The Commissioner of Lands does not have the power to convert a public road into a private plot of land

Brief facts

The plaintiff contended that the suit property was illegally carved out of Tom Mboya Road (Tudor Road), a public road located in Mombasa Island. It was the plaintiffs case that the former Commissioner of Lands (the 5^th defendant) illegally alienated the suit property and issued an allotment letter to the 1^st defendant and subsequently a lease dated August 29, 1997 was issued to the 2^nd defendant. That lease was registered on September 18,1997 and it was for a term of 99 years. The lease was later transferred to the 3^rd defendant. Another transfer was effected to the 4^th defendant. At the time of filing suit, it was the 4^th defendant holding a leasehold title to the suit property.

The plaintiff contended that all the four companies (1^st-4^th defendants) were related and shared directors and ownership, and that the transfers were effected so as to pretend that there was an innocent purchaser for value without notice and to defeat the course of justice. The plaintiff pleaded that the creation of the plot was done fraudulently, inter alia because the 5^th defendant had knowledge that the suit property was a road reserve. It is pleaded that the requisite council resolutions were not given. The 5^th defendant was pleaded to be guilty of misfeasance in public office and in breach of his fiduciary duties It was contended that the 1^st to 4^th defendants participated in the fraudulent scheme to alienate the land.

The plaintiff sought for among others; a declaration that the lease registered in favour of the 2^nd defendant over the suit property was issued ultra vires the 5^th defendants statutory powers and was thus illegal; and an order directed to the Land Registrar, Mombasa District Registry, to rectify the register by cancellation of the entries relating to the transfers made.

The 1^st, 3^rd and 4^th defendants pleaded that they were innocent purchasers for value and that the Government and the plaintiff were estopped from disputing the title of the 3^rd and 4^th defendants. They denied that the property was alienated fraudulently and added that the title of the 4^th defendant was not liable to be defeated under the repealed Registered Land Act (RLA). They prayed for the suit to be dismissed with costs. The 5^th defendant denied that the suit property was an unclassified road vested in the Municipal Council of Mombasa (Council) for a public purpose. He further claimed that the issuance of the lease was lawfully done within the provisions of the repealed Government Land Act (GLA) and all particulars of fraud were denied. He pleaded that he acted intra vires his powers under the GLA.

Issues

1. Whether the Commissioner of Lands had power to allocate a plot carved out of a road. 
2. Whether municipal councils had the authority to create plots out of roads, allocate them to the public and have the Commissioner of Lands issue title to them. 
3. Whether once land had been set aside for public purpose, it could not be alienated further. 
4. What was the nature of the power of municipal councils to close down roads? 

