government.
Through possession, the interest of the public body in whose favour the
land is being acquired is safeguarded and the attention of the general
public is drawn to the fact that the land is no longer available for
alienation.

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It is apparent from the record that the respondents did not demonstrate
that the requisite notices were served as decreed in law before the
Government took possession. Indeed, the only gazette notices exhibited
are No. 3439 of 12th November, 1970 in which the intention to acquire the
land was expressed and No.3440 also of the same date calling for hearing
of compensation claims by all affected persons.
The result was that when LR. 7785/9 was being sub-divided, there was no
final survey plans or entries on the title documents showing the excision of
the land the Government was claiming to have acquired from LR 7785/9 or
LR L.R. 12672. The original documents of title had not been surrendered.
The title documents and survey plans resulting from the sub-division were
not made subject to the purported acquisition. Survey plans relied on and
drawn by John Burrows & Partners were not authenticated and signed
by the Director of Surveys or Government Surveyor authorized by the
Director as required in sections 30 and 32 of the Survey Act. They have
no seal of the Survey of Kenya. And finally, there was no possession.
Turning briefly to the issue of the width of the road, the first observation
to make is that a purchaser of land abutting the road would ordinarily not
be bothered or concern himself or herself with the width of the road.
Whether the width of the road is 60 or 80 meters, is a technical question
that an ordinary purchaser of land next to a road would not comprehend,
leave alone be expected to know. Even the two professionals, Mr. Obel, a
licensed surveyor and Mr. Murugu, the Government’s Senior Assistant
Director of Survey could not agree on the question. This confusion would
have been avoided and the width of the road established forever had the
Government carried out a final survey. It is indeed likely, as contended by
the respondents that the width of the road was reserved as 80 meters. On
the other hand, the argument that it was 60 meters is equally plausible.
When the trial court inspected the road, it became clear that the width
varied in some areas it was 80 meters while in others it was 60 meters.
For example, when the trial court moved to the locus in quo it noted that
at the Windsor Hotel roundabout the width of the road was 60 meters. Mr.
Obel confirmed that it was normal to have, on the same stretch of the
road, different road dimensions. He said in his report to the trial court that;

“3.8 The width of the road reserves for the entire

Northern By-pass is not uniform all through as
evidenced by other maps presented to the court by the
respondents and maps for adjacent lands. See
annexure 4”
In a report filed in Kenya National Highway Authority v Shalien
Masood Mughal & 5 others [2017] eKLR, a case similar to this one but

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involving the Southern Bypass, it was established that the width of the
road was at some point 60 meters and at others 80 meters.

The truth, however, is that to this day there is no document maintained

by the Director of Survey as “conclusive” proof that the width of the road
as 80 meters. On the contrary, the documents available, including maps
and plans show the width along the suit properties as 60 meters. During
subdivision, surveys conducted in two phases by Mr. Wabaru on LR
7785/9 in 1989 and in 1990 gave a provision of 60 meters for the road.
According to the report dated 7th June, 2012 submitted pursuant to an
order of the court by the Director of Survey, Mr. Gatome, a licensed
surveyor who was involved in the subdivision of LR 12672 indicated the
width of the road as 60 meters.
An affidavit sworn by Mr. Obel pursuant to an order of the court and
further to his report makes the point that Mr. Gathuru, the surveyor who
carried out the subdivision of LR 7785/9 computed the road reserve as 60
meters and that, in addition, the Commissioner of Lands in his letter of
provisional approval dated 20th April, 1999 gave the road reserve for LR
12672 as 60 meters in width. Some of the appellants, specifically in High
Court Petition No. 69 of 2010 are holders of titles arising from subdivision
of LR 12672.
It must be remembered, if I understood the appellants’ argument, that by
raising these matters at the trial stage and before us the appellants are
not suggesting that there was no compulsory acquisition at all. I personally
cannot arrive at that conclusion when the original owners are not parties
to these or earlier proceedings and when they have not complained they
were not fully compensated because, as a matter of fact there is evidence
that Estav Limited, the predecessor in title to Mimosa Plantations
Limited acknowledged in their letter to the Commissioner dated 22 nd
December, 1970 having received payments of Kshs. 208,060 in respect of
LR 7785/9 and a further payment of Kshs 785,536.

The reason for revisiting the process of acquisition is simply to reiterate

and stress that, ex facie a third party dealing with the properties in
question, even with the exercising of due diligence would never have
known that there was a prior Government interest.
The conclusion that one will inevitably reach from all these is that the
critical steps precedent to compulsory acquisition of the properties in
question were not strictly followed or completed. Significantly, the
documents that were required to be registered were not registered. Courts
have repeatedly stressed that the process of compulsory acquisition have
to be conducted scrupulously and strictly in accordance with the
Constitution and law. See: Virenda Ramji Gudka and 3 others v
Attorney General ELC Civil Suit No. 480 of 2011, the Commissioner
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of Lands v Coastal Aquaculture, Civil Appeal 252 of 1996, and

Shalein Masood Mughai v Attorney General & 5 others, Petition No.
186 of 2013, Mutuma Angaine V M’Marete M’Muronga Civil Appeal
123 of 2006.
In Mutuma Angaine case (supra) this Court emphasised that point as
follows;

“....it is trite law that when a person’s property is

forcefully acquired the Government must fully comply
with the law, and follow the laid down procedure
strictly and meticulously. No person’s property may be
acquired compulsorily without due process. Section
6(2) of the Act aforesaid requires that certain critical
steps be taken before a person is deprived of his or her
property”.
For nearly 40 years from 1970 when the Government expressed an
interest to acquire the suit property and paid for it, to 2010 when portions
of the appellants’ properties were earmarked for demolition, the
Government did not take any steps to assert its title.
As if that was not enough, the same Government through the
Commissioner of Lands went ahead on diverse dates in the 1990s, earlier
and even after, to issue certificates of lease to the appellants’
predecessors in title and ultimately to the appellants themselves under
the Registered Lands Act, granting them indefeasible titles.
Both the Constitution and statute law emphasise the sanctity of title to
land. The registration of a person as the proprietor of land vests in that
person the absolute ownership of that land subject only to the leases,
charges, conditions and restrictions, if any, shown in the register. See:
Article 40 of the Constitution and sections 27, 28, 30, 32 and 143 of
the repealed Registered Lands Act. Because of their relevance it is
apposite to paraphrase and set out some of these provisions.
Article 40 guarantees every person the right to acquire and own
property in any part of Kenya and Parliament is enjoined not to enact any
law that permits the State or any person to arbitrarily deprive a person of
his or her property unless the deprivation is as a result of compulsory
acquisition by the Government for a public purpose or in the public
interest and only upon prompt payment in full, of just compensation to the
land owner. Section 143 of the Registered Land Act underscores the
sanctity of title to land by stating in subsection (2) that;

“(2) The register shall not be rectified so as to affect

the title of a proprietor who is in possession and
acquired the land, lease or charge for valuable
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consideration, unless such proprietor had knowledge of

the omission, fraud or mistake in consequence of which
the rectification is sought, or caused such omission,
fraud or mistake or substantially contributed to it by
his act, neglect or default”.
Such, is the protection granted to a registered proprietor whose
registration, as a bona fide purchaser, may only be cancelled where it is
proved that it was obtained by fraud or mistake, in which the proprietor
had knowledge of or was a party or substantially contributed to. The
protection of innocent purchasers has been recognized from time
immemorial. For example, Fletcher V Peck, 10 U.S 87 (1810), the
landmark United States Supreme Court’s decision in 1810, is remembered
for being the first decision to declare a state law unconstitutional. But for
this jurisdiction, the relevance of the decision is its creation of a precedent
for the sanctity of legal title to land vis à vis innocent third party
purchasers. Delivering the opinion of the court Marshall, C. J., said:-
“...original grantees, by the conveyance of the
governor, and being in full possession of the legal
estate, they, for a valuable consideration, conveyed
portions of the land to those who were willing to
purchase. If the original transaction was infected with
fraud, these purchasers did not participate in it, and
had no notice of it. They were innocent. Yet the
legislature of Georgia has involved them in the fate of
the first parties to the transaction, and, if the act be
valid, has annihilated their rights also....

.....If a suit be brought to set aside a conveyance

obtained by fraud and the fraud be clearly proved, the
conveyance will be set aside, as between the parties;
but the rights of third persons who are purchasers
without notice, for a valuable consideration cannot be
disregarded. Titles which according to every legal test,
are perfect are acquired with that confidence which is
inspired by the opinion that the purchaser is safe. If
there be, any concealed defect arising from the conduct
of those who had held the property long before he
acquired it of which he had no notice that concealed
defect cannot be set up against him.
He has paid money for a title good at law, he is
innocent whatever may be the guilt of others and
equity will not subject him to the penalties attached to
that guilt. All titles would be insecure, and intercourse
between man and man would be very seriously
obstructed if this principle be overturned”
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Courts in Kenya have enforced this edict in countless cases and have
consistently declined to recognise and protect titles to land, which have
been obtained illegally or tainted with fraud. In this regard the decision of
the Court in Chemey Investment Limited v Attorney General & 2
others Civil Appeal No. 349 of 2012 is the latest. In it the Court
rejected the invitation to uphold the sanctity of title of the allottees upon
finding that allottees applied and were allocated the suit property, which
was Government land on which was erected buildings used for public
purposes. The allottees had deliberately represented that the suit property
was vacant. This, no doubt was a clear case of fraud in which the allottees
fully participated.

The courts have indeed been consistent that a bona fide purchaser will
not be bound by any interests of which he or she does not have actual,
constructive or imputed notice, as long as he or she did reasonable due
diligence before purchasing. See: Moses Lutomia Washiali v
Zephaniah Ngaira Angweye & another, Civil Appeal No. 139 of
2013.
Bona fide purchaser, the courts have maintained, is assured of protection,
notwithstanding that previous dealings might be shown to have been
mired in fraud. See Dr. Joseph Arap Ngok V Justice Moijo ole Keiwua
& 5 others, Civil Appeal No. Nai. 60 of 1997.
The Ugandan case of Katende v. Haridar & Company Limited (2008)
2 E.A.173, has been cited extensively with approval in many local
decisions. It developed the following strictures to be satisfied before a
conclusion can be drawn that the purchaser is innocent and acquired the
property for value and without notice:-
“....... it suffices to describe a bona fide purchaser as a
person who honestly intends to purchase the property
offered for sale and does not intend to acquire it
wrongly. For a purchaser to successfully rely on the
bona fide doctrine, (he) must prove that:
a. he holds a certificate of title;
b. he purchased the property in good faith;
c. he had no knowledge of the fraud;
d. he purchased for valuable consideration;
e. the vendors had apparent valid title;

f. he purchased without notice of any fraud;

g. he was not party to any fraud.

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A bona fide purchaser of a legal estate without notice

has absolute unqualified and answerable defence
against claim of any prior equitable owner.”
The appellants in the instant appeal are all purchasers. The question to be
decided, in order for them to enjoy protection of the law is whether they
were bona fide purchasers, for valuable consideration and without notice
of the competing Government’s claim to the title of the suit property. The
learned Judge appreciated in her judgment that the appellants were;
“.... in my view, unwitting victims of landowners who
sold properties to them without having regard to the
public interest in the portions of their properties that
had been compulsorily acquired for construction of the
Northern Bypass corridor, and of surveyors who have
prepared subdivision plans either in ignorance or
disregard of the existing road corridor”.
The law has never intended to punish the innocent as to punish the
innocent would break down all the trust and respect for the law and legal
system.
There is no suggestion and no proof was presented that there was fraud
in the sale transaction between the appellants and the vendors, in which
the former knowingly got involved. The vendors, it was established had
apparent valid title and it was not demonstrated that the appellants did
anything or failed to do anything to suggest that they knew of the fraud of
mistake, if any. The evidence on record points to people acting in good
faith. They paid valuable consideration for their properties and there was
no indication at all in the lands registry from which they could reasonably
be expected to know or to suspect that the Government too had before
them vested interest in the land. For fraud to be implied in a transaction of
sale and registration of land section 2 of repealed Registration of Titles
Act requires the following proof;

“Fraud” shall on the part of a person obtaining

registration include a proved knowledge of the
existence of an unregistered interest on the part of
some other person, whose interest he knowingly and
wrongfully defeats by that registration.”
The 1st respondent in response to the petition in the affidavit sworn by its
Director General Engineer Joseph Nkadyo, at paragraph 18 alleged fraud
by stating that;
“… From the said plan one can see that the said land
owners subdivided the entire Northern corridor for
which they had already been compensated by the

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Government. They illegally processed titles for the road

corridor and transferred the same to individuals.
19. THAT the private surveyors hired by the land
owners exacerbated the problem by deliberately
drawing up survey plans that completely disregarded
the 1970 Government Land acquisition.”
The 2nd, 3rd and 4th respondents in their submissions to the petition also
supported those allegations of fraud. The allegations, to my mind do not
amount to proof of fraud and in any case no fraud was pleaded against the
appellants.

Further the allegations of fraud by the owners of the mother titles was not
proved.
In exercising due diligence, the appellants confirmed, from the lands
registry and were satisfied that the vendors were the registered owners;
and that no restrictions were registered against the title. There was no
indication at all in the register that the Government had acquired the
properties. Likewise, there were no signs or marks that the properties
belonged to the Government or any other person apart from the vendors.
The appellants were not expected, as I have stated earlier, to inspect
documents held by the Kenya National Highway Authority. Ordinarily, and
in law by the force of section 31 of the Registered Land Act, it is sufficient
for a purchaser of land to conduct official search at the lands registry only.
That section 31 states that;
“Every proprietor acquiring any land, lease or charge
shall be deemed to have had notice of every entry in
the register relating to the land, lease or charge and
subsisting at the time of acquisition”
If a certificate of lease duly issued by the Registrar is prima facie
evidence of ownership and if the owner is proved to have exercised due
diligence at the point of acquisition, on what basis could the appellants’
petition for protection under Article 40 be defeated"
It has long been accepted beyond debate that the land registration
process in Kenya is a product of the Torrens system. This was
acknowledged in, among a long line of decided cases, this Court’s
judgments in Dr. Joseph Arap Ngok V. Justice Moijo ole Keiwua & 5
others, Civil Appeal No. Nai. 60 of 1997 and Charles Karathe Kiarie
& 2 Others V Administrators of Estate of John Wallance Muthare
(deceased) & 5 others, Civil Appeal 225 of 2006.

Under that system, the title of a bona fide purchaser for value without
notice of fraud cannot be impeached; that the land register must mirror all

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currently active registrable interests that affect a particular parcel of land;

that the Government, as the keeper of the master record of all land in
Kenya and their owners, guarantees indefeasibility of all rights and
interests shown in the land register against the entire world; and that in
case of loss arising from an error in registration, the Government
guarantees the person affected of compensation. Finally, the statutory
presumption of indefeasibility and conclusiveness of title based on the
register can be rebutted only by proof of fraud or misrepresentation which
the buyer is himself shown to have been involved.
The object of the Torrens system was, in very compelling language,
explained in the decision of the Privy Council in Gibbs V. Messer [1891]
AC 247 P.C. at page 254 as follows:-
“The main object of the Act, and the legislative scheme
for the attainment of that object, appear to them to be
equally plain. The object is to save persons dealing
with registered proprietors from the trouble and
expense of going behind the register, in order to
investigate the history of their author’s title, and to
satisfy themselves of its validly. That end is
accomplished by providing that everyone who
purchases, in bona fide and for value, from a registered
proprietor, and enters his deed of transfer or mortgage
on the register, shall thereby acquire an indefeasible
right, notwithstanding the infirmity of his author’s
title.”. (Emphasis supplied).

In order to discharge the burden on them and for them to secure their
titles, it was enough for the appellants to show that they acquired
interests to their properties from the vendors who were registered owners;
that they did so in good faith, without notice and did not participate in any
fraud. This burden was discharged. It was not their duty to ensure the
accuracy of the information contained in the register. They fully relied on
the information contained in the register before committing themselves as
they did beyond recall. Though not a consideration, the appellants took
possession of the suit properties and have invested millions of shillings to
put up palatial upmarket properties without knowing the existence of any
other interest, through no fault of their own. It must have taken the
appellants’ considerable period of time, in view of the massive nature of
those developments, to compete the construction. All through the
Government and its agencies cheered them on. They were granted all the
requisite permits and licenses prior to commencing the construction.
There is no proof that the respondents raised any objection to their
activities.
I reject the argument that under section 30 of the Registered Land
Act, compulsory acquisition being an overriding interest was not expected
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to be registered to have effect. To appreciate the argument section 30

provides that;
“30. Unless the contrary is expressed in the register,
all registered land shall be subject to such of the
following overriding interests as may for the time being
subsist and affect the same, without their being noted
on the register -
.............

(c) rights of compulsory acquisition, resumption,

entry, search and user conferred by any other written
law; Provided that the Registrar may direct registration
of any of the liabilities, rights and interest hereinbefore
defined in such manner as he thinks fit”.
For the acquisition process to be complete section 20 of the repealed
Land Acquisition Act, in a mandatory language compels the
Commissioner, where only part of the land has been acquired, as is the
case here to record upon the documents the size acquired and thereafter
“cause an entry to be made in the register recording the
acquisition of the land”. This requirement is critical in the process as it
is only by entering in the register how much of the whole parcel of land
has been acquired that all persons dealing with the land would know that
fact. Section 21 of the Land Act, in more or less the same language goes
further than the repealed section 20 and introduces subsection (2) (b)
that directs the National Land Commission to formally write to the persons
having original documents of title for the acquired land to deliver them to
the Registrar and the latter upon receipt of the documents, to;
“(a) cancel the title documents if the whole of land
comprised in the document has been acquired
(b) if only part of the land comprised in the document
of title has been acquired, the registrar shall register
the resultant parcels and cause to be issued, to the
parties, title documents in respect of the resultant
parcels.
3. If the documents are not delivered the registrar will
cause an entry to be made in the register recording the
acquisition of land under this Act”.

It is emphasized that in line with the sentiments of the Court in

Commissioner of Land v. Coastal Aquaculture Ltd (Supra) that “all
procedures related to compulsory acquisition must not only, be

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strictly pursued, but must also, appear to be so on the face of the

inquiry”.
Therefore, section 30 aforesaid must be read not in isolation but
together with section 20 of the Land Acquisition Act. Had the
Commissioner complied with the latter section and noted in the register
that part of the appellants’ properties had been acquired, the appellants
would have, no doubt limited their homes to the extent permitted and if
they exceeded they would not have been protected by the law.
Article 40 of the Constitution provides for the protection of the right to
property and forbids Parliament and the State from arbitrarily depriving a
person of his or her property. The key word in the Article is “arbitrarily”.
The Article defines the extent to which the State can legitimately regulate
private property and the circumstances under which a lawful expropriation
of property can take place. While it is uncontested that property rights are
not absolute; that they may legitimately be limited to facilitate the
achievement of important social purposes, the limitation must not be
arbitrary. The deprivation must comply with the requirements of Article
40 and all the laws on compulsory acquisition.
It is the case for the appellants that their rights to property guaranteed by
Article 40 of the Constitution were threatened with violation. The doctrine
of sanctity of title is anchored on the premises that the registered owner
lawfully obtained certificate of title; and that the owner’s title is
indefeasible unless it is shown to have been unlawfully acquired.

