I. Preliminaries
1. The Judgment of this Honourable Court pertains to a claim contained in the Plaint dated 28 th October 2011, filed by Baharini Development Limited , the Plaintiff herein, against the Kenya Agricultural Research Institute (KARI) , and later on transformed to the Kenya Agricultural and Livestock Research Organization (KALRO), the Registrar of Titles, and other related parties, the Defendants herein. The suit concerns ownership and the alleged unlawful revocation of titles to parcels of land known as LR Nos. MN/III/2947 and MN/III/2948, situate at Mtwapa within the County of Kilifi (Hereinafter referred to as “The Suit Properties”).
2. Upon service of the pleadings and Summons to Enter Appearance, the Defendants duly entered appearance. Subsequently, the Defendants filed the following pleadings:-
a) 1 st Defendant filed its Amended Statement of Defence and Counter - Claim dated 14 th June, 2012, asserting that the suit properties formed part of public land reserved for agricultural research purposes.
b) The 2 nd Defendant filed its Statement of Defence dated 20 th May 2022, contending that the registration of the Plaintiff’s titles was based on documents presented to the Registrar which were later found to be irregular.
3. In parallel to the instant suit, the Plaintiff filed Petition No. 20 of 2013 dated 18 th March 2013, challenging Gazette Notice No. 15570 of 26 th November 2010, which purported to revoke its titles, alleging violation of its constitutional rights under the provision of Articles 40 and 47 of the Constitution of Kenya, 2010. In the course of time, the Petition was consolidated with the present suit for purposes of hearing and determination.
4. Thereafter, the parties filed witness statements, affidavits, lists of documents and supplementary bundles.
5. It is instructive to note that, in the course of the proceedings and upon the request by parties, on 11 th October, 2024, the Honorable Court conducted an elaborate Site Visit (“Locus in Quo” ) pursuant to the provision of Order 18 Rule 11 and Order 40 Rule 10 of the Civil Procedure Rules, 2010. Eventually, it prepared and shared a report to that effect. The said report forms part of this Judgement for ease of reference hereof.
II. Description of the parties
6. The Plaintiff, Baharini Development Limited , is a limited liability company duly incorporated under the provisions of the Companies Act (Cap 486, Laws of Kenya), with its registered offices in Nairobi and elsewhere within the Republic of Kenya.
7. The 1 st Defendant, Kenya Agricultural Research Institute (KARI) , (KALRO) , is a public body corporate established under the provision Section 13 of the Science and Technology Act (Cap. 250, Laws of Kenya), and subsequently transformed into “ the Kenya Agricultural and Livestock Research Organization (KALRO) under the Kenya Agricultural and Livestock Research Act, No. 17 of 2013. The 1 st Defendant is sued in its capacity as the institution claiming beneficial interest in the suit properties, alleging that they form part of public land reserved for agricultural research.
8. The 2 nd Defendant, The Registrar of Titles, Mombasa, is a public officer charged with the custody, registration, and maintenance of land records under the Registration of Titles Act, Cap. 281, Laws of Kenya) (repealed) and now under the Land Registration Act, No. 3 of 2012. The 2 nd Defendant is sued in her official capacity, having issued Gazette Notice No. 15570 dated 26 th November, 2010 purporting to revoke the Plaintiff’s titles to the suit properties.
III. Court directions before the hearing
9. Upon confirming that the Plaintiff and the Defendants had complied with the provisions of Order 11 of the Civil Procedure Rules, 2010, the Honourable Court directed that the matter be set down for hearing for 3 rd October, 2022 where Plaintiff called out its witness. The 1 st Defendant called its witness on 19 th June, 2023 while the 2 nd Defendant called their witness on 28 th September, 2023. Thereafter the parties marked their cases closed.
IV. The case by the Plaintiff
10. From the filed pleadings in ELC No. 580 of 2011, at all material times relevant to the suit, the Plaintiff was the registered owner of properties L.R. Nos. MN/III/2947 and 2948, having purchased them in July ,2010. Following the registration of the transfers of them to the Plaintiff, it became the registered owner of the suit properties.
11. The Plaintiff paid a sum of Kenya Shillings Thirty Million (Kshs. 30, 000, 000/=) for the purchase of the said properties and also incurred stamp duty charges thereon. Further it duly obtained the rates clearance and consent to transfer in respect of the transfers of the suit properties. In view of the foregoing, the Plaintiff became the legally and absolute registered owner with all the indefeasible titles, rights and interest to the suit properties. The Plaintiff had been in possession of the suit properties since August 2010 and had employed three caretakers who resided at the properties. The caretakers were named: as one Mr. Duncan Watende, Mr. Safari Said and Mr. Charles Koba. It had been the Plaintiff’s intention to construct on the suit properties.
12. On or about 27 th October, 2011, the Plaintiff’s director, Mr. Jatin Patel, received a telephone call from Mr. Watende informing him that some four people had entered into the suit properties accompanied by administration police officers and had identified themselves to Mr. Watende as employees of the Defendant. The said persons informed Mr. Watende that they would return to the suit properties the next day to take possession of the properties and demolish the buildings therein and the perimeter wall, claiming that the properties belonged to the Defendant.
13. The Plaintiff’s aforesaid director immediately contacted his business associate, Mr. Kamal Bhundia, who was based in Mombasa, and requested him to establish what was going on from the police station at Mtwapa. Mr. Kamal proceeded to the police station and was advised by the police officers there that indeed the persons who had visited the suit properties were employees of the Defendant and that they had been accompanied by administration police. The information obtained from the inspector in charge of administration police in Mtwapa was that the Defendant’s employees were supposed to be surveying the area in which the suit properties were situated.
14. The Plaintiff was apprehensive that the Defendant would make good the threat made by its officers who had visited the suit properties, thereby causing the Plaintiff to suffer irreparable damage. The Plaintiff averred that the Defendant, its agents, servants, officers or employees were guilty of trespassing in the Plaintiff’s properties.
15. The Plaintiff relied on the following particulars of trespass:-
a) Entering into the Plaintiff’s properties without the Plaintiff’s consent or permission;
b) Remaining on the Plaintiff’s properties without the Plaintiff’s consent or permission;
c) Threatening the Plaintiff’s possession and ownership of its properties;
d) Threatening the Plaintiff’s employees at the suit properties
16. The Plaintiff averred that the Defendant was vicariously liable for the unlawful acts of its agents, servants, officers or employees. There was no justifiable reason for the threats made by the Defendant’s officers. As a measure of abundant caution, the Plaintiff sought the protection of this Honourable Court to prevent a catastrophe as the Plaintiff’s properties would be damaged and destroyed without lawful cause.
