THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT No. 423 OF 1996NIAZ MOHAMED JAN MOHAMED==================== PLAINTIFF
VERSUS- COMMISSIONER OF LANDS
- MUNICIPAL COUNCIL OF MOMBASA
- NANDLAL JIVRAJ SHAH
- VI MAL NANDLAL SHAH T I A JIVACO AGENCIES)
- MEHUL N. SHAH =================================DEFENDANTS
RULING
NIAZ MOHAMED JAN MOHAMED (hereinafter referred to as NIAZ) has at all times
material to this suit been the Registered Proprietor of all that freehold property measuring
approximately 3.63 Acres known as Plot No. 32 Section I Mainland North in Kisauni/Nyali area
within Mombasa Municipality.
During the construction of the New Nyali Bridge in 1979, it became necessary to construct a new
access road to Kisauni and Nyali Estate. When that road was surveyed it traversed Plot No. 32 as
it must have, other plots, and therefore the Land Acquisition Act had to be invoked to acquire the
areas traversed by that road. As respects Plot No. 32, it was considered that the road would cover
an area of approximately 0.37 of an Acre and therefore machinery was put in place to acquire that
portion.
The Acquisition was carried out through the Commissioner of Lands who published Kenya
Gazette Notices on 18.5. 1979. On 13.12.1979, he registered against the Title a "Notice of taking
possession and vesting of land in the Government" under Section 19(1) of the Land Acquisition
Act and asked Niaz to surrender the documents of Title to the Registrar of Titles Mombasa for
rectification. The Notice was copied to amongst others The Municipal Council of Mombasa. The
Director of Surveys, the Chief Engineer (Roads) Ministry of Works with a caption that
"Construction of road will start with immediate effect".And so it did and was completed in due course and handed over by the contractors. It was then
opened for use by the public.
Niaz thereafter enjoyed a road frontage and direct access to that road until November 1995 when
it is alleged the Commissioner of Lands, with the connivance, consent or knowledge of the
Municipal Council of Mombasa created a new leasehold Title from a small portion which
remained uncovered by the tarmac road, measuring approximately 0.14 Acres and allocated this
to NANDLAL JIVRA SHAH, VIMAL NANDLAL SHAH and MEHUL SHAH all Trading
as JIVACO AGENCIES (hereinafter referred to as JIVACO ). The Title issued was given LR