It is now an established principle that anyone who wishes the court to

grant a relief for violation of a right or fundamental freedom, must plead
the manner of the violation. The courts have reaffirmed as good the
principles enunciated in Anarita Karimi Njeru v Republic (No.1) -
[1979] KLR 154. See: Meme v. Republic & another [2004] 1 KLR
637) and also MumoMatemo v. Trusted Society of Human Rights
Alliance Civil Appeal No. 290 of 2012.
From what I have said in the preceding paragraphs, I have no difficulty in
arriving at the conclusion that the appellants discharged the burden
placed upon them. They were the registered owners. As far as the
evidence before the court goes, they obtained that registration lawfully.
Their titles were, in the circumstances indefeasible as there was no proof
of fraud.
Article 40(6) of the Constitution, which declares that the protection of
the right to property does not extend to properties that are established to
have been unlawfully acquired, does not apply to the appellants. No fraud
or misrepresentation has been ascribed to them. It has not been
demonstrated that they were privy to any such misconduct. They were, as
I have said earlier innocent purchasers who had relied on the contents of
the land registry records to acquire the properties. It would be contrary to
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the intent of law and wholly unnecessary for a party seeking to acquire
interest in land to go beyond the register to establish ownership and the
history of the past transactions involving that land. It must be reiterated
further that the only reason why the law requires the keeping of land
records is to afford a notice to the whole world of the status of the
property. See: Eunice Grace Njambi Kamau & another v. Attorney
General & 5 others ELC Civil Suit No. 976 of 2012, Denis Noel
Mukhulo Ochwada & Another v. Elizabeth Murungari Njoroge &
Another, Civil Appeal. No. 293 of 2013 and Kenya National
Highway Authority v. Shalien Masood Mughal & 5 Others Civil
Appeal No. 327 of 2014.

The argument that the owners of the mother titles to the suit properties
and their surveyors knew, or ought to have known the extent of road
reserve cannot be a basis to transpose such knowledge if at all to the
appellants. In any case all the surveys conducted, whether by licensed or
Government surveyors, must be submitted to the Director of Survey and
authenticated as such, pursuant to Sections 30 and 32 of the Survey
Act.
The threat to demolish the appellants’ properties by respondents was
real. The perimeter walls around their properties had been earmarked by
the respondents for demolition yet the same respondents were the
authors of the confusion.
Clearly, from my conclusion the learned Judge was in error for rejecting
the appellants’ petition and holding that their property rights were not
threatened. The appellants’ petition ought to have succeeded.

Accordingly, this appeal succeeds. The decision of the High Court

rendered on 25th April, 2013 is set aside and grant costs of this appeal and
in the High Court to the appellants.
I have read the dissenting judgment of Odek, JA and the concurring
judgment of Sichale, JA. As Sichale, JA is in agreement, this shall be the
majority decision of the Court.
Dated and delivered at Nairobi this 7th day of June, 2019.
W. OUKO, (P)
...................................
JUDGE OF APPEAL
I certify that this is a true
copy of the original.
DEPUTY REGISTRAR

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FATUMA SICHALE, JA
In the 1970’s the Government of Kenya (the Government), in a bid to
ease traffic congestion in the city of Nairobi, floated the idea of a
construction of a road that now constitutes the Northern By-Pass.
Accordingly, a number of privately owned parcels of land were
identified. In furtherance of its intention, the Government published
its intended acquisition of 6.420 acres from Land Registration No. 23
(then owned by Edith Gladys Cockburn), 16.061 acres from Land
Registration No.778519 (then owned by Efstav Limited) and 27.984
acres from Land Registration No. 7785/10 (then owned by Runda Coffee
Estate Limited) in Kenya Gazette Notices No. 3439 and 3446 of 20th
November, 1970. Simultaneously with the said publication, the
Government issued Kenya Gazette Notice No. 3440 of the same date (20th
November, 1970) pursuant to Section 9 of the Land Acquisition Act,
(now repealed) being a notice of inquiry to hear claims of compensation.
Thereafter, the Government commissioned a private surveyor by the name
John Burrow and Partners Consulting Civil Engineers to delineate
the portions of land to be hived off from the identified parcels of land.
Subsequently, although the appellants denied this, there is evidence
that the Government compensated the owners, the appellants’
predecessors in title. However, as the land owners owned much more than
what was to be compulsorily acquired, each one of them subdivided the
remainder of their portions of land into smaller plots which were then sold
to the appellants who are the current holders of titles/leases issued to
them by the Registrar of Titles and /or Commissioner of Lands. Suffice to
state that the appellants’ titles were registered pursuant to Section
29 of the Registered Land Act (RLA) Chapter 300 of the Laws of Kenya
and Section 23 (1) of the Registration of Titles Act (RTA) Chapter 281 of
the Laws of Kenya, (both Acts are now repealed). It is common ground
that the Northern By-Pass cuts through Runda Estate where the
appellants’ properties abut the Northern By-Pass.

According to the 1st respondent, some of the subdivided lands purchased

by the appellants encroached on the land that had been compulsorily
acquired by the Government for the construction of the Northern By-Pass.
In an affidavit sworn on 9th December, 2016, Engineer N. Nkaango
summed up the 1st respondent’s position. He deposed that:
“… the land owners subdivided the entire Northern
corridor for which they had already been compensated
by Government. They illegally processed titles to the
road corridor and transferred the same to individuals.”
It is the respondents’ position that the encroachment by the appellants
has the effect of reducing the width of the road from 80 metres to 60
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metres. The respondents placed reliance on Article 40 (6) of the

Constitution in support of their contention that the protection of right to
property does not extend to property illegally and/or unlawfully acquired.
On the other hand, the appellants refute the contention that the width of
the Northern By-Pass in the sections abutting their properties is 80 metres.
It is their contention that when they carried out official searches at the
Lands Registry, the official records did not indicate that their properties
had encroached on the road reserve. It was their further contention that
they are bona fide purchasers for value without notice.

It would appear that the appellants bought their various plots at different
times and enjoyed relative calm (except when they took part in a
demonstration against persons who attempted to grab the 60 metres
width of road set aside for the construction of the Northern By-Pass) until
when the 2nd and 5th respondents earmarked parts, portions or walls of
houses belonging to the appellants for demolition for purposes of
extension of the road boundaries. It is the respondents’ actions that
caused the appellants to move to court. The appellants filed two
Constitutional Petitions (No. 70 of 2010 and No. 69 of 2010). These two
petitions were heard together and in a judgment dated 25th April, 2013,
Ngugi, J held as follows:
“[106] It is true that the petitioners have a right to
own property, and they are entitled to their properties
to the extent that such a properties have not
encroached upon land that was acquired and set aside
for public purposes. Their right to property must be
exercised within and in accordance with the framework
of the law. Public lands acquired through compulsory
acquisition are amongst the overriding interest
stipulated under Section 30 of the Registered Land Act
which qualify the indefeasibility of title acquired under
the Act as provided in Section

28 (b) above. The petitioners’ titles, to the extent that

they comprise land which forms part of the Northern
by-pass are defeasible to that extent.
[107] I do not therefore see, in the two petitions
before me, any violation or limitation of the petitioner’s
right to property. The petitioners are in my view,
unwitting victims of landowners who sold properties to
them without having regard to the public interest in the
portions of their properties that had been compulsorily
acquired for construction of the Northern by-pass
corridor and of surveyors who have prepared sub-
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division plans either in ignorance or disregard of the

existing road corridor. Whatever the case, I can find no
basis for alleging violation of the petitioner’s
constitutional right to property by the respondents.”
She ordered that the appellants:
“….. surrender the 20 metres of land out of their
respective parcels that comprised the road reserve to
the respondents. The titles to all parcels shall be
rectified accordingly”
The appellants were aggrieved by the said outcome thus provoking this
appeal. In a Memorandum of appeal dated 15 th July, 2013, the appellants
listed 22 grounds of appeal which can be summarized as follows: that the
learned Judge erred in upholding an alleged compulsory acquisition that
did not comply with the Land Acquisition Act (now repealed); erred in
failing to find that the width of the road along their properties was 60
metres and not 80 metres; erred in finding that the appellants had no
locus standi to impugn the alleged compulsory acquisition; erred in
failing to find that there was no way the appellants could have known that
the width of the road abutting their properties was 80 metres wide as
opposed to 60 metres wide and finally, in failing to uphold the sanctity of
title.

The appeal came before us for plenary hearing on 4th December, 2018.
The appellants were represented by two learned Senior Counsel Mr.
Oraro and Professor Githu Muigai who teamed up with learned counsel
Mr. Imende. The 1st, 2nd and 3rd respondents were represented by
learned counsel Mr. Mutinda together with Mr. Marwa whilst learned
counsel, Mr. Mulekyo appeared for the 4th and 5th respondents.
In urging the appeal, Mr. Oraro contended that the process of the
alleged compulsory acquisition by the respondents was not completed;
that by failure to complete the process of the acquisition, any prospective
buyer had no notice that the width of the road was 80 metres; that the
appellants’ challenge of the alleged compulsory acquisition was on the
basis that the survey plans held by the Directorate of Survey showed that
the width of the road was 60 metres and not 80 metres; that the trial
judge failed to uphold the sanctity of title and finally, in finding that public
land acquired through compulsory acquisition is an overriding interest.
Several authorities were cited in support of counsel’s submission. I
shall refer to some of these authorities later in this judgment.

Prof. Githu Muigai associated himself with Mr. Oraros’s submissions.

It was his view that there was no compulsory acquisition; that the
acquisition if any, was flawed and that neither was it completed; that

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the appellants are bona fide purchasers for value without notice. He
reiterated that the records held by the Directorate of Survey and the
Ministry of Lands show that the width of the road is 60 metres. He relied
on the persuasive High Court decision of EUNICE GRACE NJAMBI
KAMAU & ANOTHER VS. ATTORNEY GENERAL & FIVE OTHERS
[2013] eKLR for the proposition that land that is compulsorily acquired
must be vested in Government as it is only then that a third party would
know of the Government’s interest.
In opposing the appeal, Mr. Mutinda contended that the appellants’
titles are tainted with illegality; that the appellants’ cause of action is time
barred under Section 7 of the Limitation of Actions Act and that the road
reserve on the adjoining properties is 80 metres. It was Mr. Mutinda’s
further assertion that Article 40 of the Constitution does not give
protection to property unlawfully acquired.
Taking his turn in opposing the appeal, Mr. Mulekyo submitted that the
Government paid compensation for the 80 metres width road reserve and
hence the appellants’ claim of the road being 60 metres falls by the
wayside. Counsel concluded his submissions with the assertion that the
width of the road reserve on the adjoining plots is 80 metres. He placed
reliance on this Court’s decision of RAMJI GUDKA vs. MINISTER OF
ROADS & ANOTHER EXPARTE VERANDRA RAMJI GUDKA HCCC JR
ELC NO. 32 OF 2009, for the proposition that public interest prevails vis-
à-vis private interest, the appellants’ interest herein being of a private
nature.

The appeal before us is a first appeal hence it is the duty of this Court to
re- analyze, re-assess and re-evaluate the record in light of the rival
submissions set out above and reach its own findings and conclusions
thereon. In Abok James Odera & Associates vs. John Patrick Machira
& Co. Advocates [2013 eKLR, this Court stated as regards the duty of a
first appellate court:
“This is a first appeal, we are reminded of our primary role as
a first appellate court namely, to re-evaluate, re-assess, and
re-analyze the extracts on the record and then determine
whether the conclusions reached by the learned trial Judge are
to stand or not and give reasons either way. See the case of
Kenya Ports Authority vs. Kustron (Kenya) Limited
[2000] 2 EA, 212 where the Court of Appeal held, inter alia,
that:
“On a first appeal from the High Court, the Court of
Appeal should consider the evidence, evaluate it itself
and draw its own conclusions though it should always
bear in mind that it has neither seen nor heard the
witnesses and should make due allowance in that
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respect. Secondly that the responsibility of the court is

to rule on the evidence on record and not to introduce
extraneous matters not dealt with by the parties in the
evidence”

As stated earlier, it is an undisputed fact that in the 1970 s, the

Government set out to acquire varying portions of land from the original
owners of land within what is now Runda Estate for purposes of
construction of the Northern By-Pass. It is also not disputed that notices to
this effect were placed in the Kenya Gazette, and an inquiry meeting with
a view to compensation was held. The respondents maintained that
thereafter payments by way of compensation were made and the portions
compulsorily acquired became alienated as a road reserve measuring 80
metres.
The appellants’ contention, however, is that the respondents failed
to comply with the provisions of the Land Acquisition Act in its intended
acquisition of land for the construction of the Northern By-Pass. It was
their contention that at the time they purchased their plots, there was no
evidence of compulsory acquisition of an 80-meter road reserve. Given
this contestation, it is imperative to examine the provisions of the Land
Acquisition Act on compulsory acquisition. On my part, I am in agreement
with the appellants’ assertion that the Land Acquisition Act provided an
elaborate procedure of land acquisition. Section 17, 19 (1) and 20 of
the Act provided as follows:

Section 17:
“17. Where part only of the land comprised in
documents of title has been acquired, the
Commissioner shall, as soon as practicable, cause a
final survey to be made of all the land acquired”.
(Emphasis supplied)
Section 19 (1):
“(19) (1) After the award has been made, the
Commissioner shall (emphasis added) take possession of
the land by serving on every person interested in the
land a notice that on a specified day which shall not be
later than sixty days after the award has been made,
possession of the land and the title to the land will vest
in the Government”
Section 20:
“(20) (1) where the documents evidencing title to the
land acquired have not been previously delivered to

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him, the Commissioner shall (emphasis added) in writing

require the person having possession of the documents
of title to deliver them to the Registrar, and thereupon
that person shall forthwith deliver the documents to
the Registrar.
(2) On receipt of the documents of the title, the
Registrar shall – (emphasis added)
(a) Where the whole of the land comprised in the
documents has been acquired, cancel the documents;
(b) where only part of the land comprised in the
documents has been acquired, record upon the
documents that so much of the land has been acquired
under this Act and thereafter return the documents to
the person by whom they were delivered and upon such
receipts, or if the documents are not forthcoming,
cause an entry to be made in the register recording the
acquisition of the land under this Act’. (Emphasis
supplied)

In the instant appeal, it is common ground that the records held by the
Directorate of Survey indicate that the appellants’ properties abut a road
whose width is 60 metres. It is in view of this that the appellants faulted
the respondents for failure to complete the process of compulsory
acquisition. The Commissioner of Lands was faulted for failure to cause a
final survey of all the land acquired (Section 17 of the Land
Acquisition Act); for failure to formally take possession of the acquired
land (Section 19 of the Land Acquisition Act) and for failure to call for
surrender of the title documents (they were to be surrendered to
the Land Registrar, Section 20 (1) of the Land Acquisition Act). They
also faulted the Land Registrar for failure to endorse on the titles of the
original owners the portions of land hived off from their parcels of land
for purposes of construction and setting aside of a road reserve
constituting the Northern By-Pass (Section 20 (2) (b) of the Land
Acquisition Act). The Land Registrar was also faulted for failure to make
entries in the register attesting to the compulsory acquisition. In the
persuasive High Court decision of EUNICE GRACE NJAMBI KAMAU &
ANOTHER VS. THE ATTORNEY GENERAL & 5 OTHERS (supra), the
appellants had moved to challenge gazette notices numbers 3437 and
3438 of 20th November, 1970. These are the same gazette notices that
are the genesis of the dispute herein. The issues raised therein are the
same issues raised in this appeal. In his findings, Mutungi, J held as
follows:-

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“The language of Section 19 and 20 of the Act is

couched in mandatory terms attesting to the
significance of the taking of possession and vesting of
the acquired land in the government … Quite clearly,
observance of Section 19 (3) and Section 20 of the Act
would serve to notify third parties that the government
has acquired an interest in the subject land particularly
because the Registrar of Lands would have been
notified and a relevant entry would be made on the
land register signifying the interests of the
government”.
In another persuasive decision of the High Court, VIRENDRA RAMJI
GUDKA & 3 OTHERS vs. ATTORNEY GENERAL [2014] eKLR
Mutungi, J, rendered himself as follows:
“The fact is there were no records of the acquisition at
the Lands Registry and or with the Director of Survey.
In my view, a Gazette Notice for the intended
acquisition alone cannot effectuate a compulsory
acquisition and in order to effectuate the acquisition,
the procedure for acquisition as under the Act has to be
adhered to. The Gazette notice for the acquisition and
the Gazette Notice notifying the payment of the
compensation can only affect the parties directly
affected such as the registered proprietors at the time
the notice of compulsory acquisition is given. Third
parties dealing with the acquired land can only be put
on notice if the process of acquisition is completed and
the provisions of Section 19 and 20 of the Act complied
with.”
and

“…..that the Gazette Notice …… relied upon by the

defendant to prove that the suit land was compulsorily
acquired or formed part of the portion compulsorily
acquired by the government ... is insufficient to prove
the acquisition”
Similar sentiments are found in this Court’s decision of COMMISSIONER
OF LANDS & ANOTHER VS. COASTAL AQUACULTURE LIMITED
[2006] 1 KLR (E&L) 266. PALL, JA whilst referring to the judgment of
Ringera, J (as he then was) from which an appeal arose, at page 269
stated:
“I agree with the learned judge that for a successful
compulsory acquisition, the requirements of the
Constitution and of the Act must be strictly complied
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with and that if there is full compliance with the law,

compulsory acquisition cannot be interfered with”.
(Emphasis added)
Similarly, in this Court’s decision of MUTUMA ANGAINE VS. M’MARETE
M’MURONGA [2011] eKLR, it was stated:
“… it is trite law that when a person’s property is
forcefully acquired, the government must fully comply
with the law and follow the laid down procedure strictly
and meticulously. No person’s property may be
acquired compulsorily without due process”.
Given the above case law, it is clear that the courts have stated that it is
not sufficient to gazette notices of an intended acquisition, call for an
inquiry meeting with a view to compensation, proceed to compensate
those affected and then stop at that without compliance with the
mandatory provisions of the Land Acquisition Act. The essence of these
mandatory provisions is to put on notice third parties.

Suffice to state, had the Commissioner of Lands called for the titles of the
previous land owners and a record made thereof that the land acquired for
the construction of the Northern By-Pass was 80 metres, and had the titles
of the original owners been recalled to effectuate the necessary changes,
this would have served as notice to the appellants and any other third
party of the acquisition. The long and short of it is that the appellants
herein had no actual or constructive notice of the compulsory
acquisition and neither can it also be said that they had imputed notice.
In respect to the survey, it is not in dispute that no final survey was
carried out to map out the road reserve vis-a-vis the remainder of parcels
of land of the original owners. Indeed, the records held by the Directorate
of Survey did not attest to the acquisition of an 80 metres wide road. On
the contrary, the survey plans which were approved by the Director of
Survey (after the subdivisions on behalf of the original owners) indicated
that the width of the road was 60 metres.
In view of the fact that the 3 rd respondent and the Directorate of Survey
failed to complete the process of compulsory acquisition as provided in the
Act, a search at the Lands office could not reveal that the width of the
road was 80 metres. The respondents do not deny that the official
searches carried out by the appellants and which searches are based on
the records held at the Lands Office, indicated that their plots abutted a
road reserve whose width was 60 metres. The respondents and in
particular, the 3rd respondent having failed to comply with the mandatory
provisions of the Land Acquisition Act have themselves to blame for the
non-compliance. I am therefore, of the persuasion that it would be unjust
and unfair to subject the appellants to the harsh realities of inaction and/or
malfeasance on the part of public officers. In my view, Government must
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bear responsibility for failings of its officers and may wish to consider
alternative ways of ameliorating the consequences of failure on the part of
its officers such as building an over-pass or an under-pass as part of
the Northern By-Pass, instead of razing homes belonging to the
appellants.