17. The Plaintiff lodged a complaint with the police who advised the Plaintiff to seek a court order to enable them to protect the Plaintiff’s rights over the suit property as the Defendant claimed to own all the properties in that area. In view of the foregoing, unless injunction orders were issued against the Defendant, the Plaintiff would have been at the mercy of the Defendant and its unlawful intentions. The Plaintiff stood to suffer irreparably should the said Defendants carry out their threats as aforesaid.
18. The Defendant was interested in this matter as the party violating the Plaintiff’s rights as aforesaid. The Plaintiff averred that there was no other suit pending and there had been no previous proceedings in any court between the Plaintiff and the Defendant over the same subject matter. The cause of action arose in Mombasa within the jurisdiction of this Honourable Court.
19. The Plaintiff prayed for Judgment against the Defendants for Orders that:-
a) A temporary injunction to restrain the Defendant whether by itself, its servants, agents or employees from entering into, trespassing, demolishing, destroying, damaging or in any manner whatsoever interfering with properties L.R. No. MN/III/2947 and L.R. No. MN/III/2948 and the developments being thereon pending the hearing and determination of this suit.
b) A permanent injunction to restrain the Defendant whether by itself, its servants, agents or employees from entering into, trespassing, demolishing, destroying, damaging or in any manner whatsoever interfering with properties L.R. No. MN/III/2947 and L.R. No. MN/III/2948 and the developments being thereon.
c) Damages for trespass.
d) Costs of and incidental to the suit.
e) Any other relief or remedy that this Honourable Court may deem fit to grant
20. From the pleadings in ELC Petition 20 of 2013, the Petitioner’s case was that:
A. The facts
21. On or about July, 2010, the Petitioner entered into a sale agreement for the purchase of all those parcels of land known as L. R. No. MN/III/2947 and L.R. No. MN/III/2948 - the suit properties situate N. of Mtwapa Creek in Kilifi District and measuring approximately 1.387 hectares and 1.402 hectares respectively. The Petitioner lodged the transfers of the suit properties for registration and paid all the requisite stamp duty and registration fees thereof. The transfers were registered in favour of the Petitioner and the Petitioner took possession of the suit properties and has been in exclusive possession to date. As evidence of the lawful purchase, the 1 st Respondent issued the Petitioner a Grant under the provision of the Registration of Titles Act (repealed) Grant Number C.R. 28310 in respect of L. R. No. MN/III/2947 and a Grant under the provision of the Registration of Titles Act (repealed) Grant Number C.R.31659 in respect of L. R. No. MN/III/2948.
22. The Petitioner had to date paid all the outgoings, namely land rent to the 2 nd Respondent for the years since the purchase of the property. The Petitioner had also paid rates to the County Council of Kilifi. The Petitioner purchased the suit properties at a sum of Kenya Shillings Thirty Million (Kshs. 30, 000, 000/00) and also incurred costs of transfer. The Petitioner was in possession of the suit properties. To date neither of the Respondents had informed the Petitioner of any intention to revoke the Petitioner’s title nor furnished any reason for any such revocation.
23. On or about 27 th October, 2011, employees of the Kenya Agricultural Research Institute entered into the Petitioner’s aforesaid parcels of land accompanied by police officers and threatened to take possession of the suit properties and demolish the buildings therein and the perimeter wall constructed thereon by the Petitioner. By consequence of the threats made by the employees of the Kenya Agricultural Research Institute as aforesaid, the Petitioner established that by Gazette Notice Number 15570 published in the Kenya Gazette issue dated 26 th November, 2010, the 1 st Respondent had caused to be published a “Notification of Revocation of Land Titles, ” with a list of the parcels of land including the Petitioner’s parcels of land, L.R. No. MN/III/2947 and L.R. No. MN/III/2948.
24. The Kenya Agricultural Research Institute was relying on the aforesaid notice to purport to take possession of the Petitioner’s lands aforesaid. Prior to the advertisement aforesaid, the Respondents had made no effort to communicate the purported revocation of title to the Petitioner at all. The Petitioner’s right to own property had been violated and continued to be violated by the Respondents in that:
a. The Respondents did not have legal power to revoke the Petitioner’s titles whether under the repealed Constitution or the named statutes, that is, the Government Land Act, Cap. 280 (Now repealed) and the Trust Land Act.
b. The purported revocation of the Petitioner’s titles was, in essence, a taking of property without compensation.
c. The Petitioner’s parcels of land were private land which could not be expropriated without payment of compensation.
d. The Respondents made a decision to expropriate the Petitioner’s land without according the Petitioner an opportunity to be heard. The administrative decision was made without giving the Petitioner a right to be heard in defence thereto.
e. The Respondents failed to give reasons for the decision to the Petitioner.
f. The due process of law had not been followed by the Respondents in seeking to revoke the Petitioner’s titles.
B. Violation of the Constitution
25. The Petitioner relied on the following violations of the Constitution:
(i) The suit property was private land which the Petitioner had purchased, and title thereof had been issued by the Respondents. Issuance of title was a representation which had been acted upon, that the previous owner was entitled to convey a legitimate conveyance of the suit properties to the Petitioner.
(ii) The Petitioner acted on the representation made by the Respondents and concluded the purchase transaction of the suit properties.
(iii) The Respondents’ purported revocation of the Petitioner’s title to the suit properties was an arbitrary deprivation of property and expressly debarred by the provision of Article 40 (2) of the Constitution.
(iv) The Respondents’ purported revocation of the Petitioner’s title to the suit properties violated the provision of Article 40 (3)(b) of the Constitution to the extent that no compensation had been offered and/or tendered.
(v) The Respondents’ purported revocation of the Petitioner’s title to the suit properties violated the provision of Article 47 (1) of the Constitution to the extent that the decision was capricious, vindictive, callous, and actuated by bad faith.
(vi) The Respondents’ purported revocation of the Petitioner’s title to the suit properties violated the provision of Article 47(2) of the Constitution in that no written reasons for the action had been furnished to the Petitioner to date. Absence of written reasons was ipso facto evidence of want of good faith.
