The acreage may add up while the land included is wrong. In Flemish Investments, a seller had purchased eight acres and two additional acres behind them. The registered holding instead incorporated a different two-acre plot in front, where a public cattle dip stood. The Court of Appeal examined whether that public-use land could lawfully form part of the buyer's title.
Case identity
- Case: Flemish Investments Limited v Town Council of Mariakani
- Citation: [2016] KECA 68 (KLR), also reported as [2016] eKLR
- Court: Court of Appeal at Mombasa
- Decision date: 25 November 2016
- Proceeding: Civil Appeal 30 of 2015; appeal from Environment and Land Court Case 459 of 2010
- Primary source: Kenya Law decision
The public plot inside the claimed boundary
Plot 34 had been set apart for a public cattle dip in 1978. Years later, Victor Ndambuki purchased interests in adjoining land from members of the family associated with the larger holding.
The court's account distinguished the additional two acres sold to him at the back from the public plot at the front, beside the road. It found that the latter had been included in his registered property instead. Flemish subsequently purchased the holding.
When Flemish tried to build a perimeter wall, the council objected because the proposed enclosure included the cattle-dip plot. The company sued for a declaration allowing construction, an injunction against interference and monthly special damages for alternative vehicle-parking arrangements.
The council counterclaimed for recognition that Plot 34 was outside the private holding, correction of the deed plan and protection against interference. Ndambuki did not defend the proceedings, and default judgment had been entered against him. See the opening factual and procedural account.
The buyer relied on registration
Flemish argued that its certificate under the Registration of Titles Act was conclusive and could not be challenged without proof that it participated in fraud. It also contended that the council's remedy, if any, should be damages rather than interference with title.
The council responded that it was not seeking cancellation of the entire title. It wanted the public plot removed from the private holding. It pointed to the visible cattle dip and Flemish's efforts to have it relocated as evidence that the company knew a public utility was involved.
The distinction between the whole holding and the disputed part is central. This was not an order stripping the company of every acre it owned.
Notice was important but did not itself prove fraud
The appellate court considered Flemish's claim to innocent-purchaser status unpersuasive. A public cattle dip within a proposed commercial enclosure called for inquiry, particularly when the buyer was asking the council to relocate it.
Nevertheless, the judges expressly said those circumstances alone did not prove that Flemish participated in Ndambuki's fraud. Fraud required stricter proof than an ordinary balance of probabilities.
The decision instead rested on a more fundamental point. Setting this former trust-land plot apart for public purposes had extinguished the family's customary rights under section 117(2) of the former Constitution. Neither the original sellers nor Ndambuki had an interest in that plot capable of being sold onward. Registration could not override that constitutional result. This does not mean any assertion of public use cancels a private title. See the analysis beginning However that in itself does not suffice.
The orders that survived appeal
The trial court dismissed Flemish's suit with costs and allowed the council's counterclaim. It ordered Plot 34 excised from the private property and registered in the name of Kilifi County Government to be held in trust for the public.
The Court of Appeal dismissed the appeal in its entirety with costs to the council. It therefore left that targeted correction intact. The judgment did not grant the company's claimed monthly damages or cancel its whole title. See the trial-order account beginning Mukunya J. was persuaded and the final appellate paragraph.
Questions about what a title actually includes
- Does the deed plan cover the same ground the seller lawfully acquired?
- Are public facilities or reservations included within the claimed boundary?
- What explains any substitution of one area for another?
- Do earlier setting-apart records limit what could be transferred?
Official searches, advocate review, survey reconciliation and field follow-up answer different questions. Use the parcel identifier and request dated evidence, sources, confidence and unresolved extent questions. ArdhiScore concerns accessible recorded indicators, not a surveyed boundary determination or proof that every public reservation has been found. Explore ArdhiScore screening and its limits.
This is educational, not legal advice. A limited later-history search located no subsequent altering decision, not proof that no later proceedings exist. The historical orders do not establish today's register or physical site conditions.