The learned trial Judge was of the view that the appellants “…. with due
diligence…..” would …. “have established the correct width of the
road as 80 metres…...”. She came to this conclusion on the basis that:
“[95] From even a cursory analysis of the various
survey maps produced by the parties in support of their
respective positions, and from the overall evidence
before me, it seems to me that certain facts emerging
therefrom make the contentions by the petitioner
improbable: that L.R. 7785/10, whose survey was done
in 1978, had a road reserve of 80 metres; that the
petitioners had access to F/R 141/14 (‘KK5’) dated 4 th
April, 1978 with a road reserve of 80 metres; that , as
testified by Mr. Murungu and indirectly corroborated by
Mr. Obel in his report, titles registered under the
Registration of titles Act had fixed boundaries which
could be scientifically established by use of
coordinates; and as conceded somewhat reluctantly by
Mr. Obel in his testimony before the court, that in
carrying out a survey, a surveyor prepares the plan
using survey control points, which are existing
beacons; and that in the case of L.R. 7785/9, the
nearest survey plan existing for which the surveyor
could use beacons was the one for L.R. 7785/10, (in
particular becon ‘RK5’, which was at the boundary
between L.R. 7785/10 and L.R. 7785/9) and has a road
reserve of 80 metres”.

With all due respect to the learned judge, it is my view that the appellants
were not expected to ascertain the width of the road by checking on the
adjoining properties. But even if this was to be the case, there was
evidence that the width of the road was not 80 metres on the entire
stretch. In particular, the width of the road near Windsor Golf Hotel
is 60 metres and not 80 metres. The judge appreciated as much
when she stated:
“[75] The construction of the Northern Bypass at those
portions of it adjacent to the subject property is now
complete. The Bypass has an 80 metres reserve in the
portions adjoining the petitioners’ properties, but 60
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metres at the subject property. After the junction with

Kiambu Road, the Bypass again narrows to 60 meters.
During the site visit, the 5th respondent stated that
this difference was accounted for by the fact that the
land at the Windsor junction was acquired later and
only 60 metres were acquired”.
Given that the 3rd respondent is the legal and sole repository of land
records, the appellants cannot be faulted for not ascertaining the width of
the road in the adjoining properties as it was sufficient to place reliance on
the official searches carried out at the lands office. In any event, and as
indicated above, the size of the Northern By-Pass was not uniform on the
entire stretch.

There was also the finding by the trial court that the appellants could not
challenge the process of compulsory acquisition of 1970 as there was no
privity of contract and further that their cause of action (if any) was time
barred. It is common ground that, the appellants are purchasers of land
abutting the Northern
By-Pass. It is also common ground that they hold titles of these properties
abutting the Northern By-pass. As indicated above, (and this was not
denied) the official records held by the Director of Survey and the
Commissioner of Lands showed that the width of the road where their
properties abut the Northern By-Pass is 60 metres. Any attempt to widen
the road to 80 metres, would affect the appellants’ properties. To this
extent, I find that the appellants had every right to challenge the attempt
by the respondents to interfere with their respective properties. The
appellants did not contest the compulsory acquisition of the 1970s but
they resisted attempts to excise parts of their properties so as to have an
80 metres wide road.
Consequently, the contention that their cause of action was time barred is
neither here nor there. I am of the considered opinion that the appellants
did not need to bring themselves within the doctrine of privity of contract
so as to challenge what on their part amounted to an encroachment of
their properties which encroachment was a violation of the appellants’
constitutional rights to private property as enshrined in Article 40 of the
Constitution.

Tied to this is the 4th respondent’s contention that the appellants cannot
take refuge in Article 40 of the Constitution, in view of Article 40 (6)
which provides that:
“(6) The rights under this Article do not extent to any
property that has been found to have been unlawfully
acquired”.

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The 4th respondent relied on this Court’s decision of MORRIS NGUNDO

VS. LUCY JOAN NYAKI & ANOTHER [2016] eKLR wherein it was held:
“Article 40 of the Constitution provides the right to
property. Article 40 (6) provides that the rights under
the said Article do not extend to any property that is
found to have been unlawfully acquired. Article 40 must
be read as a whole so that protection afforded therein
which protect the right to property must be held to
exclude property found to be unlawfully acquired under
Article 40 (6)”. (emphasis added)
How have the courts interpreted the above constitutional provision" In
VEKARIYA INVESTMENTS LIMITED KENYA AIRPORTS AUTHORITY
& 2 OTHERS [2014] eKLR, the Court held that:
“a finding of unlawful acquisition referred to in Article
40 (6) of the Constitution “… must be through a legally
established process and not by whim or revocation of
the Gazette Notice as the Commission of Lands
purported to do and definitely not by forceful taking of
possession”

In the case of KURIA GREENS LIMITED VS. REGISTRAR OF TITLES &

ANOTHER [2011] eKLR, Musinga, J (as he then was) expressed himself
thus:
“if the respondents were satisfied that the suit land
had been unlawfully alienated and that it was in the
interest of the public that the land reverts to the state
…. appropriate notice ought to have been given to the
petitioner and thereafter the respondents ought to
have exercised any of the following options:-
a. Initiate the process of compulsory acquisition of the
suit land and thus pay full and prompt compensation to
the petitioner; or
b. File a suit in the High Court challenging the
petitioner’s title and await its determination one way
or the other”.
As urged by Prof. Muigai on behalf of the appellants, the right to
property as enshrined in Article 40 cannot be taken away whimsically.
Article 40 (6) provides that “the rights under this Article do not
extend to any property that has been found (emphasis added) to
have been unlawfully acquired”. The wording of Article 40(6) is that
there must be a ‘finding’. In the absence of a finding, it would be
preposterous for the respondents to make such a ‘finding’ by
themselves and proceed to forceful take the appellant’s properties. If this
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were to be the case, every Kenyan would have every reason to be wary
and fearful as no one would know the time and hour when he/she would
be visited by a bulldozer purring like a tiger and raring to tear down their
homes. If the forceful acquisition were to be sanctioned without any prior
‘finding’ being made, then the rule of law will be replaced by the rule of
the jungle. I find that in the absence of a “finding", the respondents’
action of earmarking parts of the appellants’ properties for extension of
the Northern By-pass is premature.

In his submissions on behalf of the 1 st, 2nd and 3rd respondent, Mr.
Mutinda urged us to find that private interest is subservient to public
interest. He was of the view that inspite of the road having been
constructed to completion, (the built area is now 12 metres), there will be
need to expand it in future. He relied on the decision of PATRICK
THOITHI KANYUIRA VS. KENYA AIRPORTS AUTHORITY [2017] eKLR
wherein this Court in making its determination in respect of land
compulsorily acquired for the expansion of Wilson Airport stated:
“In this case, the public interest rights of the larger
number of people who are likely to use Wilson Airport
triumphed the individual right of the appellant to own
and enjoy his property under Article 40 of the
Constitution.”
As to the contention that public rights have primacy over private rights,
case law demonstrates that that is not always the case. In KENYA
NATIONAL HIGHWAY AUTHORITY VS SHALIEN MASOO MUGHAL
AND 5 OTHERS, [2017] eKLR, Waki, JA in reference to CAPITAL
MARKETS AUTHORITY VS JEREMIAH GITAU KIEREINI & ANOTHER
[2014] eKLR stated:

“……. as one of the Judges who decided the case,

I correct the impression that there was a general
categorical statement on the primacy of individual
rights over public interest”.
I agree. It is not always true that public interest takes supremacy over
private and/or individual rights, as these are competing rights that must
be weighed against each other. Furthermore, in the instant matter, it is
clear that there was a flawed and /or incomplete process of compulsory
acquisition that cannot be said to have created any public right.
As regards the respondents’ contention that there was an overriding
interest on the appellant’s property, Section 30 of the RLA provides as
follows:
“30. Unless the contrary is expressed in the register,
all registered land shall be subject to such of the
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following overriding interests as may for the time being

subsist and affect the same, without their being noted
on the register-
(a) rights of way, rights of water and profits subsisting
at the time of first registration under this Act;
(b) natural rights of light, air, water and support;
(c) rights of compulsory acquisition, resumption, entry,
search and user conferred by any other written law;
(d) leases or agreements for leases for a term not
exceeding two years, periodic tenancies and
indeterminate tenancies within the meaning of section
46;

(e) charges for unpaid rates and other moneys which,

without reference to registration under this Act, are
expressly declared by any written law to be a charge
upon land;
(f) rights acquired or in process of being acquired by
virtue any written law relating to the limitation of
actions or by prescription;
(g) the rights of a person in possession or actual
occupation of land to which he is entitled in right only
of such possession or occupation, save where inquiry is
made of such person and the rights are not disclosed;
(h) electric supply lines, telephone and telegraph lines
or poles, pipelines, aqueducts, canals, weirs and dams
erected, constructed or laid in pursuance or by virtue of
any power conferred by any written law;
Provided that the Registrar may direct registration of
any of the liabilities, rights and interest hereinbefore
defined in such manner as he thinks fit.”
An acquisition of land under the Land Acquisition Act was an interest
that was to be registered pursuant to the Land Acquisition Act. Section
20 (2) (b) of the Land Acquisition Act provide:
“20 (2) (b) where only part of the land comprised in …
cause an entry to be made in the register recording the
acquisition of the land under this Act”.
The said provision expressly provided that compulsory acquisition was a
registrable interest. An overriding interest is an interest that does not find
itself on the register. It cannot, therefore, be said that since the

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Government failed to register the compulsory acquisition, the fall back

situation is that there existed an overriding interest.

The other ground of appeal raised by the appellants is that the trial court
failed to find that they are bona fide purchasers for value without notice
and that their titles are indefeasible. The Black’s Law Dictionary 8th
Edition defines a bona fide purchaser as:
“One who buys something for value without notice of
another’s claim to the property and without actual or
constructive notice of any defects in or infirmities,
claims or equities against the seller’s title; one who has
in good faith paid valuable consideration for property
without notice of prior adverse claims”.
As stated earlier, the appellants are holders of 99 year leases and or titles
issued under the RTA or the RLA. Section 23 (1) of the RTA provides as
follows:
“23 (1) the certificate of title issued by the registrar to
a purchaser of land upon a transfer or transmission by
the proprietor thereof shall be taken by all courts as
conclusive evidence that the person named therein as
proprietor of the land is the absolute and indefeasible
owner thereof, subject to the encumbrances,
easements, restrictions and conditions therein or
endorsed thereon, and the title of that proprietor shall
not be subject to challenge, except on the ground of
fraud or misrepresentation to which he is proved to be
a party”.
The Registered Land Act (RLA) made similar provisions as those found in
Section 23 (1) of the RTA. Section 28 of the RLA provided:

“The rights of a proprietor, whether acquired on first

registration or whether acquired subsequently for
valuable consideration or by an order of Court, shall not
be liable to be defeated except as provided in this Act,
and shall be held by the proprietor, together with all
privileges and appurtenances belonging thereto, free
from all other interests and claim whatsoever, but
subject …”
The indefeasibility of title was also provided in Section 143 of the RLA
which stated thus:
“143. (1) Subject to sub-section (2) of this section, the
court may order rectification of the register by

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directing that any registration be cancelled or amended

where it is satisfied that any registration (other than a
first registration) has been obtained, made or omitted
by fraud or mistake”
Be that as it may, one of the greatest challenges faced by the Courts has
been the doctrine of “sanctity of title” as provided in Section 23 of the
RTA, and Sections 28 and 143 of the RLA vis-à-vis unlawful and/or
irregular acquisition of land. This challenge was aptly summed up by
Nyamu, J (as he then was) in MUREITHI & 2 OTHERS (FOR MBARI YA
MURATHIMI CLAN VS. ATTORNEY GENERAL & 8 OTHERS, NAIROBI
H M C A NO. 158 OF 2005 (2006) L KLR 443 when he put forth the
question:
“How are the Courts going to deal with land grabbers
who stare at your face and wave to you a title of the
grabbed land and loudly plead the principles of
indefeasibility of title”.

Similar sentiments were expressed by Waki, J.A in KENYA NATIONAL

HIGHWAY AUTHORITY VS. SHALIEN MASOOD MUGHAL & 5 OTHERS
C.A. NO. 327 OF 2014 (Supra), when he expressed himself as follows:
“…that the Courts of this country cannot countenance
a situation where the public good is subjugated to and
sacrificed at the multi furious altars of private interests
nor will they sit idly by and see land cartels, brief case
investors and speculators (emphasis added) with high
connection use public land as tickets to individual
largesse in the wake of public pain or inconvenience.
Government cannot compulsory acquire land only for it
to be gifted or otherwise conveyed to private
individuals who have access to the shakers and movers
(emphasis added) for purposes of selling them off to line
their pockets”.
In CHEMEI INVESTMENTS LIMITED VS. THE ATTORNEY GENERAL &
OTHERS NAIROBI PETITION NO. 94 OF 2005 at para.64, this Court
held:
“The Constitution protects a higher value, that of
integrity and the rule of law. These values cannot be
side stepped by imposing legal blinders based on
indefeasibility. I therefore adopt the sentiments of the
court in the case of Milankumar Shah and 2 others vs.
City Council of Nairobi & Attorney General (Nairobi HCC
Suit No. 1024 of 2005 (05) where the Court stated as
follows, “we hold that the registration of title to land is
absolute and indefeasible to the extent, firstly, that the
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creation of such title was in accordance with the

applicable law and secondly, where it is demonstrated
to a degree higher than the balance of probability that
such registration was procured through persons or
body which claims and relies on that principle has not
himself or itself been part of a cartel (emphasis added)
which schemed to disregard the applicable law and the
public interest.

The issue of the rights of an innocent purchaser for value without notice
vis- à-vis the phenomenon known in this country as “land grabbing”, has
indeed been a troublesome issue. However, it would appear that the
courts are slowly but surely defining a bona fide purchaser for value
without notice as one who has not been part of, “… land cartels, brief
case investors and speculators or private individuals who have
access to shakers and movers” (See KENYA NATIONAL HIGHWAY
AUTHORITY VS. SHALIEN MASOO MUGHAL & 5 OTHERS (supra) and
that whilst relying on the principle of indefeasibility of title, one has to
show:
“…that the creation of such titles was in accordance
with the applicable law. …that such registration was
procured through persons or body which claims and
relies on that principle, has not himself been part of a
cartel which seemed to disregard the applicable law
and public interest”. (See CHEMEI INVESTMENTS
LIMITED VS THE ATTORNEY GENERAL & OTHERS (supra).
In the recent decision of ARTHI HIGHWAY DEVELOPERS LIMITED vs.
WEST END BUTCHERY LIMITED & 6 OTHERS [2015] eKLR, this Court
whilst finding against persons who had been registered as owners stated:
“Kamau testified that he knew about the challenge
relating to the Title of the disputed land in December,
2006. It is our finding that he knew about this in March,
2006. For a purchaser who claims that due diligence
was carried out at all stages, we find it difficult to
believe that there was no explanation sought from the
Registrar of Titles about the mysterious disappearance
of the original Deed file from the strong room of the
land registry. It was common knowledge, and well
documented at the time, that the land market in Kenya
was a minefield and only a foolhardy investor would
purchase land with the alacrity of a potato dealer in
Wakulima market. Perhaps the provisions of the new
Constitution 2010 and the Land Registration Act, 2012
will have a positive impact for land investors in future.
In this matter Arthi was prepared to seek and accept a
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Deed of Indemnity from the two fraudsters to have the

transfer registered urgently. (Emphasis added)

Kamau and the Directors of Arthi were informed by

Criminal Investigation Department (CID) officers, “at
the end of 2006”, that “some Asians from Westlands
were claiming the land belonged to them…” (Emphasis
added)
“Furthermore, within two months of registration of the
Transfer, in February, 2007, the suit was filed and the
issues of fraud in respect of the disputed land became
clear to Arthi. Despite that knowledge, (Emphasis added).
Arthi proceeded with the subdivision and sale of the
disputed land to other parties. We do not take seriously
its feigned assertion that it was not aware of what was
going on in court despite having an Advocate on record
throughout. This is the conduct which the trial court
deprecated and found it amounted to complicity in the
fraud and perpetuation of it. (Emphasis added) There was
sufficient basis for that finding and we do not consider
it as a new concept unknown to law as submitted by
Mr. Mwangi. We do not disturb that finding. Fraud was
proved, and Arthi, as well as the Registrar of Titles
were party to it. We so find”.
From the above decision, it is clear that the court is bringing out the
salient features of what does not constitute bona fides, such as knowledge
that there was:
“the mysterious disappearance of the original deed
file, …there were Asians from Westlands who claimed
the land was theirs, …issues of fraud had been raised in
a suit in respect of the land,”

and that in spite of all these, the appellants purported to buy the land. It
is not difficult to see why the court declined the appellants’ invitation that
they were bona fide purchasers for value without notice in that appeal
(ARTHI HIGHWAY DEVELOPERS LTD VS. WEST END BUTCHERY LTD
& 6 OTHERS (supra).
In another decision of this Court, DICKSON NDEGWA MBUGUA VS.
CITY COUNCIL OF NAIROBI & 3 OTHERS, NBI CA NO. 254 OF 2010,
M’Inoti, JA in his dissenting judgment stated:
“Section 143 of the Act provided the circumstances under
which the rights of a registered proprietor could be defeated,

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resulting in rectification of the register. It is apposite to quote

the provision in full”
“143(1) Subject to subsection (2), the court may order
rectification of the register by directing that any
registration be cancelled or amended where it is
satisfied that any registration (other than a first
registration) was obtained by fraud or mistake”
(2) The register shall not be rectified so as to affect
the tittle of a proprietor who is in possession and
acquired the land, lease or charge for valuable
consideration, unless such proprietor had knowledge of
the omission, fraud or mistake in consequence of which
the rectification is sought, or caused such omission,
fraud or mistake or substantially contributed to it by
his act, neglect or default” (Emphasis added).
The learned Judge (M’Inoti, J.A) proceeded to state:
“For the court to order rectification of the register, it
had to be satisfied that the 3 rd and 4th respondents had
knowledge of the fraud alleged by the appellant or that
they caused or substantially contributed to it by their
neglect or default. Having found that they had no such
knowledge and did not cause the fraud or substantially
contribute to it by their neglect or default, I cannot see
how their title can be impeached or nullified under the
previous legal regime. To nullify their title, we would
have to ignore completely the express terms of section
143(2) of the repealed Act, which I believe we are not
entitled to do. This Court did not shy away from
nullifying title to land where it was satisfied that the
proprietor was a party to the fraud pursuant to which
he was registered as proprietor or where he had
contributed to the fraud or mistake by his acts of
neglect or default, perhaps best encapsulated in the
Court’s quip in Athi Highway Developers Ltd Vs. West
End Butchery Ltd & 6 Others (2015) eKLR that ‘only a
foolhardy investor would purchase land with the
alacrity of a potato dealer in Wakulima market.’ In
Chemei Investment Ltd Vs. Attorney General & 2
Others, CA No. 349 of 2012, this Court upheld an order
of the High Court nullifying a title after it found that
the proprietor was not an innocent purchaser but was
instead an active participant in the fraud pursuant to
which he was registered as the proprietor of the land
earmarked for a public hospital. Similarly, in Moses
Lutomia Washiali Vs Zephania Ngaira Agwenye &
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Another, CA No. 298 of 2013, this court upheld the

nullification of a title after it found that the proprietor
had actual notice that the purported seller did not have
good title to the land”