26. The Petitioner humbly prayed that this Honourable Court do issue orders and declarations that:
a) An order of Certiorari do issue to bring to this Honourable Court for the Purposes of being quashed, the 1 st Respondent’s gazette notice number 15570 dated 26 th November, 2010 purporting to revoke the Petitioner’s titles to all those parcels of land comprised in L. R. No. MN/III/2947 and L.R. No. MN/III/2948.
b) An order of Prohibition do issue to prohibit the Respondents by themselves, their servants, agents or whomsoever from alienating the Petitioner’s parcel of land comprised in L. R. No. MN/III/2947 and L. R. No. MN/III/2948 or in any manner interfering with the Petitioner's possession of the said properties.
c) An order of prohibition do issue to prohibit the Respondents by themselves, their servants, agents or whomsoever from in any manner issuing any title and/or license in respect to the Petitioner’s land comprised in L.R. No. MN/III/2947 and L.R. No. MN/III/2948 or registering any encumbrance thereon.
d) An order of Mandamus do issue to compel the Respondents by themselves, their servants, agents to delete any entry on the Petitioner's titles made as a consequence to or in furtherance of the revocation of the Petitioner’s title to all that parcel of land comprised in L.R. No. MN/III/2947 and L.R. No. MN/III/2948.
e) An order of Mandamus do issue to compel the Respondents by themselves, their servants, agents to publish in the Kenya Gazette within thirty (30) days from the making of the order hereof, a legal notice cancelling the revocation of the Petitioner's title to all that parcel of land comprised in L.R. No. MN/III/2947 and L.R. No. MN/III/2948.
f) A declaration that the Respondents’ purported revocation of the Petitioner’s title to L.R. No. MN/III/2947 and L.R. No. MN/III/2948 is unconstitutional, null and void.
g) A declaration that the Grants issued to the Petitioner in respect to L. R. No.MN/III/2947 and L.R. No. MN/III/2948 is conclusive evidence of ownership and that the Petitioner is the absolute and indefeasible owner of the suit property.
h) Damages.
i) Costs of and incidental to this/suit.
27. The Plaintiffs called PW - 1 on 3 rd October, 2022 at 2.30 pm who testified as follows:-
A. Examination in Chief of PW - 1 by Mr. Omwenga Advocate.
28. PW - 1 was sworn and testified in English language. He was called PATRICK IGADWA INZIRA, a citizen of Kenya and holder of the national identity card with all the particulars shown to Court during the hearing of the case. He testified that he worked with the Plaintiff’s Company. PW ‑ 1 filed a witness statement on 20 th January, 2021 and also filed a Supplementary Witness Statement on 3 rd October, 2022. PW ‑ 1 filed a List of Documents dated 21 st December, 2021 together with a Supplementary List of Documents comprising eleven (11) items. They were produced as Plaintiff Exhibit numbers 1 to 11 from the first List of Documents dated 20 th January, 2022, namely:-
a) A copy of Clearance Certificate for Plot No. 2947/3/MN.
b) Consent Letter from the Commissioner of Lands dated 22nd June 2010.
c) Transfer for Plot No. 2947/3/MN dated 5 th July, 2010.
d) Receipt for payment of duty (page 10).
e) A copy of Title deed.
f) A copy Clearance Certificate for Plot No. 2947/3/MN.
g) Consent Letter from the Commissioner of Lands dated 22 nd June 2010.
h) Transfer for Plot No. 2946/3/MN (dated).
i) Receipts of payment.
j) Title deed.
k) Copy of the Kenya Gazette revoking Title No. 14564.
29. The Court admitted the above documents and produced them as Plaintiff’s Exhibit No. 1 to 11. From the Supplementary List of Documents, the Plaintiff further produced Exhibits 12 to 17, save for Item No. 7 of the Supplementary List, as Counsel were not aware of the said suit and the principles of sub judice under the provision of Section 6 of the Civil Procedure Act, Cap. 21 applied. In the year 2010, the Plaintiff had purchased the two suit properties from Shirant Investment Limited and Hanover Holdings Limited under duly executed sale agreements. The purchase price had been sum of Kenya Shillings Thirty Million (Kshs. 30,000,000/-) for both parcels.
30. PW - 1 confirmed that due diligence had been undertaken, and thereafter the properties had been duly transferred to the Plaintiff. In 2011, PW - 1 came to learn that the Kenya Agricultural Research Institute (KARI) was claiming ownership of the properties. Prior to the purchase, PW - 1 had never seen any document evidencing KARI’s ownership. PW - 1 later saw a Letter of Allotment issued to KARI dated 16 th January, 2012, which had come after the Plaintiff had already acquired the land. Therefore, PW - 1 sought the orders as prayed in the Plaint.
B. Cross Examination of PW - 1 by Mr. Oluoch Advocate.
31. PW - 1 had been employed in March, 2009 and was based at the Nairobi Presidential Building. The Plaintiff’s Company was a real estate entity that purchased land, developed properties, and either leased them out or sold them. PW - 1 dealt with only two Directors. He did not know their names unless he referred to them, as he was an employee. PW ‑ 1 did not know the Managing Director. His role was to manage the property and recommend the nature of the property. He drew a salary of a sum of Kenya Shillings Sixty (Kshs. 60,000/-) per month. PW - 1 had authority to testify, although he did not have the written authority with him in court.
32. The two properties had been bought in the year 2010. They were located near Mtwapa. When PW ‑ 1 visited the properties, there were some small fabricated units for workers. PW ‑ 1 did not know who had built the structures and did not know the persons living in them, as they kept on changing.
33. PW - 1 referred to the Defendant’s Bundle of Documents. The vendors of the properties had been private companies. In Baharini Development Limited’s bundle, on page 60, there was a Letter of Allotment for Pineapples Edge Ltd. in respect of LR No. MN/III/2948 Mtwapa dated 9 th May, 1995. On page 55, there was a Letter of Allotment for Kisibet Investment Ltd. in respect of LR No. MN/III/2947 Mtwapa dated 9 th May, 1995.
34. PW - 1 knew that the two parcels had been offered for sale by Shirland Investment Limited and Hanover Holdings Limited at the same time. He referred to the Affidavit of Patel at page 6(b), which contained a letter dated 15 th May, 1992 from the 1 st Defendant and noted that in 1995 the Commissioner of Lands had allocated the land. PW - 1 referred to the Letter of Allotment on page 60. On page 33, there was a letter dated 15 th May, 1992 by the Commissioner of Lands transferring land from KARI to KMFRI (Mtwapa, Mombasa). To the knowledge of PW - 1, his employer had never undertaken any development on the land.
35. PW - 1 referred to page 73, which contained Case No. 77 of 2008 filed by “ KACC - Versus - Nathaniel Tum and others” . PW ‑ 1 was not directly involved in the purchase of the property but had prior information that the company was buying the property. His instructions were derived from what the Directors had informed him. On paragraph 10 of the Supplementary Affidavit, PW - 1 stated that the information had been relayed to him, and that the statement had been sworn by the previous witness. PW - 1 was told that they had been given the title deed. Hanover Holdings Limited knew about the history of the land.
