The Environment and Land Court has ordered the Department of Defence to vacate a land parcel opposite Ulinzi House on Nairobi's Lenana Road after finding its occupation of the property was unlawful.

In the judgment that ends a 13-year legal battle, the court upheld private developer Acres and Homes Limited's ownership of the land, ruling that the State had failed to prove the plot was a public road reserve.

The court ruled that Acres and Homes Limited had proved it lawfully owned the land, while the government failed to substantiate claims that the property was a public road reserve illegally allocated to private companies.

The court declared that "the Department of Defence's entry into and continued occupation" of the property "is unlawful" and ordered it to vacate and hand over vacant possession to the company.

The Milimani Law Courts in Nairobi.

Photo credit: File | Nation Media Group

The legal dispute dates back to 2013, when Acres and Homes sued the Attorney-General, saying the Defence department had taken over the property.

Esther Njeri, a director of the company, told court that the company purchased the land parcel for Sh140 million in May 2012 from Impulse Developers Limited after a series of earlier transfers originating from Orbit Express Limited, the first registered owner in 2000.

She testified the property stood opposite Ulinzi Gate and had been valued at about Sh250 million. She also said it planned to build residential rental houses after obtaining approval from the then City Council of Nairobi. It intended to generate ental income of Sh250,000 per month.

According to the company, Defence officials fenced the land, erected a gate, installed a parking sign and converted it into a parking area for visitors to Ulinzi House, preventing any development.

The developer sought vacant possession, general damages for trespass and compensation of Sh250,000 monthly for the income it said it lost while the Defence department occupied the land from May 31, 2012 until the property was returned.

To support its case it produced a valuation report, a development approval issued by the City Council of Nairobi on June 27, 2013, correspondence exchanged with the Ministry of Lands, demand letters addressed to the Department of Defence, the statutory notice, and photographs depicting the alleged occupation of the property by the Department of Defence.

Ms Njeri stated that despite demand letters and the statutory notice the alleged trespass persisted, causing the company to suffer loss of use of the property, missed income and general damages.

Fraudulent process

The Attorney-General, representing the Defence department, denied the claim and filed a counterclaim seeking cancellation of the company's title deed.

The government argued the parcel had always been a public road reserve and was never available for private allocation. It said the original allocation, subsequent transfers and the eventual registration in the company's name were fraudulent, illegal and irregular.

It further argued that the Ministry of Lands had previously registered a caveat over the property because of its proximity to Defence headquarters and maintained no valid title could pass from an unlawful allocation.

The State also contended that the Ministry of Defence had consistently opposed development on the land because of national security concerns and therefore could not be treated as a trespasser.

After reviewing the evidence, however, the court found the government had not produced sufficient material to support those allegations.

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"While the defendant maintains that the suit property was unlawfully excised from a road reserve, the material relied upon does not satisfactorily demonstrate that L.R. No. 209/14030 was reserved for public use," the court said.

It added that the evidence also failed to show that the ownership document issued to the company was procured through fraud or illegality.

The court said the developer had instead produced a traceable chain of title supported by the grant, transfer records, valuation documents, development approvals, official correspondence, statutory notices and photographs showing the military's occupation.

"Conversely, the material relied upon by the defendant falls short of establishing that the suit property was a public road reserve or that the Plaintiff's title was acquired through fraud, illegality or any of the grounds contemplated under Section 26(1) of the Land Registration Act. The Plaintiff's title therefore remains valid and entitled to the protection of the law," the court said.

Having upheld the title, the court found the Defence department had no lawful interest justifying its continued occupation.

"In the absence of any lawful interest established by the defendant to justify that occupation, I find that the defendant's continued occupation of the suit property constituted trespass," he said.

The court dismissed the government's counterclaim in its entirety.

However, the court declined the company's compensation claim for the missed income.

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jwangui@ke.nationmedia.com