The dissenting judgment of my brother, M’Inoti, JA, underscores the fact

that a purchaser lacks bona fides if he is a party to a fraud, or had
knowledge of the fraud or that he/she substantially contributed to the
fraud.
The learned Judge (M’Inoti, J.A) referred to the decision of DENIS NOEL
MUKHULO OCHWADA & ANOTHER VS. ELIZABETH MURUNGARI
NJOROGE & ANOTHER, CA NO. 139 OF 2013, wherein this Court
declined to nullify title after it found that the registered owner was not
party to the fraud that was perpetrated by the vendor who sold the land to
him. In that decision, this Court stated:

“As regards fraud on the part of the 2 nd appellant, we

are not able to find any evidence on record in that
regard. He purchased the property after it was
advertised in the East African Standard Newspaper of
13th August 2003. He paid to the 1 st appellant valuable
consideration of Kshs 650, 000.00. Prior to registration
as proprietor, he conducted a search, which showed
that the property was registered in the name of the 1 st
appellant and was free from all encumbrances. ….He
took possession of the suit property and developed it
with money raised by a charge over the suit property in
favour of Standard Chartered Bank Kenya Ltd. Section
143
(2) which prohibits rectification of the register where
the proprietor is in possession and acquired the land
for valuable consideration without knowledge of, or
having caused by his act neglect or default, the
omission, fraud or mistake on the basis of which
rectification of the register is sought. This protection,
as we have already noted, is informed by the guarantee
in the Torrens land registration system that the entries
in the register are correct and members of the public
can freely and securely rely on them. (See Charles
Karathe Kiarie vs. Administrators of the Estate of John
Wallace Mathare (Deceased) &5 Others, CA No. Sup. 12
of 2013)”.
Closer home in the Uganda Court of Appeal decision of KATENDE vs.
HARIDAS AND COMPANY LIMITED cited with approval in Kenya High
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Court Case of LAWRENCE MUKIRI VS. ATTORNEY GENERAL & 4

OTHERS [2013] EKLR, the court defined what amounts to a “bona fide”
purchaser for value thus:
“A bona fide purchaser is a person who honestly
intends to purchase the property offered for sale and
does not intend to acquire it wrongly. For a purchaser
to successfully rely on the bona fide doctrine he must
prove the following:

vi. He holds a certificate of title,

vii. He purchased the property in good faith,
viii. He had no knowledge of the fraud,
ix. He purchased for valuable consideration,
x. The vendors had apparent valid title,
xi. He purchased without notice of any fraud,
xii. He was not party to any fraud”.
In my view, the appellants herein purchased their properties in good faith.
They purchased them for valuable consideration, the original owners (who
were private entities) had apparent valid title, there was no notice of any
fraud or third-party interests, no fraud was alleged against the appellants
nor was it shown they were active participants in any fraud. The trial judge
appreciated as much when she stated:
“[105] ….The petitioners are, in my view, unwitting
victims of landowners (emphasis added) who sold
properties to them without having regard to the public
interest in the portions of their properties that had
been compulsorily acquired for construction of the
Northern Bypass corridor, and of surveyors who have
prepared subdivision plans either in ignorance or
disregard of the existing road corridor. Whatever the
case, I can find no basis for alleging violation of the
petitioners’ constitutional right to property by the
respondents”.
If it be true that the appellants were not involved in the preparation of the
subdivisions of the remaining portions of land (after the intended
compulsory acquisition), if it be true that the appellants purchased their
various portions of land after the completion of a private survey
commissioned by the original ownersand which survey was approved by
the Director of Survey and leases/titles issued to the appellants by the
Commissioner of Lands and /or the Registrar of Lands and 60 metres
thereof set aside as a road-reserve, then the description given to them by
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the trial judge as “unwitting victims” aptly defined the appellants.

Indeed, nowhere was it suggested that the appellants were land cartels,
brief case investors and speculators with high connections and that there
have access to shakers and movers of this country. On the contrary, they
appear to be ordinary Kenyans who have worked hard and from the
sweat of their brows have made heavy investments. On my part, I
think we must face the monster of land grabbing vis-à- visa indefeasibility
of title by looking at the circumstances of each case and naming and
shaming the land grabbers but not bona fide purchasers for value without
notice. However, as stated above, each case must be determined based
on its own peculiar circumstances, lest we sanitize illegally acquired land.
In EUNICE GRACE NJAMBI KAMAU & ANOTHER VS. THE ATTORNEY
GENERAL, Mutungi, J expressed himself therein:

“ In my view, the determination whether or not a title

is illegal or unlawful has to take into account the
circumstances and the process through which the title
was obtained and/or acquired and provided the title is
regularly issued by the duly authorized officers entitled
to do so by the government, it is my opinion that such a
title can only be impugned under Article 40(6) of the
Constitution by it being established that the title was
unlawfully obtained or acquired by the person shown to
be registered as the owner. The doctrine of the sanctity
of title is anchored on the premise that a registered
owner of land who holds a certificate of title that is
duly registered is prima facie the owner of that
property and the title he holds is indefeasible unless
the title is shown to have been unlawfully acquired
and/or procured. My understanding is that for the title
of a registered owner to be impugned on account of
fraud such an owner must have had knowledge that the
title was fraudulently obtained or procured and/or the
owner was party to the fraud. The petitioners have
relied on the indefeasibility of the title they hold in
respect of title number’’.

The appellants herein conducted searches and found that titles of the
original owners were free of encumbrances, that the records held by
the Commissioner of Lands and the Survey office showed that the width of
the road was 60 metres (and not 80 metres), they took possession of the
plots and developed them.
Again, no amount of due diligence would have created a suspicion that
the plots that the appellants were buying had been alienated. Why do I
say so" It should be remembered that the original registered owners of the
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land were private entities. The Government moved in the 1970s with
intent to compulsory acquire various portions of land belonging to the
original owners. However, the process of the intended compulsory
acquisition was not completed. The resultant effect is that any search
and /or due diligence would reveal that the appellants purchased property
from private entities (and at no time had the land, the subject of this
appeal been vested in the public), who had caused sub-divisions that
demarcated a 60 metre wide road. These subdivisions were approved by
the Directorate of Survey and individual titles/leases issued to the
respective purchasers by the Registrar of Titles and /or the
Commissioner of Lands. It is in view of the above that I have come to the
conclusion that the appellants’ titles were protected by the repealed
Section 23 of the RTA and Section 143 of the RLA.

For the foregoing reasons, I find that the appeal herein is for allowing in
terms proposed by Ouko, the President of the Court of Appeal in his
Judgment.
Dated and Delivered at Nairobi this 7th day of June, 2019.
F. SICHALE, J.A
....................................
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR

JUDGMENT OF OTIENO-ODEK, JA
1. The determination of the dispute in this appeal lies in the answer to the
following straight forward questions: if a person sells you land that is a
public road, can you acquire private proprietary interest and title thereto"
What if he/she sells you land that is a road reserve" What if you have no
knowledge or means of knowing the land is reserved as a public road" In
any of these scenarios, does the vendor have any land or proprietary
interest to sell" In considering the answers to these questions, it should be
borne in mind that it is entitlement to property that gives rise to title to
property; it is not title that gives rise to entitlement to property. In any of
the above scenarios, the vendor must have entitlement to the land before
he/she can pass any title or proprietary interest to a bona fide purchaser
for value without notice.

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2. This appeal evinces the issue of government affectation of land and

quality of an indefeasible title. The central issue is whether or not the
appellants’ titles to their suit properties is free from government
affectation.
3. Government affectation of land is an adverse interest or proposal by
government that affects third party proprietary interest in land. Examples
include a proposal to compulsorily acquire a right or interest in a parcel of
land in whole or part; or proposals for re-alignment, widening, sitting or
alteration of the level of a road, railway, airport or other public utility or
environment; as well as proposal relating to planning and control of
development on land.
4. Quality of title refers to inviolability and marketability of title. A
marketable title is a title that is free from any defects or clouds that a
reasonable buyer would find objectionable. A title that is free from any
encumbrance is of high quality, inviolability and marketability; it is an
absolute or perfect title free from any deficiencies. In contrast, a title that
has legal deficiencies or questions over its acquisition or a title subject to
an encumbrance or government affectation is of low quality and low
marketability.

5. The dispute in this appeal is an apparent encroachment by the

appellants on a public road reserve that had ostensibly been compulsorily
acquired by the Government in 1970. The disputed public road reserve
abuts all that parcel of land originally known as Mimosa Plantation LR
No. 7785/9. The original parcel was sub-divided into 296 plots that now
form Mimosa Estate in Runda within the County of Nairobi. The
appellants purchased residential houses in Runda Mimosa Estate.
Collectively, the appellants’ individual plots are referred to as the suit
properties.
6. The appellants contend that at the time of purchase of their respective
plots, records then and now at the Ministry of Lands indicate there was a
road reserve measuring 60 meters wide abutting the Estate. The
respective title documents to the purchased plots indicate the road
reserve measures 60 metres.
7. Contrary to the appellants’ contention, the respondents, Ministry of
Lands and the Kenya Urban Roads Authority informed the appellants
that the road reserve is 80 metres wide. Presently, the Ministry of Roads
and the Roads Authority have earmarked parts, portions or walls of the
appellants houses for demolition in that, parts of the houses encroach on
the road reserve. At the time of earmarking the houses for demolition, the
Ministry and the Urban Roads Authority intimated the road reserve was
required for construction of the Northern by-pass road. At the date of
hearing of this appeal, the Northern by-pass road had been completed.

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8. Astounded, angered and distressed by the intention of the Ministry and

the Kenya Urban Roads Authority to demolish part or portions of their
houses, the appellants filed a constitutional petition before the High Court
seeking inter alia declaratory orders as follows:
“(i) A declaration that the appellants’ rights
individually or in association with others, to acquire
and own property without arbitrarily being deprived of
the same as guaranteed by Article 40 of the
Constitution has been and will be contravened if the
intended demolition is effected.
(ii) A declaration that the intended action of the
Ministry of Roads, whether pursuant to any plans,
contravenes the express records at the Ministry of
Lands and that valid documents are those at the
Ministry of Lands.
(iii) A declaration that the decision by the Ministry of
Roads to demolish the appellants’ properties is null and
void to the extent that it violates the fundamental
rights and freedoms of the appellants as per Article 40
of the Constitution.
(iv) A declaration that the Ministry of Lands is the legal
and sole repository of land records in Kenya and the
appellants were not under any duty to check records or
plans of any other Ministry in relation to their affected
land.
(v) A declaration that, in the alternative, the Ministry
of Lands shall make prompt payment in full or just
compensation to the appellants pursuant to the
provisions of Article 40 of the Constitution.”

9. The respondents in opposing the petition before the High Court filed a
replying affidavit dated 4th March 2011 deposed by the then Permanent
Secretary in the Office of the President, Engineer Michael Mwaura
Kamau. The respondents assert the appellants’ residential houses have
encroached on the Northern by-pass road reserve; the road reserve is 80
metres wide and not 60 metres as contended by the appellants; the
Government compulsorily acquired the land upon which the road reserve
is located and positioned; a Notice of intended acquisition of the land was
published in the Kenya Gazette dated 20 th November 1970 being Gazette
Notice No. 3439; the Notice was in respect of an intended acquisition by
the Government of inter alia 6.420 acres from Land Reference No. 23 then
owned by Edith Gladys Cockburn; the Government was to acquire
16.061 acres from Land Reference No. 7785/9 then owned by Estav
Limited and the Government was to further acquire 27.984 acres from
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Land Reference No. 7785/10 then owned by Runda Coffee Estate

Limited. The respondents contend the appellants suit properties encroach
on the land compulsorily acquired by the Government vide the foregoing
Gazette Notice.
10. The respondents deposed that upon publication in the Gazette of the
notice of intended acquisition, a further Gazette Notice No. 3440 dated
20th November 1970 being a Notice of Inquiry to hear claims to
compensation was published to all persons interested in the parcels being
acquired. Subsequent to inquiry, the Government made compensation to
the owners of the acquired land with the result that titles to all the
acquired portions reverted to the Government.

11. On the strength of the compulsory acquisition as aforestated, the

respondents assert that parts or portions of the appellants’ residential
plots and houses have encroached on the road reserve that measures 80
metres wide; and the parts or portions that have encroached the road
reserve have been earmarked for demolition.
12. Upon hearing the parties, the learned judge dismissed the appellants’
petition and declined to grant any of the declaratory orders sought. In
dismissing the petition, the learned judge expressed herself as follows:
“[106] It is true that the petitioners have a right to
own property, and they are entitled to their properties
to the extent that such properties have not encroached
upon land that was acquired and set aside for public
purpose. Their right to property must be exercised
within and in accordance with the framework of the
law. Public lands acquired through compulsory
acquisition are amongst the overriding interest
stipulated under Section 30 of the Registered Land Act
which qualify the indefeasibility of title acquired under
the Act as provided in Section 28 (b) above. The
petitioners’ titles, to the extent that they comprise
land which forms part of the Northern by-pass are
defeasible to that extent.
[107] I do not therefore see, in the two petitions
before me, any violation or limitation of the petitioners’
right to property. The petitioners are in my view,
unwitting victims of landowners who sold properties to
them without having regard to the public interest in the
portions of their properties that had been compulsorily
acquired for construction of the Northern by-pass
corridor and of surveyors who have prepared sub-
division plans either in ignorance or disregard of the
existing road corridor. Whatever the case, I can find no
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basis for alleging violation of the petitioners’

constitutional right to property by the respondents.”

13. Aggrieved, the appellants have filed the instant appeal citing the
following compressed grounds in their memorandum of appeal:
(i) The judge erred in upholding an alleged compulsory
acquisition process that did not comply with the Land
Acquisition Act, Cap 296 of the Laws of Kenya (now repealed).
(ii) The judge erred in failing to hold the respondents’ failure
to strictly comply with the provisions of the Land Acquisition
Act rendered the alleged compulsory acquisition null and void.
(iii) The judge erred in upholding an unregistered interest
relied upon by the respondents to impugn the appellants’
registered titles in the face of clear provisions of Sections 30
and 32 of the Registered Land Act, Cap 300 of the Laws of
Kenya (now repealed).
(iv) The judge erred in finding the appellants had
acknowledged there was a compulsory acquisition of land from
the mother titles to their properties being LR 7785/9 and LR
12672 (formerly LR 23).
(v) The judge erred in failing to find the appellants had
provided requisite proof that the road reserve along their
properties was 60 metres wide based on sub-divisions of the
mother titles to the properties as approved by the
Commissioner of Lands and not through compulsory
acquisition.

(vi) The judge erred in holding she could not inquire into the
validity of the alleged compulsory acquisition and further erred
in holding the appellants lacked locus standi to impugn the
compulsory acquisition.
(vii) The judge erred in relying on the principles of contract to
determine the issues raised in the petition in the face of clear
statutory provisions governing compulsory acquisition.
(viii) The judge erred in finding the appellants could have with
exercise of due diligence been put on notice that the road
reserve along their properties was 80 metres and not 60
metres wide.
(ix) The judge erred in failing to find there was no final survey
conducted when the alleged compulsory acquisition occurred.

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(x) Since the Director of Survey record shows the road reserve
as it passes along the appellants’ properties is 60 metres wide,
the appellants had no way of knowing the road reserve was 80
metres wide.
(xi) The judge having found the appellants were unwitting
victims of actions by third parties, the judge erred in failing to
fashion a remedy for the appellants.
(xii) By directing the appellants to surrender 20 metres of
their respective properties, the judge erred in making an
assumption that the respondents’ case was that the
appellants’ properties had encroached onto the alleged road
reserve in equal measure.
(xiii) The judge erred in relying on drawings by the
respondents that do not meet the threshold for Survey Plans
under the Survey Act.
(xiv) The judge erred in abandoning the titles and deed plans
issued to the appellants by the Commissioner of Lands and
Registrar of Titles, and instead relied on oral evidence by
Surveyors.

14. At the hearing of the consolidated appeals, Senior counsel Mr.

George Oraro, Senior Counsel Prof. Githu Muigai and learned counsel
Mr. Geoffrey Imende appeared for the appellants. The Ministry of Lands,
Ministry of Roads and the Attorney General were represented by State
Counsel Mr. Charles Mutinda and Christopher Marwa while learned
counsel Mr. A. M. Mulekyo appeared for the Kenya National Highway
Authority and Kenya Urban Roads Authority.
APPELLANTS’ SUBMISSION
15. Senior Counsel George Oraro appearing for Cycad Properties
Limited, one of the appellants, urged this Court to allow the appeal.
Counsel rehashed background facts to the dispute between the parties. He
submitted the Kenya National Highways Authority and the Kenya Urban
Roads Authority informed the appellants that their properties had
encroached onto an area which the Government had compulsorily
acquired for purposes of a public road by 20 metres; the respondents
informed the appellants they intend to demolish properties encroaching on
the road by the said 20 metres.
16. The leitmotif and gravamen of the appellants’ case is if there was any
compulsory acquisition in 1970, the process of the alleged acquisition was
not completed in accordance with the Land Acquisition Act. More
specifically, it was urged Sections 17 and 20 (2) (b) of the Land
Acquisition Act (Cap. 295 of the Laws of Kenya) were not complied
with. The Sections provide as follows:
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“Section 17:
17. Where part only of the land comprised in
documents of title has been acquired, the
Commissioner shall, as soon as practicable, cause a
final survey to be made of all the land acquired.
(Emphasis supplied)
Section 20 (2):
20. (1) Where the documents evidencing title to the
land acquired have not been previously delivered to
him, the Commissioner shall in writing require the
person having possession of the documents of title to
deliver them to the Registrar, and thereupon that
person shall forthwith deliver the documents to the
Registrar.
(2) On receipt of the documents of title, the Registrar
shall—
(a) where the whole of the land comprised in the
documents has been acquired, cancel the documents;
(b) where only part of the land comprised in the
documents has been acquired, record upon the
documents that so much of the land has been acquired
under this Act and thereafter return the documents to
the person by whom they were delivered and upon such
receipts, or if the documents are not forthcoming,
cause an entry to be made in the register recording the
acquisition of the land under this Act.”
(Emphasis supplied)
17. Senior Counsel George Oraro submitted that pursuant to the Gazette
Notice of 20th November 1970, the Government did not express an
intention to acquire the entire parcel of land reflected in the mother title
LR No. 12672 (Original LR 23). Rather, the Government expressed
intention to acquire part of the land. Having expressed intention to acquire
only part of the land, and even if inquiry and compensation was paid, the
final process to complete the compulsory acquisition was causing a final
survey to be made of all the land acquired. In the instant matter, the
Government did not undertake a final survey and thus the process and
procedure for compulsory acquisition as required by Section 17 of the
Land Acquisition Act was not finalized. Had a final survey been done,
the width of the road reserve would have been expressed in the resultant
titles and the Register of the appellants’ properties would have reflected
the same. Counsel submitted failure to comply with Section 17 of the Act

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to cause a final survey to be made of all the acquired land renders the
entire compulsory acquisition null and void.

18. The appellants contend that the Government failed to follow the
provisions of Sections 17 and 20 (2) b) of the Act which would notify
any third party dealing with the land that government affectation, by way
of compulsory acquisition, had been made. Due to failure to follow the laid
down procedure, counsel submitted the Government cannot visit the
consequence of such failure upon the appellants.