C. Cross Examination of PW - 1 by Ms. Langat Advocate.
36. PW - 1 had worked for the company from the year 2009. PW - 1 did not know his bosses. As the Property Manager, his role had been to deal with the payment of employees and not the management of the properties. PW - 1 did not know whether the company had paid the rates or not.
37. The structures on the land were permanent. PW ‑ 1 had never conducted any history of the property before coming to court, as he had a patient at the time. By the year 2008, PW - 1 had not yet joined the company that sold them the properties. He therefore would not have known whether there had been any inhibition or restriction order of the year 2018 on the property. PW - 1 confirmed that he knew the property was a beach plot.
D. Re - Examination of PW - 1 by Mr. Omwenga Advocate.
38. PW ‑ 1 reported to the team and not directly to the Directors. The Letters of Allotment had been issued in the year 1995. From paragraph 10 of PW ‑ 1’s Supplementary Witness Statement, the Plaintiff had bought the property in the year 2010. Before then, the parcels had been owned by Shirland Investment Limited and Hanover Holdings Limited. There had been no court order arising from Case No. 77 of 2008.
E. Examination for clarity of PW - 1 by the Court.
39. PW ‑ 1 stated that there was no information regarding where Shirland Investment Limited and Hanover Holdings Limited had obtained the land from. PW ‑ 1 further indicated that he did not know whether Mr. Nathaniel Tum had been one of the Directors of Baharini Development Limited.
40. On 3 rd October, 2022, the Learned Counsel for the Plaintiff Mr. Omwenga on behalf of the Plaintiff marked the closure of its case.
V. The case of the 1 st Defendant.
41. The 1 st Defendant opposed the claim through an Amended Statement of Defence and Counter - Claim dated 14 th June, 2012 wherein the 1 st Defendant stated that except what was expressly admitted therein, the Defendant denied each and every allegation contained in the Plaint as if the same were set out verbatim and traversed seriatim. The 1 st Defendant admitted the descriptive parts of Paragraph 2 of the Plaint save that its address for the purposes of the suit.
42. The 1 st Defendant denied the contents of Paragraph 4 of the Plaint as stated and averred that the suit property had been unlawfully and without following procedure excised out of the Defendant’s land without the Defendant’s consent and the purported purchase of the land. The 1 st Defendant was a stranger to the contents of paragraph 5. The 1 st Defendant denied the contents of paragraph 6 of the Plaint as stated and averred that the Registrar of Titles had revoked the titles issued to the Plaintiff and gazetted the land as the Defendant’s property.
43. The 1 st Defendant was a stranger to the contents of Paragraph 7 of the Plaint as stated and stated that the Defendant intended to carry out agricultural and marine research for public good on the said land. The 1 st Defendant averred that the suit property was part of a larger parcel of land which had been unlawfully and without the Defendant’s knowledge and/or consent, and by use of force and intimidation of government employees, taken by private individuals, and that the Defendant had made a report to the Commission of Inquiry on the Illegal Allocation of Public Land, commonly known as the Ndung’u Commission.
44. The 1 st Defendant further averred that the matter had been reported to and investigated by the Kenya Anti ‑ Corruption Commission, the culmination of the said investigation being the revocation of the Plaintiff’s titles among others issued on public land in November, 2010. The 1 st Defendant, acting on the notice gazetted by the Registrar of Titles and on the advice of the Kenya Anti ‑ Corruption Commission, started the survey process for purposes of acquiring title. The 1 st Defendant further averred that the revocation of title by the Registrar of Titles rendered the Plaintiff’s alleged title null and void. The 1 st Defendant denied the contents of Paragraph 11 of the Plaint as stated and averred that it could not have trespassed on its own property.
45. The 1 st Defendant denied the contents of Paragraph 12 of the Plaint and put the Plaintiff to strict proof thereof. The 1 st Defendant denied the contents of Paragraph 13 of the Plaint and put the Plaintiff to strict proof thereof. The 1 st Defendant was a stranger to the contents of paragraph 14. The jurisdiction of this Honourable Court was admitted.
46. For the reasons whereof, the 1 st Defendant prayed that the Plaintiff’s claim against it be dismissed with costs.
47. The 1 st Defendant stated as follows in the Counter claim:-
a. At all times material to this suit, all that parcel of land known as Land Ref. No. “PLOT NO. W/III/1450 (original)” measuring approximately 13.40 hectares was the property of the Defendant, a public institution which had been in continuous occupation of the said parcel of land either by itself or its predecessors in title since the year 1923 or thereabouts.
b. The Commissioner of Lands purported to sub - divide and allocate and issued grants on the said parcel of Land Reference No. PLOT NO MW/III/1450 (original) into 5 plots namely Land Reference Nos. MN/III/2944 MN/III/2945, MN/III/2946, MN/III/2947, and MN/III/2948 without the knowledge, consent, approval and or acquiesce of the Defendant herein which had possession thereof and was in occupation.
c. The making of the said Grants was illegal, ineffectual, erroneous, and ultra-vires the statutory power of the Commissioner of Lands as Land Reference No. PLOT NO MW/III/1450 (original) was at the material time in possession, occupation and use of the defendant having at all times been and remained reserved to for public research purposes and accordingly was not unalienated piece of land.
d. The 1 st Defendant relied on the following particulars of illegality and/ or breach of statutory provisions:-
i) The Plaintiff with full knowledge that Land Reference No. PLOT NO MW/III/1450 (original) was set aside and or reserved for use by the Defendant herein under the Government Lands Act applied for and purported to accept a grant issued under the Registration of Titles Act in respect of Land Reference No. MN/III/2947 and MN/III/2948, portions excised or purportedly excised from the said land;
ii) The Plaintiff accepted a grant made under the Registration of Titles Act in respect of Land Reference No. MN/III/2947 and MN/III/2948 while fully aware that the allocating authority had no power to deal with the land;
iii) The Defendant had never relinquished its interest in Land Reference No. PLOT NO MW/III/1450 (original) nor had the Defendant’s Board of Management made any resolution to surrender, sell, convey, subdivide or otherwise alienate the said land;
iv) Land Reference No Plaintiff had never been brought under the Registration of Titles Act;
v) The Plaintiff purported to deal with the suit land without any or any authority whatsoever;
vi) The Plaintiff shut its eye to the fact that the land was alienated public land set aside and or reserved for agricultural research a activities for the public good as there exists on the two parcels of land the subject of this suit two (2) three bedroomed and two (2) two bedroomed permanent houses belonging to the Defendant which the Plaintiff took possession of and had denied the Defendant access thereto and use thereof;
vii) Plaintiff knowingly facilitated irregular/illegal transfer of alienated Public Land;
viii) The Certificate of Title issued in favour of the
[...truncated]
1. The Judgment of this Honourable Court pertains to a claim contained in the Plaint dated 28 th October 2011, filed by Baharini Development Limited , the Plaintiff herein, against the Kenya Agricultural Research Institute (KARI) , and later on transformed to the Kenya Agricultural and Livestock Research Organization (KALRO), the Registrar of Titles, and other related parties, the Defendants herein. The suit concerns ownership and the alleged unlawful revocation of titles to parcels of land known as LR Nos. MN/III/2947 and MN/III/2948, situate at Mtwapa within the County of Kilifi (Hereinafter referred to as “The Suit Properties”).
