I am pleased to inform you that plot no. Nairobi Block 90 307 at Loresho area measuring 2.575
hectares is hereby reserved to your department for construction of the police station. The plot is
surveyed and given the above number. Greatest care should be exercised to ensure all the
buildings or other works are containing within the boundaries. The plot is shown edged in red on
the attached plan.
W.Gachanja
COMMISSIONER OF LANDS.
The said letter was copied to among others; The Director of surveys, the Town clerk, Nairobi and
the Director of Physical Planning Department. It is ironic that the Commissioner of Lands did
cancel the said number on 16/12/93 by a registry index map no.148/2 of even date. There is no
dispute also that the plot reserved for a water reservoir was originally known as Nairobi Block
90/229. So it must also have been surveyed and designated for that particular purpose.
Under the Government Lands Act. Cap 280 laws of Kenya the Commissioner of Lands can only
make grants or depositions of any estates, interests or rights in over unalienated Government land
see Sec. 3. In the instant case parcels among others had been alienated and designated for
particular purposes. It is not open for the Commissioner of Lands to realienate the same. So the
alienation was void ab-initio. I have noted the submission on misjoinder of parties. However my
view is that in this particular case it is not necessary to join the Commissioner of Lands as a basis
of making such an order. In any case it was also open to the defendants to join any party of these
proceedings.
It has been submitted that the second defendant is a purchaser for value without notice and as
such he is a daring of equity. I know the law provides that he was not bound to investigate the
titles before he purchased the plots. However over the last few years and the resent past dealings
in land have become more and more precarious. More than ever before it is incumbent upon any
party dealing in land to ascertain its legal status before committing himself. If the second
defendant did not take such precautions before parting with substantial sums of money the loss
may lie where it has fallen. In the circumstances of this case the face of equity will frown at the
transaction.
Having said as much I find that the plaintiffs have presented a prima facie case with a probability
of success. Damages may not be adequate compensation in view of both personal and community
interests at stake in this matter.
I am not in any doubt about my finding herein above and even if I was I would still find that the
balance of convenience tilts in favor of the plaintiffs. If the developments proposed by the
defendants were to be carried out. The purpose for which the land was reserved will be defeated.
The subject matter has to be preserved. In the end the plaintiffs’ injunction hereby proceeds with
costs.
Orders accordingly.
Dated and delivered at Nairobi this 18th day of April, 1997.
Signed
A. MBOGHOLI MSAGHA
JUDGE.