19. The appellants emphasized that Sections 17 and 20 (2) (b) of the
Land Acquisition Act underscore the procedure for perfecting
acquisition of land and its registration against title. Failure to follow the
procedure in the aforestated sections mean the so-called compulsory
acquisition was not perfected.
20. A further ground urged in this appeal is the judge erred in holding the
appellants could not inquire into the supposed compulsory acquisition of
1970. Counsel submitted that the judge misapprehended the appellants
case which was not premised on challenge to the compulsory acquisition
but on the basis they were innocent purchasers for value with their
respective titles issued under the Registered Land Act based on sub-
division plans duly approved by the Director of Survey with respect to the
original title in LR No. 12672 (Original LR 23).
21. It was submitted that the trial court erred in erroneously drawing
analogy from privity of contract thereby incorrectly finding that the
compulsory acquisition having taken place in 1970 between the original
land owners and the Government, the appellants could not question the
same as they were not parties thereto.

22. The judge was faulted for failing to appreciate the appellants case was
grounded on Article 40 of the Constitution and not on compulsory
acquisition; the court did not appreciate the Commissioner of Lands not
only failed to comply with Sections 17 and 20 (2) of the Land
Acquisition Act but permitted a sub-division of the original mother
property and issued new titles under the Registered Land Act covering a
portion of the land which the Government claims to have acquired.
23. It was urged that the learned judge misconstrued the appellants case
and failed to appreciate the dispute between the parties is neither a claim
under the Land Acquisition Act nor a claim in contract law; it is a claim
premised on violation of a fundamental right to protection of property as
guaranteed by Article 40 of the Constitution. Counsel cited dicta from
Mutume Angaine vs. M’marete M’muroye Civil Appeal No. 123 of
2006 (2011) eKLR where it was expressed that when a person’s property
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is forcefully acquired, the Government must fully comply with the law and
follow the laid down procedures strictly and meticulously. Citing the case
of Commissioner of Lands & another vs. Coastal Aquaculture
Limited, Civil Appeal No. 252 of 1997, KLR (E&L) 1264, counsel
submitted that there is need to ensure all procedures relating to
compulsory acquisition are not only strictly complied with but must appear
to be so complied with on the face of inquiry. (See also Sea Star Malindi
Limited vs. Kenya Wildlife Services, KLR (E & L) 512).

24. In arriving at her decision, the trial judge stated that “the appellants’
surveyors, with a little due diligence would have established that the
correct width of the road reserve was 80 metres.” Faulting the judge for
this statement, Senior Counsel referred to Section 39 (1) of the
Registered Land Act (RLA) which stipulates:
“No person dealing or proposing to deal for valuable
consideration with a proprietor shall be required or in
any way concerned:
To inquire or ascertain the circumstances in or the
consideration for which that proprietor or any previous
proprietor was registered.”
25. Relying on Section 39 (1) of the RLA, the appellants urged the
registration system in Kenya is derived from the Torrens system whereby
a purchaser is not required to look beyond the Register to establish the
validity or ownership of property.
26. It was further contended that the trial judge erred by shifting the
burden of proof and created a standard of due diligence required of a
party acquiring property which had been compulsorily acquired. To
buttress submission that the trial court erred in shifting the burden of
proof, the case of Attorney General vs. Kenya Commercial Bank
Limited & 3 others (2014) eKLR was cited. In the case, the court
stated:

“….it would be a bad precedent where parties to

a transaction in land would not only have to satisfy
themselves that the land in question is registered but
also trace the history of the land to establish whether
or not the title to the said parcel of land was
legitimately acquired….
It would also make nonsense of the title deeds issued
and guaranteed by the Government in respect of
parcels of land owned by individuals.”

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27. On the issue of due diligence, the appellants pressed that the trial
court erred in finding that “while the adjoining parcels of land had a road
reserve of 80 metres, the appellants’ properties had a road reserve of 60
metres and that with due diligence, the appellants’ surveyors would have
found that the correct width was 80 metres.” The appellants faulted the
judge in her evaluation of the evidence thereby arriving at the aforestated
erroneous conclusion and determination.
28. It was urged that the judge did not appreciate the import of Sections
30 and 32 of the Survey Act. The Sections require that all survey plans
prepared by a licensed surveyor be deposited with the Director of Survey
and no land shall be deemed to have been surveyed or re-surveyed until
the plan has been authenticated by the signature of the Director of Survey
or a Government Surveyor authorized in writing by the Director.

29. Relying on Sections 30 and 32 of the Survey Act, the appellants

submitted that all survey plans in relation to the appellant’s properties
were lodged with the Director of Survey and produced before the trial
court; the survey plans showed that the width of the road as 60 metres
and the plans were duly authenticated by the Director of Survey; that
none of the documents provided by the respondents indicated that an 80
metres road reserve had been acquired; no survey plans for the alleged 80
metres road reserve was prepared by a duly licensed surveyor. It was
urged that the respondents plan prepared by a private firm of engineers
known as John Burrow Consulting Engineers is not an authenticated
plan under Section 32 of the Survey Act; and it was not open to the
judge to find the survey plans tendered in evidence by the appellants were
either in ignorance or were prepared in disregard of the existing road
reserve.
30. A pivotal contestation by the appellants is the judge erred in finding
public land acquired through compulsory acquisition is an overriding
interest under Section 30 of the RLA. Counsel submitted failure by the
Government to register its interest in relation to the acquired land
pursuant to Section 17 of the Acquisition Act signifies no interest was
acquired by the Government over the road reserve; compulsory
acquisition can only be effected by registration consistent with the
provisions of the Land Acquisition Act; no overriding interest of compulsory
acquisition can be acquired without registration; an overriding interest can
only be acquired through provisions of law.

31. Senior counsel Prof. Githu Muigai representing the individual

appellants associated himself with submission made by Senior Counsel
George Oraro. Prof. Muigai restated the judge erred in invoking the
doctrine of privity of contract; that the appellants are not seeking to assert
any right or to impose any obligation arising from any contract between
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the government and the original owners; the appellants contend the
compulsory acquisition never happened and that is why they hold valid
titles to the suit properties; the appellants are bona fide purchasers for
value without notice and are holders of valid titles; they petitioned the trial
court to protect their constitutional right to property under Article 40 of
the Constitution.
32. On the finding by the trial court that the appellants cannot challenge
the process of compulsory acquisition made over 30 years ago, Senior
counsel submitted the appellants challenge to the compulsory acquisition
aims to demonstrate the sanctity of their documents of title; this type of
challenge is not envisioned by the Land Acquisition Act; there is no
limitation period to challenge violation of a fundamental right. Counsel
emphasized the appellants case is that the records at the Ministry of Lands
and at the Director of Survey indicate that the width of the road reserve is
60 metres and it is the 60 metres the Government is entitled to and not
the 80 metres as claimed by the Ministry of Roads and the Urban Roads
Authority.

33. Furthering submissions by Mr. Oraro, Prof. Muigai echoed that the
process of compulsory acquisition was not completed and the trial judge
erred in reversing the burden of proof to the appellants; counsel cited
Section 107 of the Evidence Act which enjoins any person who desires
any court to give judgment as to any legal right or liability dependent on
the existence of facts which he asserts must prove that those facts exist. It
was urged the Gazette Notices published in 1970 by themselves are not
proof of compulsory acquisition. Counsel cited dicta from Virendra Ramj
Gudka & 3 others vs. Attorney General [2014] eKLR where it was
stated:
“The fact is there were no records of the acquisition at
the Lands Registry and or with the Director of Survey.
In my view, a Gazette Notice for the intended
acquisition alone cannot effectuate a compulsory
acquisition and in order to effectuate the acquisition,
the procedure for acquisition as under the Act has to be
adhered to. The Gazette notice for the acquisition and
the Gazette Notice notifying the payment of the
compensation can only affect the parties directly
affected such as the registered proprietors at the time
the notice of compulsory acquisition is given. Third
parties dealing with the acquired land can only be put
on notice if the process of acquisition is completed and
the provisions of Sections19 and 20 of the Act complied
with.”

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34. Prof. Muigai further urged that the Gazette Notices published in
1970 were defective and inoperative as they do not indicate the public
body in whose favour the land parcels were being acquired; further, there
is no evidence that an inquiry as required under Section 9 of the Land
Acquisition Act on the compensation payable was conducted; there was
no lawful and complete compulsory acquisition; there is no evidence on
record that compensation was paid pursuant to Section 13 of the Land
Acquisition Act; and no final survey was done. It was urged that the
Commissioner of Lands did not take possession of the acquired land as
stipulated in Section 19 of the Land Acquisition Act; he did not require
surrender of the title documents pursuant to Section 20 of the Act; the
Commissioner has never recalled the documents of title. In support of
these submission, Senior counsel cited the case of Eunice Grace Njambi
Kamau & another vs. Attorney General & 5 others [2013] eKLR
where it was stated:
“The language of Sections 19 and 20 of the Act is
couched in mandatory terms attesting to the
significance of the taking of possession and vesting of
the acquired land in the government…... Quite clearly,
observance of Section 19 (3) and Section 20 of the Act
would serve to notify third parties that the government
has acquired an interest in the subject land particularly
because the Registrar of Lands would have been
notified and a relevant entry would be made on the
land register signifying the interests of the
government.”
35. A spirited submission by the appellants is the faulting of the trial
judge’s view that LR No. 7785/10 (adjoining property) whose survey plan
was done in 1978 had a road reserve of 80 metres and that the appellants’
surveyors could have used the adjoining survey plan to establish that the
width of the road reserve in LR 7785/9 was 80 metres since these parcels
were adjacent.

36. The appellants submitted the foretasted view by the judge is faulty;
the judge failed to appreciate that even the road reserve required for
another section of the Northern by-pass was 60 metres wide at the
Kiambu Road junction; the judge failed to appreciate the appellants were
expected in law to conduct due diligence only at the Lands Office and at
the Director of Survey; they were not expected to consider adjoining
properties; the appellants could not reasonably be expected to conduct
any inquiry and searches at the Ministry of Roads or the Kenya Urban
Roads Authority. It was urged as bona fide purchasers for value, the
appellants had acquired indefeasible titles which are protected from
arbitrary deprivation of property under Article 40 of the Constitution.
RESPONDENTS’ SUBMISSION
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37. The respondents in opposing the instant appeal filed written

submissions and list of authorities.
38. Learned counsel Mr. Charles Mutinda appearing for the Attorney
General, the Kenya Urban Roads Authority and the Ministry of Lands
opposed the appeal. It was submitted during hearing, the trial court visited
the appellants’ properties and the road reserve of the Northern by-pass;
the trial court caused reports to be prepared by surveyors of the
respective parties; the surveyors also testified in court and were cross-
examined. Counsel submitted the area of land acquired for the Northern
by-pass was 16.061 ha on LR No. 7785/9 which translates to 80 metres
width of the road reserve; that earlier survey maps prepared in 1976 for
the adjoining parcel of land LR No. 7785/10 show the width of the road
reserve as 80 metres. It was urged that comparing the width of the road
reserve with the adjoining property, the road reserve in LR No. 7785/9
should be 80 metres. It was further urged that the surveyors who prepared
maps for the appellants ought to have used existing survey maps and
beacons indicated in FR 141/14 and 17 done in 1976.

39. The respondents urged that the judgment and decision of the trial
court is sound and ought to be affirmed; there is ample evidence on record
proving the appellants’ titles are tainted with illegality; the appellants
have encroached on public land and this Court should not sanction illegal
encroachment.
40. In urging us to dismiss the appeal, counsel cited the case of Nelson
Kazungu Chai & 9 others vs. Pwani University College [2017] eKLR
where this Court held:
“It is illegal and unfair to compel a victim to
compensate a squatter for illegal acts of the squatter
done on the victim’s property, for no court will lend its
aid to a man who founds his cause of action upon an
immoral or an illegal act.”

41. The respondents submitted they had demonstrated the appellants

properties encroached on land compulsorily acquired by the Government
in 1970; there exists survey maps and beacons that show the existing
road reserve corridor is 80 metres wide; the appellants ought to have
exercised due diligence to know their titles encroach on the road reserve;
the appellants do not have capacity to challenge the 1970 compulsory
acquisition and their cause of action, if any, is time barred under Section
7 of the Limitation of Actions Act that bar action for recovery of land
after 12 years. Counsel urged this Court to follow dicta in Kenya National
Highway Authority vs. Shallen Massod Mughal & 5 others [2017]
eKLR. The respondents urged us to find that the effect of compulsory
acquisition of land is to create an overriding interest in the subject parcels.
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42. On whether the appellants’ property rights protected under Article

40 of the Constitution have been violated, the Attorney General submitted
Article 40 (6) does not protect property unlawfully acquired. The case of
Morris Ngundo vs. Lucy Joan Nyaki & another [2016] eKLR was
cited to support the proposition that Article 40 (6) of the Constitution
takes away the protection of property that has been unlawfully acquired.
In concluding their submissions, the respondents urged us to find the
appellants’ properties encroached a road reserve and they are not entitled
to any declaratory orders.

43. Learned counsel Mr. Mulekyo for the Kenya National Highways
Authority restated the Government compulsorily acquired 16.061 acres of
LR No. 7785/9 for Ksh. 208,060/= and which sum was paid to Efstav
Limited.
44. Counsel submitted that the only dispute in this matter was the width
of the road reserve. Is it 60 metres or 80 metres" It was urged the
appellants have not explained how they arrived at 60 metres as the width
of the road reserve; that the design and plan for the Northern by-pass
shows the width of the road reserve is 80 metres and narrows down to 60
metres where the appellants properties and other neighbouring properties
have unlawfully encroached the public land; that the by-pass widens and
expands to 80 metres after the encroached area.
45. The 4th respondent submitted that the decision of the trial court was
correct in law and should be affirmed. Counsel cited dicta from Ramji
Gudka vs. Minister of Roads & another ex parte Verendra Ramji
Gudka HCCC JR ELC No. 32 of 2009 where it was stated that where
there is a conflict between private interest and public interest, public
interest must prevail. It was urged the appellants are trespassers on public
land. Citing the case of Gitwany Investments vs. Tajmall Limited & 2
others, 1984) eKLR 761 it was submitted that even a trespasser who is
a bona fide purchaser for value without notice is liable for eviction. Citing
the case of Niaz Mohammed Jan Mohamed vs. Commissioner of
Lands & 4 others, [1996] eKLR, it was urged that even unutilized
portions of a road reserve would remain road reserve and the road
remains a public road vested in the appropriate authority.

46. On due diligence, the 4th respondent urged if the appellants through
their surveyors had exercised due diligence, they would have noted the
width of the road reserve was 80 metres; the evidence from appellants’
surveyors has not demonstrated the basis upon which they concluded the
width of the road reserve was 60 metres. It was submitted if the
appellants’ surveyors had picked the beacons of the adjoining abutting
properties, they would have determined the boundary of the appellants’
properties and realized the width of the road reserve was 80 metres.
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Counsel submitted all along, the appellants knew the width of the road
reserve was 80 metres; this knowledge is deducible from survey map F/R
141/44 dated 8th November 1978 which was tendered in evidence by the
appellants.
47. Commenting on applicability of the concept of overriding interest, the
4th respondent submitted failure by the appellants to tender the original
mother title in evidence for scrutiny made it difficult for the trial court to
verify compliance with provisions of the Land Acquisition Act.

ANALYSIS and DETERMINATION

48. I have considered the grounds of appeal, submission by counsel and
the authorities cited. I remind ourselves this is a first appeal. As was said
in Peters vs. Sunday Post Ltd [1958] EA 424, at P 429 by O’Connor P.
“An appellate court has, indeed, jurisdiction to review
the evidence in order to determine whether the
conclusion originally reached upon that evidence
should stand”.
49. The test in deciding whether to uphold the trial court’s conclusions on
fact is set out in the quotation from Lord Simon’s speech in Watt vs.
Thomas [1947] AC, 484 at p 485 as follows:
“….an appellate court has, of course, jurisdiction to
review the record of the evidence in order to determine
whether the conclusion originally reached upon that
evidence should stand; but this jurisdiction has to be
exercised with caution. If there is no evidence to
support a particular conclusion (and this is really a
question of law) the appellate court will not hesitate so
to decide. But if the evidence as a whole can
reasonably be regarded as justifying the conclusion
arrived at the trial and especially if that conclusion has
been arrived at on conflicting testimony by a tribunal
which saw and heard the witnesses, the appellate court
will bear in mind that it has not enjoyed this
opportunity and that the view of the trial judge as to
where credibility lies is entitled to great weight…”
50. The appellant’s case is grounded on Article 40 of the Constitution.
Pursuant to the Article, a person shall not be arbitrarily deprived of
interest or right over any property of any description. The Supreme Court
in Rutongot Farm Ltd vs. Kenya Forest Service & 3 others [2018]
eKLR, expressed that:

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“once proprietary interest has been lawfully acquired,

the guarantee to protection of the right to property
under Article 40 of the Constitution is then expressed
in the terms that no person shall be arbitrarily deprived
of property. The same guarantee existed in Section 75
of the repealed Constitution.” (Emphasis supplied)
51. In this matter, the appellants contend that the trial court erred in
ignoring the survey maps authenticated by the Director of Survey under
Section 32 of the Survey Act, Cap 299 of the Laws of Kenya. On this
submission, we refer to Section 21 (2) of the Survey Act which provides
as follows:
21 (2) Neither the Government nor any public officer
shall be liable for any defective survey, or any work
appertaining thereto, performed by a licensed
surveyor, notwithstanding that any plan relating to
such survey or work has been authenticated in
accordance with the requirements and provisions of
this Act or accepted for registration under any written
law for the time being in force relating to the
registration of transactions in or of title to land.
52. Grounded on the provisions of Section 21 (2) of the Survey Act,
the appellants have no claim against the Government for any defect or
error in the survey plans that had been authenticated by the Director of
Survey. No liability and claim for compensation can be founded solely on
an authenticated survey plan.

53. One of the grounds urged in this appeal is the trial court erred in
invoking privity of contract in coming to the conclusion that the appellants
cannot challenge the compulsory acquisition that took place over 30 years
ago. The trial court in arriving at its decision expressed as follows:
“[84] None of the petitioners were parties to the
process of acquisition in 1970. If I may draw an analogy
between the relationship between the state and the
then land owners and the relationship between parties
to a contract, the petitioners would stand in the
position of third parties seeking to enforce a contract
to which they are not parties, and they would be barred
by the doctrine of privity of contract with regard to
third parties: only persons who are parties to a
contract are entitled to take action to enforce it. A
person who stands to gain a benefit from the contract
(a third-party beneficiary) is not entitled to take any
enforcement action if he or she is denied the promised
benefit.”
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54. The appellants’ submission on privity of contract has partial merit. In

the trial court’s perspective, correctly, there was no contract between the
Government and the appellants over the compulsory acquisition made in
1970. To the extent that the trial court was drawing an analogy in
contract, this is true. However, the analogy of privity of contract is partially
inappropriate. The dispute at hand relates to real property and the correct
legal principle the trial court ought to have invoked is privity of estate and
unity of estate.
55. Privity of estate, at times referred to as privity of title, involves rights
and duties that run with the land if the original parties intend to bind
successors. Privity of estate denotes rights that touch, run with and
concern the land. In this context, unity of estate means that both the
government and the appellants derive and receive their interest/title
through and from the same source namely, the mother title. None can
acquire more land or better title than that granted and conferred through
the mother title.