2. Upon service of the pleadings and Summons to Enter Appearance, the Defendants duly entered appearance. Subsequently, the Defendants filed the following pleadings:-
a) 1 st Defendant filed its Amended Statement of Defence and Counter - Claim dated 14 th June, 2012, asserting that the suit properties formed part of public land reserved for agricultural research purposes.
b) The 2 nd Defendant filed its Statement of Defence dated 20 th May 2022, contending that the registration of the Plaintiff’s titles was based on documents presented to the Registrar which were later found to be irregular.
3. In parallel to the instant suit, the Plaintiff filed Petition No. 20 of 2013 dated 18 th March 2013, challenging Gazette Notice No. 15570 of 26 th November 2010, which purported to revoke its titles, alleging violation of its constitutional rights under the provision of Articles 40 and 47 of the Constitution of Kenya, 2010. In the course of time, the Petition was consolidated with the present suit for purposes of hearing and determination.
4. Thereafter, the parties filed witness statements, affidavits, lists of documents and supplementary bundles.
5. It is instructive to note that, in the course of the proceedings and upon the request by parties, on 11 th October, 2024, the Honorable Court conducted an elaborate Site Visit (“Locus in Quo” ) pursuant to the provision of Order 18 Rule 11 and Order 40 Rule 10 of the Civil Procedure Rules, 2010. Eventually, it prepared and shared a report to that effect. The said report forms part of this Judgement for ease of reference hereof.
II. Description of the parties
6. The Plaintiff, Baharini Development Limited , is a limited liability company duly incorporated under the provisions of the Companies Act (Cap 486, Laws of Kenya), with its registered offices in Nairobi and elsewhere within the Republic of Kenya.
7. The 1 st Defendant, Kenya Agricultural Research Institute (KARI) , (KALRO) , is a public body corporate established under the provision Section 13 of the Science and Technology Act (Cap. 250, Laws of Kenya), and subsequently transformed into “ the Kenya Agricultural and Livestock Research Organization (KALRO) under the Kenya Agricultural and Livestock Research Act, No. 17 of 2013. The 1 st Defendant is sued in its capacity as the institution claiming beneficial interest in the suit properties, alleging that they form part of public land reserved for agricultural research.
8. The 2 nd Defendant, The Registrar of Titles, Mombasa, is a public officer charged with the custody, registration, and maintenance of land records under the Registration of Titles Act, Cap. 281, Laws of Kenya) (repealed) and now under the Land Registration Act, No. 3 of 2012. The 2 nd Defendant is sued in her official capacity, having issued Gazette Notice No. 15570 dated 26 th November, 2010 purporting to revoke the Plaintiff’s titles to the suit properties.
III. Court directions before the hearing
9. Upon confirming that the Plaintiff and the Defendants had complied with the provisions of Order 11 of the Civil Procedure Rules, 2010, the Honourable Court directed that the matter be set down for hearing for 3 rd October, 2022 where Plaintiff called out its witness. The 1 st Defendant called its witness on 19 th June, 2023 while the 2 nd Defendant called their witness on 28 th September, 2023. Thereafter the parties marked their cases closed.
IV. The case by the Plaintiff
10. From the filed pleadings in ELC No. 580 of 2011, at all material times relevant to the suit, the Plaintiff was the registered owner of properties L.R. Nos. MN/III/2947 and 2948, having purchased them in July ,2010. Following the registration of the transfers of them to the Plaintiff, it became the registered owner of the suit properties.
11. The Plaintiff paid a sum of Kenya Shillings Thirty Million (Kshs. 30, 000, 000/=) for the purchase of the said properties and also incurred stamp duty charges thereon. Further it duly obtained the rates clearance and consent to transfer in respect of the transfers of the suit properties. In view of the foregoing, the Plaintiff became the legally and absolute registered owner with all the indefeasible titles, rights and interest to the suit properties. The Plaintiff had been in possession of the suit properties since August 2010 and had employed three caretakers who resided at the properties. The caretakers were named: as one Mr. Duncan Watende, Mr. Safari Said and Mr. Charles Koba. It had been the Plaintiff’s intention to construct on the suit properties.
12. On or about 27 th October, 2011, the Plaintiff’s director, Mr. Jatin Patel, received a telephone call from Mr. Watende informing him that some four people had entered into the suit properties accompanied by administration police officers and had identified themselves to Mr. Watende as employees of the Defendant. The said persons informed Mr. Watende that they would return to the suit properties the next day to take possession of the properties and demolish the buildings therein and the perimeter wall, claiming that the properties belonged to the Defendant.
13. The Plaintiff’s aforesaid director immediately contacted his business associate, Mr. Kamal Bhundia, who was based in Mombasa, and requested him to establish what was going on from the police station at Mtwapa. Mr. Kamal proceeded to the police station and was advised by the police officers there that indeed the persons who had visited the suit properties were employees of the Defendant and that they had been accompanied by administration police. The information obtained from the inspector in charge of administration police in Mtwapa was that the Defendant’s employees were supposed to be surveying the area in which the suit properties were situated.
14. The Plaintiff was apprehensive that the Defendant would make good the threat made by its officers who had visited the suit properties, thereby causing the Plaintiff to suffer irreparable damage. The Plaintiff averred that the Defendant, its agents, servants, officers or employees were guilty of trespassing in the Plaintiff’s properties.
15. The Plaintiff relied on the following particulars of trespass:-
a) Entering into the Plaintiff’s properties without the Plaintiff’s consent or permission;
b) Remaining on the Plaintiff’s properties without the Plaintiff’s consent or permission;
c) Threatening the Plaintiff’s possession and ownership of its properties;
d) Threatening the Plaintiff’s employees at the suit properties
16. The Plaintiff averred that the Defendant was vicariously liable for the unlawful acts of its agents, servants, officers or employees. There was no justifiable reason for the threats made by the Defendant’s officers. As a measure of abundant caution, the Plaintiff sought the protection of this Honourable Court to prevent a catastrophe as the Plaintiff’s properties would be damaged and destroyed without lawful cause.