Held

1. The suit property was initially part of the road reserve of Tom Mboya Road. The surveyor who did the survey that created the suit land and three other plots, who testified as PW-3, himself stated he created the suit property from the Tom Mboya Road reserve. The surveyor who created the plots knew from which land the plots were being created from. He had said that it was from the road reserve and the court did not have a reason to doubt it. That position was supported by PW-2, the physical planning officer, and PW-4, the engineering surveyor. They were all experts in that field, and their expert opinion had the consensus that the plot was from a road reserve.
2. Apart from the oral evidence, there was also documentary evidence through the registry index map (RIM), the survey plan of the surveyor and the part development plan (PDP) used to create the plot. A RIM had an amendment section which showed the dates of amendment of the map. A careful study of the RIM in issue showed amendments done on June 17, 1996, that created Plots No. 934 937. If a person  wanted to know what was there before, s/he simply ignored that amendment, and if s/he ignored it, s/he would see the plots being part of the road reserve. It was also there in the survey plan and in the impugned PDP. All that showed how the plots were created. They were not being created from any pre-existing plot, but from the reserve abutting the main Tom Mboya Road.
3. The defendants had not brought any evidence to show that the subject plot was not created from the road reserve. Nothing stopped the defendants from bringing an expert of their own to controvert the expert evidence of PW-2, 3 and 4, and demonstrate that the suit property was not created from a road reserve or that Tom Mboya Road did not have a reserved width of 30.48 meters. The suit property was created from the Tom Mboya Road reserve. Whichever process was followed, the creation and allotment of the plot was illegal.
4. If the allocation was by the Municipal Council of Mombasa, then it was improper. The court had not been shown any law which allowed the municipal councils to create plots out of roads, allocate them to the public, and have the Commissioner of Lands issue title to them. The fact that allocation of plots was through confidential minutes was very telling in itself. It simply meant that the persons who sat in that meeting knew that what they were doing was scandalous, embarrassing and uncouth, and they would not have wished for the public to be aware of what they discussed in such meeting. If allocation of plots was lawful, open and transparent, there would be nothing to hide, and no reason to have confidential minutes. From the confidential minutes, there was intention to secretly allot plots to some carefully chosen connected individuals.
5. Roads had been under the Public Roads and Roads of Access Act, Cap 399, Laws of Kenya. That law provided at section 8 for conversion or alteration of public roads. Alteration of public roads was to be done by the Minister through a gazette notice. There was no gazette notice from the then Minister in charge of Roads. The Municipal Council of Mombasa could not usurp the powers of the Minister and purport to affect a public road and create plots out of it. Municipal councils had power to close roads, under section 185 of the repealed Local Government Act , but closure of a road and allocation of land out of a road were not the same thing. The power to close roads was simply that, to close a road.
6. The power to close a road never entailed creation of a plot. Within the exercise of that power, the local authority needed to publish that intention to close a road in the Kenya Gazette and in one or more newspapers (section185(2)(b) of the repealed Local Government Act ) and also serve the Minister in charge of town planning (section 185(2)(e) of the repealed Local Government Act ). There was no evidence of publication in the newspapers, or notice to the Minister of Town Planning.
7. A close look at Gazette Notice No. 1099, that which was said to have closed the Tom Mboya Road so as to create plots out of it, doesnt tell under what law it was placed. You could not tell from that gazette notice what law was being followed. If that was the route taken to create and allocate the subject plot, then the plot was improperly created and allocated and the title that emanated therefrom could not be alleged to be a good title capable of being protected.
8. The Tom Mboya Road was in use by the public. The Commissioner for Lands could not simply, by a stroke of his pen, declare that a public road was no more and that in place thereof was a private plot. The Commissioner of Lands had no power to do so. The allocation was not done by the President. There was no allotment letter and no lease signed by the President. The lease issued to the 2^nd defendant claimed that it was issued by the President, but that allegation was untrue, for it was there to see that execution was by the Commissioner of Lands. He had no power to allocate such a plot carved out of a road.
9. Whether the subject title emanated from the procedure outlined by the plaintiff or the procedure claimed by the 1^st, 3^rd and 4^th defendants, either way, the title was not created nor allotted following the proper legal channels. That was a bad title shamelessly created out of a public road.
10. Once land had been set aside for public purpose, it could not be alienated further. In any event, the positioning of the plot, vis--vis the existing road, should have put any diligent person into inquiry, as to how the plot was created and whether it was actually properly carved out of the road reserve.
11. The suit property was carved out of a road. A road was one that was set aside for public use. It could not be inferred that it was the intention of the law that the Commissioner of Lands or the Municipal Council of Mombasa, who were entrusted by the public to hold that land on their behalf, could proceed and deal with it as they wished. They could not proceed to create plots out of it to the detriment of the public.
12. There was no evidence that Tom Mboya Road was obsolete and no longer in use. In fact, it was a matter of public notoriety, and the court took judicial notice, that it was a very busy road. It was a very important road for the benefit of the public. The public could not be deprived of land set aside for their benefit by the whims of the Commissioner of Lands working in cahoots with some gluttonous recipients. The Commissioner of Lands abused his powers to create the suit property out of a road reserve that was being used by the public. He had no power to create such a title and the title.
13. Courts would frown upon titles purportedly created out of road reserves. In the instant case, the title was issued under the regime of the repealed RLA and even the instant suit was filed before the RLA was repealed. The RLA therefore applied to the instant situation. Sanctity of title was addressed in section 143 of the RLA. From section 143(1), the court had power to order the cancellation of title where it had been obtained by fraud or mistake. In the circumstances of the instant case, the Commissioner of Lands and the 1^st, 2^nd, 3^rd and 4^th defendants, were all complicit to the fraudulent creation of title and allocation of the suit property.
14. The 1^st, 2^nd, 3^rd and 4^th defendants were not innocent parties at all. They had not offered any explanation as to how an allotment letter was issued to the 1^st defendant, or how a lease suddenly fell into the laps of the 2^nd defendant. In their evidence, the 3^rd and 4^th defendants did not demonstrate that they were innocent purchasers. In fact, they came across as parties who had a lot to hide. They were all parties to the fraudulent acquisition of a road reserve. Even assuming that they were not guilty of any fraud, then at the very least, the creation of the suit property out of a public road reserve, was a mistake, and under section 143 of the RLA, title could be nullified if it was created by mistake.
15. The person who held the office of Commissioner of Lands could be sued in his personal capacity. The plaintiff did not seek any specific orders against the 5^th defendant, and save for costs, there was really no order that the court needed to make against the 5^th defendant.
16. There was insinuation that the Government would have protected the title, that could not be. There was evidence that the Government itself was appalled by the creation of that plot and proceeded to nullify it through Gazette Notice No. 11533 of October 1, 2010. It was only that the Gazette Notice was quashed as the procedure on revocation of titles was not followed. It could not therefore be said that the Government would have protected that title. There was no issue with the non-joinder of the Government in the instant case.