56. In the instant appeal, the Government compulsorily acquired parts of

LR 7785/9 and LR 12672 (formerly LR 23) which are mother titles to the
appellants’ properties. Both the road reserve and the appellants’
properties have one mother title. In this context, both have unity of estate.
The road reserve and the appellants’ properties have a root of title from
the same estate namely LR 7785/9 and LR 12672 (formerly LR 23). The
common and shared mother titles gives privity of estate to government
interest in the road reserve and the appellants’ properties. Under the
doctrine of privity of estate, both the government and the appellants can
only acquire proprietary rights and interest as was vested in the original
owners. In this context, the government cannot own more land than was
compulsorily acquired from the original owners of the mother title to the
land acquired namely Messrs Noral Helen Cockburn; Runda Coffee
Estate and Estav Limited Estav Limited. Likewise, the appellants
cannot own and acquire more land than that which remained upon
excision of the portions acquired by the government in 1970. It is in this
regard that we hold the analogy of privity of contract used by the trial
judge was partially inappropriate given the facts and dispute between the
parties. What conjoin the government’s road reserve and the appellants’
titles is privity of estate and unity of estate.

57. The appellants further fault the trial court for invoking limitation
period in arriving at its decision. The trial court expressed:
“88. That being the case, even had the owners of the
mother titles attempted to challenge the acquisition at
this point in time, the fact that the process was
completed more than 40 years ago, and the
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compensation award made, would have barred them

from raising any questions about the acquisition.”
58. The appellants contend that the judge misapprehended their case and
erred in invoking limitation issues. It was urged the appellants case is not
grounded on challenging the compulsory acquisition that took place over
40 years ago; the appellants are not challenging compensation paid to the
then registered owners of the mother titles; rather, the appellants contend
that they are bona fide purchasers for value and their titles are
indefeasible and Article 40 of the Constitution protects their private
property rights. Based on the foregoing, it was urged the trial court erred
in invoking limitation issues.
59. I have considered the appellants’ submission on limitation. Indeed, a
reading of the claims in the Petition and the declaratory orders sought
clearly evince the appellants case is grounded on Article 40 of the
Constitution. The claim is founded on alleged violation of the
fundamental right to property. I am alive to the decision of this Court in
Peter N. Kariuki vs. Attorney General [2014] eKLR, Civil Appeal
No. 79 of 2012, where it was held that there is no time limit within which
a party can file a claim for violation of constitutional rights. I have
considered the persuasive dicta from the High Court in Kamlesh
Mansuklal Damji Pattni & Another vs. Republic 2013] eKLR where it
was expressed the Constitution did not set a time limit within which
applications for enforcement of fundamental rights should be brought.

60. Unless expressly stated in the Constitution, the period of limitation

does not apply to violation of rights and freedoms guaranteed in the
Constitution. The law concerning limitation of actions cannot be used to
shield the State or any person from claims of enforcement of fundamental
rights protected in the Bill of Rights. (See Dominic Arony Amolo vs.
Attorney General Nairobi HC Misc. Civil Case No. 1184 of 2003
(O.S) [2010] eKLR; Otieno Mak’Onyango vs. Attorney General &
another Nairobi HCCC No. 845 of 2003).
61. In my view, subject to the limitations in Article 24 of the 2010
Constitution, fundamental rights and freedoms cannot be tied to the
shackles of limitation period. More specifically in relation to property
rights, subject to Article 40 (6) of the Constitution, the protection of the
right to property is guaranteed. Accordingly, I find that the trial judge
erred in invoking the concept of limitation as an issue that could bar to
violation of property rights under the appellants from asserting their claim
Article 40 of the Constitution.

62. Further in my view, the statement by the trial judge that the
appellants could not challenge compulsory acquisition concluded over 40
years ago is an invocation of the doctrine of laches. Delay and laches
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involve essentially a personal disqualification on the part of a particular

applicant (plaintiff). Delay and laches cannot be treated as a stigma on the
title to land which once impressed, necessarily descends with the title and
affects all succeeding owners. (See Odoula vs. Ibadan City Council,
Supreme Court of Nigeria Suit No. 387 of 1975; 3 PLR 1978/55 SC).
If delay or laches is founded upon a mere delay which does not amount to
a bar by any statute of limitation, the validity of the contestation on laches
must be considered upon principles which are substantially equitable.
63. In the instant appeal, the dispute involves application of express
statutory law provisions embodied in the Land Acquisition Act. Unless
expressly stated, there is no room for equitable principles to vary or
modify express statutory provisions and prescribed procedure for
compulsory acquisition under the Land Acquisition Act.

64. A pivotal submission in this appeal is the contestation the trial judge
erred in failing to find the process of the alleged compulsory acquisition of
parts of LR 7785/9 and LR 12672 (formerly LR 23) was not completed. It is
the appellants’ contention the process was not completed because
Sections 17 and 20 (2) (b) of the Compulsory Acquisition Act were
not complied with. For ease of reference and re-collection, the Sections
provide as follows:
“Section 17:
17. Where part only of the land comprised in
documents of title has been acquired, the
Commissioner shall, as soon as practicable, cause a
final survey to be made of all the land acquired.
(Emphasis supplied)
Section 20 (2):
20.(1) Where the documents evidencing title to the
land acquired have not been previously delivered to
him, the Commissioner shall in writing require the
person having possession of the documents of title to
deliver them to the Registrar, and thereupon that
person shall forthwith deliver the documents to the
Registrar.
(2) On receipt of the documents of title, the Registrar
shall—
(a) where the whole of the land comprised in the
documents has been acquired, cancel the documents;
(b) where only part of the land comprised in the
documents has been acquired, record upon the
documents that so much of the land has been acquired
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under this Act and thereafter return the documents to

the person by whom they were delivered and upon such
receipts, or if the documents are not forthcoming,
cause an entry to be made in the register recording the
acquisition of the land under this Act.” (Emphasis
supplied)

65. The appellants appeal is also founded on non-compliance with

Section 17 of the Land Acquisition Act to wit there was no final survey
made of all the land that was acquired. In relation to Section 20 (2) (b),
the non-compliance is no entry was made in the Register recording the
acquisition of parts of LR 7785/9 and LR 12672 (formerly LR 23). The
appellants further contend there were various non-compliances as follows:
the Gazette Notices published in 1970 were defective and inoperative as
they do not indicate the public body in whose favour the land parcels were
to be acquired; there is no evidence that inquiry as required under
Section 9 of the Land Acquisition Act as to the compensation payable
was conducted; there is no evidence on record that compensation was
paid pursuant to Section 13 of the Land Acquisition Act; no final survey
was done; the Commissioner of Lands did not take possession of the
acquired land as stipulated in Section 19 of the Land Acquisition Act;
the Commissioner did not require surrender of the title documents
pursuant to Section 20 of the Act; and the Commissioner has never
recalled the documents of mother title of LR 7785/9 and LR 12672
(formerly LR 23).
66. I have considered each of the alleged non-compliance. The contention
that no compensation was paid for compulsory acquisition pursuant to
Section 13 of the Act has no merit. Section 13 (1) of the Act provides:

“13. (1) After notice of an award has been served

under section 11 on all the persons determined to be
interested in the land, the Commissioner shall, as soon
as practicable, pay compensation in accordance with
the award to the persons entitled…...”
67. On record there is a letter dated 23 rd December 1970 addressed to
the Chief Engineer of Roads stating that compensation awards had been
issued in relation to compulsory acquisition for the extension of road from
Ruaka to Kiambu. In the letter, an award of Ksh. 136,280/= was made to
Noral Helen Cockburn; Ksh. 150,548/= to Runda Coffee Estate and
Ksh. 208,068/= to Estav Limited. These payees were the original
registered proprietors of portions of LR 7785/9 and LR 12672 (formerly LR
23) that were compulsorily acquired as road reserve. There is no evidence
on record to challenge the payment of these awards upon inquiry for
compensation having been made. For this reason, I find that the award
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and compensation was paid pursuant to Section 13 of the Land

Acquisition Act.
68. The appellant contends that no inquiry was made for compensation
for compulsory acquisition under Section 9 of the Land Acquisition Act.
69. I have considered this contention. Gazette Notice No. 3440 dated
20th November 1970 was published pursuant to Section 9 of Land
Acquisition Act inviting registered proprietors amongst others
Closeburn Estate Limited, Edith Gladys Cockburn, Efstav Limited
and Runda Coffee Estate for inquiry and hearing of claims to
compensation for portions of their lands compulsorily acquired.

70. There is on record a letter dated 22 nd December 1970 from Efstav

Limited to the Commissioner of Lands accepting the award of Ksh.
208,060 as compensation award for the land acquired in LR 7785/9. In
addition, a letter dated 12th August 1972 signed by Mr. G.A. Hollins
confirms compensation has been paid in full and final settlement of all
claims. The letter itemizes the Gazette Notices through which compulsory
acquisition was made.
71. Based on the Gazette Notice No. 3440 dated 20th November 1970
and the letter by Mr. G.A. Hollins, I am satisfied that an inquiry was held,
hearing for compensation done and an award for compensation made.
Accordingly, the contention no inquiry was made in terms of Section 9 of
the Land Acquisition Act has no merit.
72. A further contestation by the appellants is that Gazette Notices No.
3439 published in the Kenya Gazette dated 20th November 1970 was
defective and inoperative as it does not indicate the public body in whose
favour the land parcels were to be acquired. I have perused the subject
Gazette Notice. On the face thereof and in relevant excerpt it is stated “…
The Government intends to acquire the following land for road
realignment….” It is manifest the purpose for acquisition is stated as road
realignment. The person acquiring is stated to be the Government. At all
material times, the legal entity that owns public roads is the Government
of Kenya. It is the Government that intended and indeed acquired the
parts of the land for road realignment. Accordingly, the contention that the
Gazette Notice was defective as the person for whom the land was being
acquired was not stated has no merit. For whatever it’s worth and for
rhetorical purposes, if not for the Government, I wonder in whose favour
the road reserve should have been acquired.

73. Two facets of non-compliance alluded to by the appellants is the

Commissioner of Lands did not require surrender of the mother title
documents pursuant to Section 20 (2) (b) of the Land Acquisition Act;
and the Commissioner has never recalled the documents of mother title of

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LR 7785/9 and LR 12672 (formerly LR 23). Founded on this non-

compliance is the contention no entry was made on the register to
complete and perfect the process of compulsory acquisition.
74. The respondents concede the mother titles to LR 7785/9 and LR
12672 (formerly LR 23) were never surrender by the original registered
owners; it is not disputed there is no entry of the compulsory acquisition in
the Register.

75. What is the legal consequence of failure by the Commissioner to recall

or require to be surrendered the original mother titles" Does the non-
compliance make null and void the entire compulsory acquisition of the
portions of land and road reserve for which compensation and award was
made"
76. It is not in dispute there was non-compliance with the provision of
Section 17 and 20 (2) (b) of the Land Acquisition Act. The letter dated
12th August 1972 signed by Mr. G.A. Hollins corroborates this fact. In the
letter, Mr. Hollins advises that under Section 17 of the Land Acquisition
Act, the Commissioner of Lands is required to cause a final survey to be
made of all the land acquired and in the instant matter, it remains for
individual titles to be rectified. He recommends it is advisable to lodge
caveats against the titles as a temporary measure. The advice and
recommendation of Mr. Hollins were never implemented. This is
corroborated by the absence of any caveat entered on the mother titles
and no rectification of the Register was done. The legal issue in this appeal
is what is the legal effect of non-compliance with Sections 17 and 20 (2)
(b) of the Land Acquisition Act" I shall revert, consider and answer the
question here below.
77. A further issue urged by the appellants is that the width of the road
reserve along their properties is 60 metres and not 80 metres as alleged
by the respondents. The appellants submitted that the trial court erred
and failed to note that there were other parts of the Northern By-pass
where the width of the road was 60 metres. It was submitted that the
court erred in finding that “in view that LR No. 7785/10 (adjoining
property) whose survey plan was done in 1978 had a road reserve of 80
metres, the surveyors of the appellants’ property could have used the
beacons of the adjoining property to establish that the width of the
disputed road reserve abutting LR 7785/9 was 80 metres since these
parcels were adjacent.”

78. The appellants further fault the trial court for failing to appreciate that
the road reserve at the Kiambu Road junction and the area near Windsor
Hotel along the Northern by-pass was 60 metres wide. The judge was
faulted in failing to find the appellants were not expected to consider
adjoining properties in determining the boundaries of their properties and
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the width of the road reserve; the judge erred in failing to find the
appellants could not reasonably be expected to conduct inquiry and
searches at the Ministry of Roads or the Kenya Urban Roads Authority to
ascertain the width of the road reserve.
79. I have considered the submission by the parties on the width of the
road reserve. The appellants contend that the width is 60 metres and as
such, there is no encroachment on the road reserve. Conversely, the
respondents contend the width is 80 metres.

80. The trial judge in evaluating the evidence relating to the width of the
road reserve made a determination that the width was 80 metres. In so
finding, the court extensivley expressed as follows:
“[4] The issue in dispute in both petitions is the width
of the road reserve adjacent to the petitioners’
properties. While the petitioners contend that it is 60
metres according to records from the Ministry of Lands,
the respondents counter that it is 80 metres as
delineated in the 1970s when the parent parcels were
compulsorily acquired by the government…….
[19] The petitioners submitted that the road corridor
for the Northern by-pass is 60 metres, contrary to the
assertion by the respondents that it is 80 metres in
width; that all the survey maps from the Director of
Surveys show that the road is 60 metres; that the
respondents have not produced a single survey map
that shows that the road was 80 metres. They therefore
assert that the respondents want to deprive them of
their property contrary to the provisions of Article 40
and 65 of the Constitution by alleging that the road
reserve goes 20 metres into their properties…...
[93] The thrust of the petitioners’ argument on this
issue is that from the information available to them,
and from the survey maps available, only a 60 metres
road reserve had been acquired. However, the
respondents’ argument that the vendors from whom
the petitioners’ bought their parcels as well as the
surveyors who carried out the subdivision of the land
and drew the subdivision plans deliberately encroached
upon the road reserve is lent credence by two things.
First, L.R. 7785/9 adjoins L.R. 7785/10. It is common
ground that this property has not encroached on the
road reserve, and that the road reserve at that
property is 80 metres. Secondly, annexure ‘KK5’, which
is survey plan number F/R 141/14 dated 4 th April 1978
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annexed to the affidavit of the 2nd petitioner, Dr. Kevin

Kariuki (whose date of swearing is not indicated but
which was filed in court on 22nd December 2010) shows
that the road reserve was 80 metres.
[94] L.R. 7785/9 borders L.R. 7785/10. It is bordered in
turn by L.R. 12672. While L.R. 7785/10 has a road
reserve of 80 metres, the adjoining parcels, the mother
titles to the petitioners’ properties, have a road
reserve of 60 metres. The petitioners’ position is that
the government must have acquired 80 metres from
one land parcel, but acquired 60 metres from the other
two. The totality of the evidence from the documents
before the court does not, however, support this
argument.

[95] From even a cursory analysis of the various

survey maps produced by the parties in support of their
respective positions, and from the overall evidence
before me, it seems to me that certain facts emerging
therefrom make the contentions by the petitioner
improbable: that L.R. 7785/10, whose survey was done
in 1978, had a road reserve of 80 metres; that the
petitioners had access to F/R 141/14 (‘KK5”) dated 4 th
April 1978 with a road reserve of 80 metres; that, as
testified by Mr. Murugu and indirectly corroborated by
Mr. Obel in his report, titles registered under the
Registration of Titles Act had fixed boundaries which
could be scientifically established by use of
coordinates; and as conceded somewhat reluctantly by
Mr. Obel in his testimony before the court, that in
carrying out a survey, a surveyor prepares the plan
using survey control points, which are existing
beacons; and that in the case of L.R. 7785/9, the
nearest survey plan existing for which the surveyor
could use beacons was the one for L.R 7785/10, (in
particular beacon ‘RK5’, which was at the boundary
between L.R 7785/10 and L.R 7785/9) and has a road
reserve of 80 metres.
[96] Clearly, the owners of the mother titles to the
petitioners’ properties, the vendors on whose behalf
the surveyors subdivided the mother titles, were aware
of, or should have been aware of, the fact that the road
reserve was intended to be 80 metres. In the
circumstances, it is difficult to accept the contention by
the petitioners that the failure by the respondents to
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complete the land acquisition by having a final survey

plan prepared meant that there was no information
available that the government had acquired an 80
metres road reserve from the subject parcels. I take the
view that, with the exercise of due diligence, the
surveyors who carried out the subdivisions out of which
the petitioners’ properties were created could, with
due diligence, have established the correct width of the
road as 80 metres.”

81. I have considered the reasoning and analogy of the trial court as
quoted above in finding that the width of the disputed road reserve
abutting the appellants’ properties is 80 metres. The trial judge based her
decision on transposition and comparison that the width of the road
reserve along the adjoining properties was 80 metres. In my considered
view, this transposition, analogy and comparative approach to determining
the width of the disputed road reserve is erroneous. There is no practice
that the width of a road or road reserve is uniform and consistent along its
entire route or along all properties adjoining and abutting the road. In
some areas, the width of a road could be 60 metres, 80 metres or even 88
metres. There is evidence on record that there is no uniformity in the
width of the disputed road reserve and no evidence was led to prove such
uniformity as a matter of practice in road construction or indeed under any
law.
82. A pertinent illustration that the width of a road reserve can change
along its route is illustrated by the case of Kenya National Highway
Authority vs. Shalien Masood Mughal & 5 others [2017] eKLR. In
this case, the changing width of the road reserve in dispute was captured
by Waki, JA in his judgment as follows:

“[30] … The strongest evidence that there was an

existing road reserve for the Nairobi/Mombasa highway
was the report filed pursuant to the trial court's
own order to establish the physical location of the two
properties. It was a non-partisan report from
professional surveyors appointed by both sides and
there was no reason to second guess it. They confirmed
that they applied scientific methodology in arriving at
their conclusions. And what did the report say" Take
the background information which I may reproduce:
“Parcel No. 209/12258 was surveyed by Mr. Gordon
Peter Okumu Wayumba of Geometer Surveys Ltd. The
survey is contained in F/r No. 262/89 and Comps. No.
31958.
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The Survey left a 60.00m road reserve (Mombasa road)

on the southern direction. The road was widened to
80.00m from beacon „L27 as per the approved survey
plan (F/R 204/133. A 30.00m buffer strip runs from
„MW6 to „C9 on F/R 195/95.
The road reserve then widens from „C9 (F/R 195/95) to
„M3 on Likoni road according to the Nairobi
Development Plan No. 305 and F/R 178/104. This is the
section that L.R No. 209/12258 was excised from.”
(Emphasis supplied)
83. In the instant appeal, there is evidence on record which shows that
the width of the Northern by-pass is not uniform along its entire route; it is
60 metres at some parts for example around Windsor hotel area and 80
metres in others. It is thus erroneous to use the width of a road reserve at
an adjoining property to deduce that the same width applies to the next
adjoining property. The trial court appreciated this when it was stated:
“[75] The construction of the Northern Bypass at those
portions of it adjacent to the subject property is now
complete. The Bypass has an 80 metres reserve in the
portions adjoining the petitioners’ properties, but 60
metres at the subject property. After the junction with
Kiambu Road, the Bypass again narrows to 60 metres.
During the site visit, the 5 th respondent stated that this
difference was accounted for by the fact that the land
at the Windsor junction was acquired later and only 60
metres were acquired.”