17. The Plaintiff lodged a complaint with the police who advised the Plaintiff to seek a court order to enable them to protect the Plaintiff’s rights over the suit property as the Defendant claimed to own all the properties in that area. In view of the foregoing, unless injunction orders were issued against the Defendant, the Plaintiff would have been at the mercy of the Defendant and its unlawful intentions. The Plaintiff stood to suffer irreparably should the said Defendants carry out their threats as aforesaid.
18. The Defendant was interested in this matter as the party violating the Plaintiff’s rights as aforesaid. The Plaintiff averred that there was no other suit pending and there had been no previous proceedings in any court between the Plaintiff and the Defendant over the same subject matter. The cause of action arose in Mombasa within the jurisdiction of this Honourable Court.
19. The Plaintiff prayed for Judgment against the Defendants for Orders that:-
a) A temporary injunction to restrain the Defendant whether by itself, its servants, agents or employees from entering into, trespassing, demolishing, destroying, damaging or in any manner whatsoever interfering with properties L.R. No. MN/III/2947 and L.R. No. MN/III/2948 and the developments being thereon pending the hearing and determination of this suit.
b) A permanent injunction to restrain the Defendant whether by itself, its servants, agents or employees from entering into, trespassing, demolishing, destroying, damaging or in any manner whatsoever interfering with properties L.R. No. MN/III/2947 and L.R. No. MN/III/2948 and the developments being thereon.
c) Damages for trespass.
d) Costs of and incidental to the suit.
e) Any other relief or remedy that this Honourable Court may deem fit to grant
20. From the pleadings in ELC Petition 20 of 2013, the Petitioner’s case was that:
A. The facts
21. On or about July, 2010, the Petitioner entered into a sale agreement for the purchase of all those parcels of land known as L. R. No. MN/III/2947 and L.R. No. MN/III/2948 - the suit properties situate N. of Mtwapa Creek in Kilifi District and measuring approximately 1.387 hectares and 1.402 hectares respectively. The Petitioner lodged the transfers of the suit properties for registration and paid all the requisite stamp duty and registration fees thereof. The transfers were registered in favour of the Petitioner and the Petitioner took possession of the suit properties and has been in exclusive possession to date. As evidence of the lawful purchase, the 1 st Respondent issued the Petitioner a Grant under the provision of the Registration of Titles Act (repealed) Grant Number C.R. 28310 in respect of L. R. No. MN/III/2947 and a Grant under the provision of the Registration of Titles Act (repealed) Grant Number C.R.31659 in respect of L. R. No. MN/III/2948.
22. The Petitioner had to date paid all the outgoings, namely land rent to the 2 nd Respondent for the years since the purchase of the property. The Petitioner had also paid rates to the County Council of Kilifi. The Petitioner purchased the suit properties at a sum of Kenya Shillings Thirty Million (Kshs. 30, 000, 000/00) and also incurred costs of transfer. The Petitioner was in possession of the suit properties. To date neither of the Respondents had informed the Petitioner of any intention to revoke the Petitioner’s title nor furnished any reason for any such revocation.
23. On or about 27 th October, 2011, employees of the Kenya Agricultural Research Institute entered into the Petitioner’s aforesaid parcels of land accompanied by police officers and threatened to take possession of the suit properties and demolish the buildings therein and the perimeter wall constructed thereon by the Petitioner. By consequence of the threats made by the employees of the Kenya Agricultural Research Institute as aforesaid, the Petitioner established that by Gazette Notice Number 15570 published in the Kenya Gazette issue dated 26 th November, 2010, the 1 st Respondent had caused to be published a “Notification of Revocation of Land Titles, ” with a list of the parcels of land including the Petitioner’s parcels of land, L.R. No. MN/III/2947 and L.R. No. MN/III/2948.
24. The Kenya Agricultural Research Institute was relying on the aforesaid notice to purport to take possession of the Petitioner’s lands aforesaid. Prior to the advertisement aforesaid, the Respondents had made no effort to communicate the purported revocation of title to the Petitioner at all. The Petitioner’s right to own property had been violated and continued to be violated by the Respondents in that:
a. The Respondents did not have legal power to revoke the Petitioner’s titles whether under the repealed Constitution or the named statutes, that is, the Government Land Act, Cap. 280 (Now repealed) and the Trust Land Act.
b. The purported revocation of the Petitioner’s titles was, in essence, a taking of property without compensation.
c. The Petitioner’s parcels of land were private land which could not be expropriated without payment of compensation.
d. The Respondents made a decision to expropriate the Petitioner’s land without according the Petitioner an opportunity to be heard. The administrative decision was made without giving the Petitioner a right to be heard in defence thereto.
e. The Respondents failed to give reasons for the decision to the Petitioner.
f. The due process of law had not been followed by the Respondents in seeking to revoke the Petitioner’s titles.
B. Violation of the Constitution
25. The Petitioner relied on the following violations of the Constitution:
(i) The suit property was private land which the Petitioner had purchased, and title thereof had been issued by the Respondents. Issuance of title was a representation which had been acted upon, that the previous owner was entitled to convey a legitimate conveyance of the suit properties to the Petitioner.
(ii) The Petitioner acted on the representation made by the Respondents and concluded the purchase transaction of the suit properties.
(iii) The Respondents’ purported revocation of the Petitioner’s title to the suit properties was an arbitrary deprivation of property and expressly debarred by the provision of Article 40 (2) of the Constitution.
(iv) The Respondents’ purported revocation of the Petitioner’s title to the suit properties violated the provision of Article 40 (3)(b) of the Constitution to the extent that no compensation had been offered and/or tendered.
(v) The Respondents’ purported revocation of the Petitioner’s title to the suit properties violated the provision of Article 47 (1) of the Constitution to the extent that the decision was capricious, vindictive, callous, and actuated by bad faith.
(vi) The Respondents’ purported revocation of the Petitioner’s title to the suit properties violated the provision of Article 47(2) of the Constitution in that no written reasons for the action had been furnished to the Petitioner to date. Absence of written reasons was ipso facto evidence of want of good faith.
26. The Petitioner humbly prayed that this Honourable Court do issue orders and declarations that:
a) An order of Certiorari do issue to bring to this Honourable Court for the Purposes of being quashed, the 1 st Respondent’s gazette notice number 15570 dated 26 th November, 2010 purporting to revoke the Petitioner’s titles to all those parcels of land comprised in L. R. No. MN/III/2947 and L.R. No. MN/III/2948.
b) An order of Prohibition do issue to prohibit the Respondents by themselves, their servants, agents or whomsoever from alienating the Petitioner’s parcel of land comprised in L. R. No. MN/III/2947 and L. R. No. MN/III/2948 or in any manner interfering with the Petitioner's possession of the said properties.
c) An order of prohibition do issue to prohibit the Respondents by themselves, their servants, agents or whomsoever from in any manner issuing any title and/or license in respect to the Petitioner’s land comprised in L.R. No. MN/III/2947 and L.R. No. MN/III/2948 or registering any encumbrance thereon.
d) An order of Mandamus do issue to compel the Respondents by themselves, their servants, agents to delete any entry on the Petitioner's titles made as a consequence to or in furtherance of the revocation of the Petitioner’s title to all that parcel of land comprised in L.R. No. MN/III/2947 and L.R. No. MN/III/2948.
e) An order of Mandamus do issue to compel the Respondents by themselves, their servants, agents to publish in the Kenya Gazette within thirty (30) days from the making of the order hereof, a legal notice cancelling the revocation of the Petitioner's title to all that parcel of land comprised in L.R. No. MN/III/2947 and L.R. No. MN/III/2948.
f) A declaration that the Respondents’ purported revocation of the Petitioner’s title to L.R. No. MN/III/2947 and L.R. No. MN/III/2948 is unconstitutional, null and void.
g) A declaration that the Grants issued to the Petitioner in respect to L. R. No.MN/III/2947 and L.R. No. MN/III/2948 is conclusive evidence of ownership and that the Petitioner is the absolute and indefeasible owner of the suit property.
h) Damages.
i) Costs of and incidental to this/suit.
27. The Plaintiffs called PW - 1 on 3 rd October, 2022 at 2.30 pm who testified as follows:-
A. Examination in Chief of PW - 1 by Mr. Omwenga Advocate.
28. PW - 1 was sworn and testified in English language. He was called PATRICK IGADWA INZIRA, a citizen of Kenya and holder of the national identity card with all the particulars shown to Court during the hearing of the case. He testified that he worked with the Plaintiff’s Company. PW ‑ 1 filed a witness statement on 20 th January, 2021 and also filed a Supplementary Witness Statement on 3 rd October, 2022. PW ‑ 1 filed a List of Documents dated 21 st December, 2021 together with a Supplementary List of Documents comprising eleven (11) items. They were produced as Plaintiff Exhibit numbers 1 to 11 from the first List of Documents dated 20 th January, 2022, namely:-
a) A copy of Clearance Certificate for Plot No. 2947/3/MN.
b) Consent Letter from the Commissioner of Lands dated 22nd June 2010.
c) Transfer for Plot No. 2947/3/MN dated 5 th July, 2010.
d) Receipt for payment of duty (page 10).
e) A copy of Title deed.
f) A copy Clearance Certificate for Plot No. 2947/3/MN.
g) Consent Letter from the Commissioner of Lands dated 22 nd June 2010.
h) Transfer for Plot No. 2946/3/MN (dated).
i) Receipts of payment.
j) Title deed.
k) Copy of the Kenya Gazette revoking Title No. 14564.
29. The Court admitted the above documents and produced them as Plaintiff’s Exhibit No. 1 to 11. From the Supplementary List of Documents, the Plaintiff further produced Exhibits 12 to 17, save for Item No. 7 of the Supplementary List, as Counsel were not aware of the said suit and the principles of sub judice under the provision of Section 6 of the Civil Procedure Act, Cap. 21 applied. In the year 2010, the Plaintiff had purchased the two suit properties from Shirant Investment Limited and Hanover Holdings Limited under duly executed sale agreements. The purchase price had been sum of Kenya Shillings Thirty Million (Kshs. 30,000,000/-) for both parcels.
30. PW - 1 confirmed that due diligence had been undertaken, and thereafter the properties had been duly transferred to the Plaintiff. In 2011, PW - 1 came to learn that the Kenya Agricultural Research Institute (KARI) was claiming ownership of the properties. Prior to the purchase, PW - 1 had never seen any document evidencing KARI’s ownership. PW - 1 later saw a Letter of Allotment issued to KARI dated 16 th January, 2012, which had come after the Plaintiff had already acquired the land. Therefore, PW - 1 sought the orders as prayed in the Plaint.
B. Cross Examination of PW - 1 by Mr. Oluoch Advocate.
31. PW - 1 had been employed in March, 2009 and was based at the Nairobi Presidential Building. The Plaintiff’s Company was a real estate entity that purchased land, developed properties, and either leased them out or sold them. PW - 1 dealt with only two Directors. He did not know their names unless he referred to them, as he was an employee. PW ‑ 1 did not know the Managing Director. His role was to manage the property and recommend the nature of the property. He drew a salary of a sum of Kenya Shillings Sixty (Kshs. 60,000/-) per month. PW - 1 had authority to testify, although he did not have the written authority with him in court.
32. The two properties had been bought in the year 2010. They were located near Mtwapa. When PW ‑ 1 visited the properties, there were some small fabricated units for workers. PW ‑ 1 did not know who had built the structures and did not know the persons living in them, as they kept on changing.
33. PW - 1 referred to the Defendant’s Bundle of Documents. The vendors of the properties had been private companies. In Baharini Development Limited’s bundle, on page 60, there was a Letter of Allotment for Pineapples Edge Ltd. in respect of LR No. MN/III/2948 Mtwapa dated 9 th May, 1995. On page 55, there was a Letter of Allotment for Kisibet Investment Ltd. in respect of LR No. MN/III/2947 Mtwapa dated 9 th May, 1995.
34. PW - 1 knew that the two parcels had been offered for sale by Shirland Investment Limited and Hanover Holdings Limited at the same time. He referred to the Affidavit of Patel at page 6(b), which contained a letter dated 15 th May, 1992 from the 1 st Defendant and noted that in 1995 the Commissioner of Lands had allocated the land. PW - 1 referred to the Letter of Allotment on page 60. On page 33, there was a letter dated 15 th May, 1992 by the Commissioner of Lands transferring land from KARI to KMFRI (Mtwapa, Mombasa). To the knowledge of PW - 1, his employer had never undertaken any development on the land.
35. PW - 1 referred to page 73, which contained Case No. 77 of 2008 filed by “ KACC - Versus - Nathaniel Tum and others” . PW ‑ 1 was not directly involved in the purchase of the property but had prior information that the company was buying the property. His instructions were derived from what the Directors had informed him. On paragraph 10 of the Supplementary Affidavit, PW - 1 stated that the information had been relayed to him, and that the statement had been sworn by the previous witness. PW - 1 was told that they had been given the title deed. Hanover Holdings Limited knew about the history of the land.