84. In my considered view, in the instant appeal, the width of the disputed
road reserve is immaterial. The width may be 60 metres, 80 metres or
even 10 metres. What is material is whether the appellants’ properties
encroach on parcels of land that had been compulsorily acquired by the
government in 1970. Are the appellants’ properties and title encroaching
on land that had been compulsorily acquired by the government in 1970"
Are their properties encroaching into the boundary of parts of land
compulsorily acquired"
85. In this matter, the boundary of the road reserve is in issue. Does the
boundary of the road reserve extend into parcels of land whose titles are
held by the appellants" The appellants allege that their parcels of land do
not encroach the road reserve.
86. A person who puts the boundary and identity of land in issue must
successfully contradict the defendant’s survey plan of the land in dispute
otherwise he would fail on that issue. (See Nigerian case of Nathaniel
Ochigbo vs. Idi Umoru, 3PLR/2009/55 (CA)). In this matter, the
appellants have the legal burden to prove the government road reserve
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does not extend to their properties. Conversely, the respondents have the
evidentiary burden to prove the road reserve was compulsorily acquired
by the government in 1970 and that the appellants’ properties encroach
and extend into the road reserve. The respondents’ evidential burden are
issues of facts.

87. The trial judge in evaluating the evidence relevant to determining if

the appellants’ properties encroach the road reserve established the
following facts:
“[56] The surveyor from the Director of Survey, Mr.
Reuben Mwenda Murugu, is a Senior Assistant Director
of Survey in the Ministry of Lands. He stated that he
had received a letter from the Permanent Secretary,
Ministry of Roads dated 20th April 2012. The letter
sought to know whether the road in dispute is 60
metres or 80 metres. Mr. Murugu indicated in his report
that he had collected all the plans pertaining to the
land in dispute and drawn them on one sheet depicting
what is on the ground. The plans that he considered
were F/R Nos. 131/10, 13/69, 141/14 and 17, Survey
Plan No. 163/86, F/R Nos. 297/8, 207/35, 209/68-70 and
207/4.
[57] With regard to the position on the ground, he
stated that when he and other officers from the
Director of Survey visited the site, they found that L.R.
No. 7785/9 neighbours 7785/10 to the East and L.R.
12672 (original No. L.R 23) to the West; that in the
subdivision of L.R. 7785/10, a provision of 80 metres
was made for the Northern Bypass as shown in Plan No
131/10, 131/69; 131/14 and 17, which are dated 1976
and 1979, respectively. With respect to the subdivision
of L.R. No. 7785/9, approved in 1993, a provision of 60
metres was made by Mr. Wabaru in 1990.
62. According to Mr. Obel, the properties previously
registered as L.R. No. 7785/9 do not encroach on any
road reserve as the road width was surveyed as 60 and
not 80 metres. He contended, further, that the survey
plans confirming this were checked, approved and
authenticated by the Director of Surveys as required by
the Survey Act and form part of current official survey
records of which the Director of Surveys is the sole
custodian.

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73. The petitioners acknowledge that, as alleged by

the respondents, there was a compulsory acquisition of
land from the mother titles to their properties, L.R
7785/9 and L.R. 12672 (L.R. 23) as well as from
adjoining properties, L.R. 7785/8 and 7785/10. They
submit, however, that while the process of compulsory
acquisition commenced, it was not completed, that it
resulted in acquisition of a 60 metres road reserve with
regard to the mother titles to their property and 80
metres in respect of adjoining properties, and that
therefore the attempt by the respondent to extend the
corridor 20 metres into their property is an unlawful
and arbitrary expropriation of their property, to which
they have an indefeasible title, and therefore violates
Article 40 of the Constitution.
74. The respondents do not challenge the validity of
the petitioners’ title to their respective properties.
Their assertion is that, to the extent that the
petitioners have encroached on 20 metres of the
bypass, their title is defeasible and is not entitled to
the protection afforded by Article 40 of the
Constitution.”
88. On my part, I have re-evaluated the evidence on record. The critical
survey map that determines if the appellants’ properties encroach the
land compulsorily acquired is the plan that delineate the boundary of
parcels of land compulsorily acquired in 1970. At paragraph 57 of the trial
court’s judgment quoted above, it is established as proven that in the
subdivision of L.R. 7785/10, a provision of 80 metres was made for the
Northern Bypass as shown in Plan No 131/10, 131/69; 131/14 and 17,
which are dated 1976 and 1979, respectively.(Emphasis supplied). In my
view, the plans prepared in 1976 and 1979 before the dispute arose in this
matter have a higher probative value. I endorse and approve these plans
and find that indeed, the appellants’ properties encroach the 80 metres
road reserve that had been compulsorily acquired by the Government in
1970.

89. However, the appellants’ properties are not on LR 7785/10 but on L.R
7785/9. The factual and legal question is not the width of the road but
whether the portion of land compulsorily acquired by the government in
1970 extends into the appellants’ properties which are on the original
mother titles.
90. On this question, I have considered the evidence on record and
applicable law. The testimony by Mr. Reuben Mwenda Murugu, a
Senior Assistant Director of Survey in the Ministry of Lands, is to the effect
that the coordinates where the road is 80 metres tally with the land
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acquired for the road. He testified the coordinates are measured by

theodolite and the appellants’ surveyor should have used theodolite to
establish the dimensions of the land parcels. He also testified that the
survey plans that is incorrect is the one for LR 7785/9 and Plan No. 209/70
and 207/35 and further testified the other incorrect survey plan is in
respect of LR No. 12672 (LR 23) and the Plan No. is FR/297/8 and 163/86.
91. I have considered the evidence by the respondent as given in the
testimony of Mr. Reuben Mwenda Murugu. To controvert the
respondents’ testimony, the appellants relied on survey report and
testimony of Mr. John Dominic Obel, a licensed survey since 1988 who
retired in 1997 in the position of Deputy Director of Survey. The testimony
of Mr. John Dominic Obel in relevant excerpts is as follows:

“If there was an acquisition and the surveyor

proceeded on the basis of a survey plan and produced a
60m instead of 80m, then the plan would be defective.”
“A surveyor in sub-dividing a parcel would use survey
data from survey control points which would enable
him to survey the neighbouring plots.”
“In the case of 7785/9, the nearest survey plan
existing for which he could use beacons was LR
7785/10.”
“I did not find the documents for LR 7785/9 in the
technical file.”
92. My consideration, analysis and evaluation of the expert evidence of
Mr. Reuben Mwenda Murugu and Mr.John Dominic Obel both
licensed surveyors lead me to conclude that the 60 metres width of for the
road reserve was inserted by the appellants’ surveyors. In my view, in the
instant matter, the width of the road reserve is not determined by a
private surveyor; the width is determined by the exact land compulsorily
acquired by the government in 1970. The boundaries of the land acquired
by the government in 1970 is the controlling factor. I am satisfied that
portions of the appellants’ land encroach the land acquired by the
government in 1970. There is no evidence on record to show that the
appellants surveyor Mr. Wabaru, who in 1993 sub-divided L.R. No. 7785/9
and created a provision of 60 metres wide road reserve used the
appropriate beacon control coordinates in establishing the width of the
road reserve. In addition, it is not clear which road he was creating: was he
creating a road of 60 metres wide for the sub-divided plots or was he
identifying and putting aside the public road compulsorily acquired by the
government in 1970. In the absence of such evidence on record, I am
satisfied the 60 metres wide road created by the private surveyor in the
sub-division of LR N0. 7785/9 did not factor the road reserve compulsorily
acquired by the government in 1970.
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93. Another issue urged by the appellants is the judge erred in finding
public land acquired through compulsory acquisition is an overriding
interest under Section 30 of the Registered Land Act. It was submitted
failure by the Government to register its interest relating to the acquired
land pursuant to Section 17 of the Land Acquisition Act imply no
interest was acquired by the Government over the road reserve; that
compulsory acquisition can only be effected by registration consistent with
the provisions of the Land Acquisition Act; no overriding interest of
compulsory acquisition could be acquired without registration.
94. The trial judge in considering the issue of overriding interest
observed:
“[31] It is the respondents’ case that the petitioners’
claim of constitutional violations is baseless as the land
was compulsorily acquired and such acquisition
constituted an overriding interest which cannot be
noted in the register under the provisions of section 30
of the Registered Land Act. Furthermore, the
respondents argued, Article 4 does not apply to
illegally acquired land.

[104] It is true that the petitioners have a right to own

property, and they are entitled to their properties to
the extent that such properties have not encroached
upon land that was acquired and set aside for a public
purpose. Their right to property must be exercised
within and in accordance with the framework of the
law. Public lands acquired through compulsory
acquisition are amongst the overriding interests
stipulated under section 30 of the Registered Land Act
which qualify the indefeasibility of title acquired under
the Act as provided in section 28(b) above. The
petitioners’ titles, to the extent that they comprise
land which forms part of the Northern Bypass, are
defeasible to that extent.”
95. The legal issue for my determination is whether the government claim
to land acquired through compulsory acquisition is registrable and if not
registered whether such interest is an overriding interest or the claim is
extinguished by non-registration.
96. Section 20 (2) (b) of the Land Acquisition Act stipulates that
where only part of the land has been acquired, upon compulsory
acquisition, if the title documents are not forthcoming the Commissioner
shall cause an entry to be made in the register recording the acquisition of
the land under the Act. A reading of the Section shows an entry has to be
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made in the register. In the instant case, no entry was recorded. What is
the legal consequence of failure to record and show an entry of the
compulsory acquisition in the register"

97. The trial judge held that the consequence of non-registration is the
acquisition becomes an overriding interest.
98. The appellants submitted that the legal consequence is that the
process of compulsory acquisition is incomplete and as such, the
government does not acquire any interest in the land. Founded on this
premise, the appellants contend the title deeds to their properties are
indefeasible since there was no encumbrance, entry of compulsory
acquisition or any government affectation registered against their titles.
99. The respondents contend the consequence of failure by the
Commissioner to record and make an entry in the register makes the
compulsory acquisition of the road reserve to be an overriding interest
that need not be noted on the mother title; that any third party acquiring
part or the whole of parcels of land compulsorily acquired by the
Government in 1970 do so subject to the overriding interest signified by
compulsory acquisition as evidenced by the Gazette Notices of 1970.
100. Waki, JA in Kenya National Highway Authority vs. Shalien
Masood Mughal & 5 others [2017] eKLR had occasion to consider the
issue of overriding interest in relation to compulsory acquisition. He opined
as follows:

“[37] …...The fact of the matter is that there was in

existence a road reserve before the disputed plot came
into being in 2002 and it was not open for any authority
to alienate it further for private development. The
whole world ought to have been aware, as was
ultimately established, that there was a road reserve of
80 meters and a buffer zone of 30 meters which did not
in law have to be noted in any land register. It is an
overriding interest and not an equitable interest.
[44] ……I have found that the road reserve existed
before the disputed plot. It was an overriding legal
interest unaffected by the rights of any subsequent
purchaser whether such purchaser had notice of it or
not….
101. The answer as to whether a proprietary right acquired or in the
process of acquirement through compulsory acquisition is an overriding
interest lies in the statutory definition of an overriding interest.

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102. Section 30 (a) of RLA stipulate rights of way subsisting at the time
of first registration is an overriding interest. Section 30 (c) of RLA specify
rights of compulsory acquisition, resumption, entry, search and user
conferred by any other written law are overriding interests.
103. In the instant matter, the appellants do not dispute that the
Government compulsorily acquired parts LR 7785/9 and LR 12672
(formerly LR 23) for purposes of a road reserve. Pursuant to Section 30
(a) of RLA a right of way subsisting at the time of first registration is an
overriding interest. The appellants’ titles to their respective properties are
a first registration after sub-division of the mother title. Their titles and
plots came into existence long after the right of way in the road reserve
had been created and established. In relation to compulsory acquisition, in
the instant matter, once an award or compensation was paid in relation to
the land compulsorily acquired vide the Gazette Notices No. 3440 and
3439 of 20th November 1970, the proprietary interest of the government
had arisen over the portions acquired. I find the interest of the
government ensuing from compulsory acquisition is recognized and
protected as an overriding interest under Section 30 (c) of the RLA.
Accordingly, I find the trial judge did not err in holding the government
rights over the acquired parcels of land were an overriding interest.

104. Having held that the appellants’ properties encroach on the road
reserve, the legal issue is whether the appellants can acquire title and
proprietary rights to portions of their respective plots that encroach the
land compulsorily acquired by the Government in 1970. The appellants
contend, yes, they have proprietary rights and interest over these parts or
portions because first, they did not know their properties encroached on
the road reserve; second, there was no rectification and entry in the
Register to warn and notify them the fact of compulsory acquisition and
third, they were under no legal duty to conduct search and inquiries at the
Ministry of Roads and finally, their titles are indefeasible under Section
28 of the RLA.
105. A land compulsorily acquired for public purpose cannot subsequently
be diverted to serve private need. If a property is ostensibly acquired for
public purpose it remains public land. In the instant case, if the appellants
are to be permitted to exercise proprietary rights over portions of land
acquired for public purpose as a road reserve, this will be unlawful. This
Court can not countenance a situation where land is compulsorily acquired
and then sanction the same to be given to private individuals for no-
consideration to the Government.

106. At the risk of repetition, the appellants contend that there was non-
compliance with the provisions of Sections 17 and 20 (2) (b) of the
Land Acquisition Act as well as non-compliance with the provisions of
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Section 12 (1) (b) of the RLA. It is the appellants’ contestation that the
Commissioner of Lands having failed to undertake a final survey of the
land acquired and cause the register to be rectified, the compulsory
acquisition was incomplete, null and void.
107. Comparatively, in Oviawe vs. Integrated Rubber Products
Nigeria Limited, 3, NWLR (Pt. 492) 126, SC 142/1992, the Nigerian
Supreme Court in a lead judgment of Mohammed JSC stated that “what is
material to the vesting of land in the government under compulsory
acquisition is the issuance of notice of intention to acquire the land.”

108. I have considered the appellants’ contestation. The evidence on

record shows there is a Gazette Notice No. 3439 dated 20 th November
1970 expressing the intention of the Government to compulsorily acquire
the land. There is on record a Gazette Notice No. 3440 dated 20 th
November 1970 on inquiry to compensation. There is on record evidence
proving award of compensation was paid to the then registered
proprietors of the parcels of land acquired.
109. Gazettement, inquiry and compensation are sine qua non to validity
of the process of compulsory acquisition. Failure to comply with these
three sine qua non is substantial non-compliance with the law on
compulsorily acquisition of land. The rest are administrative processes
whose non-compliance cannot, without more, nullify rights acquired or
extinguished subsequent to gazettement, inquiry and compensation. In
my view, the Gazette Notices and payment of compensation in this matter
depict substantial compliance with the provisions of the Land Acquisition
Act. This substantial compliance renders the compulsory acquisition of the
road reserve legal and valid. I hasten to add substantial non-compliance
with the sine qua non provisions of the Land Acquisition Act would render
the acquisition bad and the acquiring authority can neither acquire nor be
vested with any interest in land.

110. An issue urged by the appellants is the government did not take
possession of the road reserve and as such, there was no vesting of the
land in the Government. Section 19 (4) of the Land Acquisition Act
provides that after taking possession of land that has compulsorily been
acquired the land vests in the Government absolutely free from
encumbrances. It sounds superfluous and rhetorical, but how does a
government take possession of a road reserve" What is the consequence
of the government not taking possession of land compulsorily acquired" Is
the government interest extinguished if there is no possession" Is
possession of the acquired land a sine qua non to completion and validity
of a compulsory acquisition"
111. Without attempting to answer all the questions, I state that there can
be no prescriptive right against government land. Even if the government
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does not take possession of any of its property, its title cannot be
extinguished by prescriptive rights. Section 41 (1) (a) and Section 42
(1) (d) of the Limitation of Actions Act is to this effect. (See also India
Supreme Court decision in V. Chandrasekaran & another vs.
Administrative Officer & others, Civil Appeal Nos. 6342-6343 of
2012; see also Fruit & Vegetable Merchants Union vs. The Delhi
Improvement Trust, AIR 1957 SC 344)
112. Comparatively, the Indian Supreme Court in Balwant Narayan
Bhagde vs. M. D. Bhagwat & Others AIR 1767, 1975 SCR 250,
Untwalia, J. opined that if the property is land over which there is no
building or structure, possession becomes complete and effective by going
upon the land. He further opined that when a public notice is published
stating that the government intends to take possession of the land, then
ordinarily and generally there should be no question of resisting or
impeding the taking of possession. Delivery or giving of possession by the
owner or occupant is not required. In the same case Bhagwati, J, opined
that how possession may be taken depends on the nature of the land and
there is no hard and fast rule laying down what act would be sufficient to
constitute taking of possession of land and merely possession on paper is
not enough. (See also Banda Development Authority, Banda vs. Moti
Lal Agarwal & Others, (2011) Civil Appeal No. 3604 of 2011 at para.
34 where it is stated if land acquired is vacant, the act of the state
authority going to the spot will ordinarily be treated as sufficient to
constitute taking of possession). In the instant matter, I find upon payment
of compensation and award to the original registered owners, Government
constructively took possession of the portions of land acquired. The
Government need not fence or put up any structure to indicate it has
taken possession of any land compulsorily acquired. For clarity, the
provisions of Section 120 of the Land Act No. 6 of 2012 make detailed
provision on formal taking of possession by the Government upon
compulsory acquisition.

113. In this matter, the appellants contend their titles to their respective
suit properties are indefeasible; they acquired their respective titles by
transfer. Is it possible in law for the appellants to acquire by way of
transfer any interest in the portions of land that were acquired by the
Government through compulsory acquisition in 1970" The answer to this
question is discernible from the statement by Law, JA in Commissioner of
Lands vs. Essaji Jiwaji & Public Trustee [1978] eKLR where he
expressed himself thus:
“When property is compulsorily acquired by the
Government, it vests in the Government. The previous
owners merely loses his rights and title to the property;
he does not in any sense transfer the property.”

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114. In the instant case, the previous owners of the road reserve who had
been compensated lost their rights, interest and title thereto. Upon the
compulsory acquisition, the proprietary rights in the road reserve had
vested upon the Government. There is and was no land within the
boundaries of the road reserve that was capable of being transferred by
anyone to the appellants. It follows the appellants acquired no right or
interest in law or equity over land within the boundaries of the road
reserve.
115. In further support of the appeal, the appellants sought a declaration
that they were not under any duty to check the records or plans of any
other Ministry in respect of land; that since the Director of Survey record
shows the road reserve as it passes along the appellants’ properties is 60
metres wide, the appellants had no way of knowing the road reserve was
80 metres; it was that urged the appellants had exercised due diligence
and conducted a search at the Lands Office and there is no entry on an
overriding interest or any entry relating to compulsory acquisition. Based
on the foregoing, the appellants submitted the judge erred in relying on
drawings by the respondents that do not meet the threshold for Survey
Plans under the Survey Act; the judge erred in abandoning the titles and
deed plans issued to the appellants by the Commissioner of Lands and
Registrar of Titles and instead relied on oral evidence by Surveyors.

116. The contestation by the appellants as stated above can be reduced

to two issues namely: first, the judge erred in evaluation of evidence on
record and second, the record at the Registrar of Lands and in the office of
Director of Survey and all records and entries in the Register at the lands
office is conclusive proof of the entries thereon and no extraneous
evidence can be adduced to challenge the record; that since the register
at the lands office does not indicate any encumbrance or road reserve
against the appellants’ properties, their titles are indefeasible.
117. It is the appellants’ contention that they were diligent and did search
at the lands office. To be diligent, a buyer is not required to do anything
more than follow a normal procedure. At this point, I am minded to cite
Section 27 (1) of the Survey Act which provides as follows:

“27 (1) It shall be the duty of every grantee to

ascertain, within sixty days after he has received his
grant, that the survey marks shown on any plan
attached to his grant or referred to therein are in place
as shown on the plan.
118. The appellants’ titles are RLA titles; this is the Torrens system of
land registration. In Breskvar vs. Wall (1971) 126 CLR it was stated the
Torrens system is not a system of registration of title but a system of title
by registration. It is a system which places emphasis on the accuracy of
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the land register and the register must mirror all currently active
registrable interests affecting a particular parcel of land. Under the
Torrens system, the Government as the keeper of the master record of all
land and its respective owners, guarantee indefeasibility of all rights and
interests shown in the land register against the entire world; and in case of
loss arising from an error in registration, the person affected is guaranteed
Government compensation. It is in this context that the appellants seek an
alternative prayer in their memorandum of appeal that the respondents
make prompt payment in full of just compensation to pursuant to the
provisions of Article 40 of the Constitution.
119. The statutory presumption of indefeasibility and conclusiveness of
title under the Torrens system is rebuttable by proof of fraud or
misrepresentation in which the buyer is involved. The object of the
Torrens system was summarized in the Privy Council decision in Gibbs
vs. Messer 1891 AC 28 or 248 (Privy Council) as follows:

“The main object of the Act and the legislative scheme

for the attainment of that object are equally plain. The
object is to save a person dealing with registered
proprietors from the trouble and expense of going
behind the register, in order to investigate the history
of their author’s title and to satisfy themselves of its
validity. That end is accomplished by providing that
everyone who purchases, in bona fide and for value,
from a registered proprietor and enters his deed of
transfer or mortgage on the register, shall thereby
acquire an indefeasible right, notwithstanding the
infirmity of his author’s title.”
120. Under the Torrens system, the title of the registered proprietor is
cleared of any errors, mistakes or hidden defects, the process of
registration acting, if you like, as a publicly funded hospital that remedies
the injuries embedded within that title - a purge of past omissions or
incorrect additions occurring by fiat of registration.
121. Section 23 (1) of the Kenya Registration of Titles Act (RTA)
provides as follows:
“23 (1) The certificate of title issued by the
registrar to a purchaser of land upon a transfer or
transmission by the proprietor thereof shall be
taken by all courts as conclusive of evidence that
the person named therein as proprietor of the
land is the absolute and indefeasible owner
thereof, subject to the encumbrances, easements,
restrictions and conditions therein or endorsed
thereon, and the title of that proprietor shall not
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be subject to challenge, except on the ground of

fraud or misrepresentation to which he is proved
to be a party.”

122. Section 23 (1) of the RTA has substantially been reproduced as

Section 26 (1) of the Land Registration Act No. 3 of 2012 which
repeals the RTA in the schedule thereof. Section 26 (1) (b) of the Land
Registration Act introduces a new provision where the certificate of title
issued by the Registrar is subject to challenge if the title was acquired
illegally, unprocedurally or through a corrupt scheme. Section 26 (1) (b)
of the Land Registration Act is in tandem with Article 40 (6) of the
Constitution.
123. In Kenya, in Charles Karathe Kiarie & 2 others vs. Administrators of
the Estate of John Wallace Mathare (Deceased) & 5 others [2013]
eKLR this Court affirmed the principles of Torrens System of titles namely:
(a) the Government, as a keeper of records guarantees indefeasibility of
title against entire world; (b) if anyone suffers loss, the Government
compensates; (c) the buyer is not concerned about past irregularities and
illegality and (d) a bona fide buyer notwithstanding infirmity of the
vendor’s title, acquires indefeasible title.
124. Notwithstanding, there is conflicting jurisprudence on indefeasibility
of title. This Court, in Arthi Highway Developers Limited vs. West End
Butchery Limited & 6 others [2015] eKLR struck down as invalid titles
transferred to bona fide purchasers, after having found that there was
fraud in the initial transfer from the first owner. In contrast, in Permanent
Markets Society & 11 others vs. Salima Enterprises & 2 others
[1997] eKLR it was held that even where it is shown that previous
registrations were obtained illegally, the title of the last bona fide
purchaser for value is indefeasible. In Lawrence Mukiri vs. Attorney
General & 4 Others [2013] eKLR it was expressed:

“... a bona fide purchaser for value is a person who

honestly intends to purchase the property offered for
sale and does not intend to acquire it wrongly.”
125. In the instant matter, there is no evidence on record that the
appellants were involved in any fraud in securing their registration as
proprietors to their respective plots and parcels of land. There is no
evidence on record that there was any misrepresentation by the
appellants. The trial judge correctly captured this and stated:
“[105] …... The petitioners are, in my view, unwitting
victims of landowners who sold properties to them
without having regard to the public interest in the
portions of their properties that had been compulsorily

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acquired for construction of the Northern Bypass

corridor, and of surveyors who have prepared
subdivision plans either in ignorance or disregard of
the existing road corridor. Whatever the case, I can find
no basis for alleging violation of the petitioners’
constitutional right to property by the respondents.”
126. I do affirm the trial court’s finding that the appellants were unwitting
victims. Does this finding entitle the appellants to indefeasibility of their
respective titles under the Torrens system as applied in Kenya vide
Section 28 of RLA and Section 23 of the RTA" Does indefeasibility of
title extend to indefeasibility and non-alteration or non-rectification of the
boundaries of a parcel of land if the boundary as reflected on the title is
mistaken or erroneous"

127. Comparative jurisprudence from Australia, the home of the Torrens

system, is illuminating. In Lukacs vs. Wood (1978) 19 SASR 520, the
intent of the vendor was to transfer three vacant parcels of land to the
defendant. There was a mis-description in the contract that saw the
defendant receive title to two vacant blocks of land, plus a third title, on
which was built an apartment dwelling. It was some two years post
settlement that the mistake was realized. The vendors sought to correct
the mistake and the defendant responded that indefeasibility of title
allowed him to retain title to the land on which the apartments stood. The
Supreme Court of South Australia held in favour of the vendors. There was
a mistake in the conveyancing process, a total failure of consideration and
this rendered the contract void.
128. In Tutt vs. Doyle (1997) 42 NSWLR 10, because of a mistake in
the transfer process, Tutt received a block of land larger than what was
intended. He was aware that a mistake had been made. The New South
Wales Court of Appeal saw the question quite simply — was it
unconscionable for one party to take advantage of another’s mistake. The
answer was yes. The transfer was held to be null and void on account of
mistake.

129. In the Indian case of V. Chandrasekaran & another vs. The

Administrative Officers & others, [2012] 10 S. C.R. 603 it was held a
person who purchases land subsequent to the issuance of a notification of
compulsory acquisition with respect to the land is not competent to
challenge the validity of the acquisition proceedings on any ground
whatsoever, for the reason that the sale deed executed in his favour does
not confer upon him any title. The Supreme Court further held:
“…. the tenure holders, the person-interested, neither
filed objections under Section 5-A of the Indian Land
Acquisition Act, nor had they challenged the land
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acquisition proceedings, so far as the suit land is

concerned; instead they chose to withdraw the
compensation awarded in 1983 and 1986; after the
expiry of about three decades and hence, they cannot
be permitted to challenge the acquisition proceedings
on any ground whatsoever. The appellants cannot claim
title/relief better than what the original vendors were
entitled to.”
130. In Pandit Leela Ram vs. Union of India, AIR 1975 SC2112, the
Indian Supreme Court held that anyone who deals with the land
subsequent to a notification of compulsory acquisition being issued, does
so, at his own peril. In Sneh Prabha vs. State of Uttar Pradesh,
AIR1996 SC 540, it was held “the notification for compulsory acquisition
gives a notice to the public at large that the land in respect to which it has
been issued, is needed for a public purpose, and it further points out that
there will be “an impediment to anyone to encumber the land acquired
thereunder.” In U.P. Jal Nigam vs. M/s. Kalra Properties Pvt. Ltd.,
AIR 1996 SC 1170, it was held that purchase of land after publication of
notification of compulsory acquisition in relation to such land, is void
against the State. In Ajay Kishan Singhal vs. Union of India, AIR 1996
SC2677; Mahavir & Anr. vs. Rural Institute, Amravati & Anr.,
(1995) 5 SCC 335; Gian Chand vs. Gopala & Ors., (1995) 2SCC 528;
and Meera Sahni vs. Lieutenant Governor of Delhi& Ors., (2008) 9
SCC 177, the Indian Supreme Court categorically held that a person who
purchases land after the publication of a notice of compulsory acquisition
notification with respect to it, is not entitled to challenge the proceedings
for the reason, that his title is void.

131. Comparative jurisprudence from the Indian Supreme Court show that
once the land is vested in the State vide compulsory acquisition, free from
all encumbrances, it cannot be divested and proceedings under the
Acquisition Act would not lapse, even if an award is not made within the
statutorily stipulated period. (Vide: Avadh Behari Yadav vs. State of
Bihar &. Ors., (1995)6 SCC 31; U.P. Jal Nigam vs. Kalra Properties
(P) Ltd. (Supra); Allahabad Development Authority vs.
Nasiruzzaman & Ors., (1996) 6 SCC 424, M. Ramalinga Thevar vs.
State of TamilNadu & Ors., (2000) 4 SCC 322; and Government of
Andhra Pradesh vs. Syed Akbar & Ors., AIR 2005 SC 492).17). The
said land, once acquired, cannot be restored to the tenure
holders/persons-interested, even if it is not used for the purpose for which
it was so acquired, or for any other purpose either.

132. The Supreme Court of India in Gian Chand -v- Gopala & others
(1995) SCC (2)) 528, JT 1995 (2) 513 was faced with an illuminating
case. The appellant had entered into an agreement with the respondent
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on 13.1.78 to purchase 1/3 share of the land belonging to the respondent

for a total consideration of Rs. 78,000/- and paid a sum of Rs. 20,000/- as
earnest money. The sale deed was to be executed on or before 30.4.78.
Later the appellant came to know that notification under Section 4(1) of
the Land Acquisition Act, 1894 was published on 3.8.77 which fact was
concealed to the appellant, so he had filed the suit for refund of the
earnest money. The Supreme Court expressed itself as follows:
“Admittedly, since the notification under Section 4(1)
of the Land Acquisition Act was already published, the
question arises whether the appellant could get a sale
deed executed and in its absence whether he is entitled
to obtain refund of earnest money paid under the
agreement. On publication of notification under Section
4(1) of the Act, though it is not conclusive till
declaration under Section 6 was published, the owner
of the land is interdicted to deal with the land as a free
agent and to create encumbrances thereon or to deal
with the land in any manner detrimental for public
purpose. Therefore, though notification under Section
4(1) is not conclusive, the owner of the land is
prevented from encumbering the land in that such
encumbrance does not bind the Government. If
ultimately, declaration under Section 6 is published and
acquisition is proceeded with, it would be conclusive
evidence of public purpose and the Government is
entitled to have the land acquired and take possession
free from all encumbrances. Any sale transaction or
encumbrances created by the owner after the
publication of notification under Section 4(1) would
therefore be void and does not bind the State. (See
also Supreme Court of India Smt. Sneh Prabha Etc – v-
State of U.P. & another 1996 AIR, 1996, SCC (7) 426)”

133. In the instant appeal, persuaded by the comparative jurisprudence, I

find the appellants’ titles are defeasible to the extent that they encroach
on a public road reserve. My finding is fortified by the provisions of Article
40 (6) of the Constitution wherein protection of private property does not
extend to property unlawfully acquired. I am further guided by the
provision of Section 26 (1) (b) of the Land Registration Act No. 3 of
2012 which stipulates a certificate of title can be challenged if title was
acquired illegally, unprocedurally or through a corrupt scheme. In the
instant case, the appellants’ titles were acquired illegally and
unprocedurally. Illegally because public land that has been compulsorily
acquired cannot be transferred to private individuals; and the vendor to
the appellants had no interest in and no right to transfer any public land. I
am further convinced the appellants are not entitled to retain any portion
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of the road reserve for to do so will be violating procurement laws where

public property is given to private individuals without following the
procurement process and without any consideration given or paid to the
Government.

134. I am also cognizant of the dicta by Maraga, J (now Chief

Justice) in Republic vs. Minister For Transport & Communication & 5
Others Ex Parte Waa Ship Garbage Collector & 15 Others Mombasa
HCMCA No. 617 of 2003 [2006] 1 KLR (E&L) 563 where he expressed
himself as follows:
“Courts should nullify titles by land grabbers who
stare at your face and wave to you a title of the land
grabbed and loudly plead the principle of the
indefeasibility of title deed...It is quite evident that
should a constitutional challenge succeed either under
the trust land provisions of the Constitution or under
section 1 and 1A of the Constitution or under the
doctrine of public trust a title would have to be nullified
because the Constitution is supreme law and a party
cannot plead the principle of indefeasibility which is a
statutory concept. A democratic society holds public
land and resources in trust for the needs of that
society. Alienation of land that defeats the public
interest goes against the letter and spirit of section 1
and 1A of the Constitution.”
135. In the same vein in Chemei Investments Limited vs The
Attorney General & Others Nairobi Petition No. 94 of 2005 at para.
64 it was held:
“The Constitution protects a higher value, that of
integrity and the rule of law. These values cannot be
side stepped by imposing legal blinders based on
indefeasibility. I therefore adopt the sentiments of the
court in the case of Milankumar Shah and 2 Others -vs-
City Council of Nairobi & Attorney General (Nairobi HCC
Suit No. 1024 of 2005 (05) where the Court stated as
follows, “We hold that the registration of title to land is
absolute and indefeasible to the extent, firstly, that the
creation of such title was in accordance with the
applicable law and secondly, where it is demonstrated
to a degree higher than the balance of probability that
such registration was procured through persons or
body which claims and relies on that principle has not
himself or itself been part of a cartel which schemed to
disregard the applicable law and the public interest.”

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136. I re-affirm dicta by Law, JA in in Commissioner of Lands vs. Essaji

Jiwaji & Public Trustee [1978] eKLR where he expressed himself as
follows:
“When property is compulsorily acquired by the
Government, it vests in the Government. The previous
owners merely lose his rights and title to the property;
he does not in any sense transfer the property.”
137. In the instant appeal, the previous owners of the road reserve had
lost their rights and title thereto. The rights in the road reserve vested
upon the Government, there was no land within the boundaries of the road
reserve that was capable of being transferred by anyone to the appellants.
138. The appellants in the alternative prayed for compensation. There is
no question of the appellants being compensated by the Goverment. What
property of the appellants has been acquired for them to be compensated"
The Government cannot compensate twice for the same parcel of land;
the Government cannot compensate the appellants for land it owns; this
would amount to giving the appellants money for no consideration – what
is the Government buying from the appellants" Its own land" The
Government cannot re-acquire and re-compensate the same land twice
over, the more so the land it already owns. The Government cannot divest
itself land compulsorily acquired for a public purpose and confer the same
to private individuals at no consideration. Land once acquired for public
purpose remains vested in the Government or designated public body for
public purpose and no other purpose. In this context, we are cognizant of
dicta from the Supreme Court of India in Collector of Bombay vs.
Nusserwanji Rattanji Mistri and Ors, AIR 1955 SC 298; where it was
held Government interest in land cannot be acquired through compulsory
acquisition.

139. In Milankumar Shah and 2 Others vs. City Council of Nairobi &
Attorney General (Nairobi HCC Suit No. 1024 of 2005 (05), it was
correctly expressed:
“[21] The concept of absolute and indefeasible
ownership of land cannot be clothed with legal and
constitutional protection if the interest was acquired
through fraud, misrepresentation, illegality,
unprocedural ways or corrupt schemes. This concept
cannot be used to sanitize the commissioner if it
allocates or issues title in such manner. In the case of
Champaklal Ramji Shah & 3 Anors –v- AG & Anor, HCCC
No. 145 of 1997, it was held that the court has a duty to
examine the process of acquisition of such title and if it

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determines that there is an illegality, should nullify the

titles as required.
140. I am convinced and persuaded by the merits and reasoning in the
local and comparative jurisprudence that a title under the Torrens system
is defeasible on account of mistake, misrepresentation, fraud and
illegality. For this reason, it is not sufficient for the appellants to wave an
RLA or RTA title and assert indefeasibility. If a mistake is proved or total
failure of consideration or other vitiating constitutional or statutory factors,
an RLA or RTA title is defeasible.

141. If at all the appellants are entitled to any remedy, the provisions of
Section 81(1) (b) and 85 of the Land Registration Act comes into
play. Section 81
(1) (b) provides that a person suffering damage by reason of
any error in a copy of or extract from the register is entitled to
indemnity.
142. Section 85 of the Land Registration Act provides for errors in survey.
The Section stipulates:
85 (1) A claim to indemnity shall not arise between the
national or county government and a proprietor, and no suit
shall be maintained on account of any surplus or deficiency in
the area or measurement of any land disclosed by a survey
showing an area or measurement differing from the area or
measurement disclosed on any subsequent survey or from the
area or measurement shown in the register or on the cadastral
map.
(2) As between a proprietor and any person from or through
whom the proprietor acquired the land, no claim to indemnity
shall be maintainable on account of any surplus or deficiency
in the area or measurement above or below that shown in any
other survey or above or below the area or measurement
shown in the register or on the cadastral map, after a period of
six months from the date of registration of the instrument
under which the proprietor acquired the land.
143. The provisions of Section 110 (2) of the Land Act No. 6 of 2012
is also instructive. The Section provides:
110 (2) If, after land has been compulsorily acquired the
public purpose or interest justifying the compulsory acquisition
fails or ceases, the Commission may offer the original owners
or their successors in title pre-emptive rights to re-acquire the
land, upon restitution to the acquiring authority the full
amount paid as compensation.

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144. In the instant case, I note that the trial judge made an order that the
appellants should surrender 20 metres of their respective portions of land
to the government. The judge expressed as follows:

“[108] ……. In this regard, and to obviate the need for

further action on the part of the respondents for their
removal from the part of the road reserve encroached
upon, I direct that the petitioners do, within the next
ninety (90) days from the date hereof, surrender the 20
metres of land out of their respective parcels that
comprised the road reserve to the respondents. The
titles to the parcels shall be rectified accordingly.
145. The order by the learned judge is erroneous. The encroachment on
the road reserve is not uniform and equidistance in relation to all plots
owned by the appellants. The extent and dimension of encroachment
varies from plot to plot. Accordingly, I vary the judgment and final orders
of the trial court in so far as it directs each of the appellants to surrender
20 metres of its/his/her plot to the Government. I substitute in its place an
order that each appellant is to vacate that part or portion of his/hers/its
plot that encroaches on the road reserve that was compulsorily acquired
by the Government in 1970. Each appellant shall vacate his/hers/its
respective part or portion that encroaches the road reserve within ninety
(90) days from the date of this judgment. The fact that construction of the
Northern by-pass has been completed is neither an excuse nor reason to
fail or decline to vacate the encroaching portions.
146. In the final analysis, the respective title of each appellant is
defeasible and encumbered by government affectation arising from the
compulsorily acquisition of the road reserve in 1970. For the foregoing
reasons and to the extent of variation foretasted, I affirm and uphold the
judgment of the High Court dated 25th April 2013 delivered in Petition Nos.
69 and 70 of 2010. The upshot of my re-evaluation of the evidence and
applicable law is that this appeal has no merit. However, since Ouko and
Sichale, JJ.A are of the contrary view, the final decision of the Court is per
orders contained in the Judgment of Ouko, J.A.
Dated and delivered at Nairobi this 7th day of June, 2019
J. OTIENO-ODEK
....................................
JUDGE OF APPEAL

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