C. Cross Examination of PW - 1 by Ms. Langat Advocate.
36. PW - 1 had worked for the company from the year 2009. PW - 1 did not know his bosses. As the Property Manager, his role had been to deal with the payment of employees and not the management of the properties. PW - 1 did not know whether the company had paid the rates or not.
37. The structures on the land were permanent. PW ‑ 1 had never conducted any history of the property before coming to court, as he had a patient at the time. By the year 2008, PW - 1 had not yet joined the company that sold them the properties. He therefore would not have known whether there had been any inhibition or restriction order of the year 2018 on the property. PW - 1 confirmed that he knew the property was a beach plot.
D. Re - Examination of PW - 1 by Mr. Omwenga Advocate.
38. PW ‑ 1 reported to the team and not directly to the Directors. The Letters of Allotment had been issued in the year 1995. From paragraph 10 of PW ‑ 1’s Supplementary Witness Statement, the Plaintiff had bought the property in the year 2010. Before then, the parcels had been owned by Shirland Investment Limited and Hanover Holdings Limited. There had been no court order arising from Case No. 77 of 2008.
E. Examination for clarity of PW - 1 by the Court.
39. PW ‑ 1 stated that there was no information regarding where Shirland Investment Limited and Hanover Holdings Limited had obtained the land from. PW ‑ 1 further indicated that he did not know whether Mr. Nathaniel Tum had been one of the Directors of Baharini Development Limited.
40. On 3 rd October, 2022, the Learned Counsel for the Plaintiff Mr. Omwenga on behalf of the Plaintiff marked the closure of its case.
V. The case of the 1 st Defendant.
41. The 1 st Defendant opposed the claim through an Amended Statement of Defence and Counter - Claim dated 14 th June, 2012 wherein the 1 st Defendant stated that except what was expressly admitted therein, the Defendant denied each and every allegation contained in the Plaint as if the same were set out verbatim and traversed seriatim. The 1 st Defendant admitted the descriptive parts of Paragraph 2 of the Plaint save that its address for the purposes of the suit.
42. The 1 st Defendant denied the contents of Paragraph 4 of the Plaint as stated and averred that the suit property had been unlawfully and without following procedure excised out of the Defendant’s land without the Defendant’s consent and the purported purchase of the land. The 1 st Defendant was a stranger to the contents of paragraph 5. The 1 st Defendant denied the contents of paragraph 6 of the Plaint as stated and averred that the Registrar of Titles had revoked the titles issued to the Plaintiff and gazetted the land as the Defendant’s property.
43. The 1 st Defendant was a stranger to the contents of Paragraph 7 of the Plaint as stated and stated that the Defendant intended to carry out agricultural and marine research for public good on the said land. The 1 st Defendant averred that the suit property was part of a larger parcel of land which had been unlawfully and without the Defendant’s knowledge and/or consent, and by use of force and intimidation of government employees, taken by private individuals, and that the Defendant had made a report to the Commission of Inquiry on the Illegal Allocation of Public Land, commonly known as the Ndung’u Commission.
44. The 1 st Defendant further averred that the matter had been reported to and investigated by the Kenya Anti ‑ Corruption Commission, the culmination of the said investigation being the revocation of the Plaintiff’s titles among others issued on public land in November, 2010. The 1 st Defendant, acting on the notice gazetted by the Registrar of Titles and on the advice of the Kenya Anti ‑ Corruption Commission, started the survey process for purposes of acquiring title. The 1 st Defendant further averred that the revocation of title by the Registrar of Titles rendered the Plaintiff’s alleged title null and void. The 1 st Defendant denied the contents of Paragraph 11 of the Plaint as stated and averred that it could not have trespassed on its own property.
45. The 1 st Defendant denied the contents of Paragraph 12 of the Plaint and put the Plaintiff to strict proof thereof. The 1 st Defendant denied the contents of Paragraph 13 of the Plaint and put the Plaintiff to strict proof thereof. The 1 st Defendant was a stranger to the contents of paragraph 14. The jurisdiction of this Honourable Court was admitted.
46. For the reasons whereof, the 1 st Defendant prayed that the Plaintiff’s claim against it be dismissed with costs.
47. The 1 st Defendant stated as follows in the Counter claim:-
a. At all times material to this suit, all that parcel of land known as Land Ref. No. “PLOT NO. W/III/1450 (original)” measuring approximately 13.40 hectares was the property of the Defendant, a public institution which had been in continuous occupation of the said parcel of land either by itself or its predecessors in title since the year 1923 or thereabouts.
b. The Commissioner of Lands purported to sub - divide and allocate and issued grants on the said parcel of Land Reference No. PLOT NO MW/III/1450 (original) into 5 plots namely Land Reference Nos. MN/III/2944 MN/III/2945, MN/III/2946, MN/III/2947, and MN/III/2948 without the knowledge, consent, approval and or acquiesce of the Defendant herein which had possession thereof and was in occupation.
c. The making of the said Grants was illegal, ineffectual, erroneous, and ultra-vires the statutory power of the Commissioner of Lands as Land Reference No. PLOT NO MW/III/1450 (original) was at the material time in possession, occupation and use of the defendant having at all times been and remained reserved to for public research purposes and accordingly was not unalienated piece of land.
d. The 1 st Defendant relied on the following particulars of illegality and/ or breach of statutory provisions:-
i) The Plaintiff with full knowledge that Land Reference No. PLOT NO MW/III/1450 (original) was set aside and or reserved for use by the Defendant herein under the Government Lands Act applied for and purported to accept a grant issued under the Registration of Titles Act in respect of Land Reference No. MN/III/2947 and MN/III/2948, portions excised or purportedly excised from the said land;
ii) The Plaintiff accepted a grant made under the Registration of Titles Act in respect of Land Reference No. MN/III/2947 and MN/III/2948 while fully aware that the allocating authority had no power to deal with the land;
iii) The Defendant had never relinquished its interest in Land Reference No. PLOT NO MW/III/1450 (original) nor had the Defendant’s Board of Management made any resolution to surrender, sell, convey, subdivide or otherwise alienate the said land;
iv) Land Reference No Plaintiff had never been brought under the Registration of Titles Act;
v) The Plaintiff purported to deal with the suit land without any or any authority whatsoever;
vi) The Plaintiff shut its eye to the fact that the land was alienated public land set aside and or reserved for agricultural research a activities for the public good as there exists on the two parcels of land the subject of this suit two (2) three bedroomed and two (2) two bedroomed permanent houses belonging to the Defendant which the Plaintiff took possession of and had denied the Defendant access thereto and use thereof;
vii) Plaintiff knowingly facilitated irregular/illegal transfer of alienated Public Land;
viii) The Certificate of Title issued in favour of the
[...truncated]