Mr Harcharan Singh Sehmi and others were the rightful owners of the contested property as they applied for the extension of the lease three months before it expired in 2001, the apex court presided by Justice Mohamed Ibrahim has ruled.
The Sehmi brothers, who had been residing on the plot since 1968, were evicted from the parcel in October 2014 and their property demolished.
The land was later acquired by Rospatech ltd, who later sold it to Tarabana Company ltd for Sh24 million and the latter erected an eight-storey commercial building.
The Supreme Court building in Nairobi.
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The Supreme Court ruled that Mr Sehmi had a legitimate expectation that the lease would be extended but their rights were disregarded when the parcel was allotted eight years later to Rospatech Ltd.
“Inexplicably, all these actions ended up in the allotment of the suit land to the second respondent (Rospatech ltd) in total disregard of the appellant’s (Sehmis) application for extension of lease,” said the judges.
Justices Ibrahim, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko added that even more puzzling was the fact that the allotment to Rospatech ltd was made eight years after the application by Sehmi brothers.
“There is nothing on record to show how, and for what purpose the suit land came to be allocated to the second respondent who promptly sold it to the first respondent,” the judges added.
There have been cases where plot owners in Nairobi have lost their possessions as fraudsters in cahoots with officials of the land ministry target plots whose leases are about to expire or have expired.
The judges said Sehmis had a legitimate expectation that their lease would be extended and such an expectation was not only reasonable, but was expressed to a competent authority (Commissioner of Lands), who at different times, had exercised the powers conferred upon him by the law, to extend the leases of other applicants in a similar position.
The judges added where the extension is rejected for whatever reasons, the applicant is entitled to be furnished with reasons.
The family said it acquired the property in 1968 from Elizabeth Ann Maria Estreta Rodrigues for Sh25,000 and were duly registered as tenants, for a term of 59 years, starting October 1, 1942 and was to expire on October 1, 2001.
Three months to the expiry of the lease, the family applied for an extension and they were informed that their request would be approved.
While pursuing the extension of their lease, they enjoyed possession of the property until agents of Rospatech Ltd approached them, claiming that the latter was the rightful owners of the property.
The family reported the matter to the police in March 2011 and as investigations were being conducted, they continued residing on the property until October 2014, when they were forcibly evicted and their house demolished.
Rospatech Ltd denied any unlawful acquisition of the suit property, asserting that Sehmi’s lease had expired in October 2001, and the property reverted to the government.
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The firm said it sold the property to Tarabana Company ltd as it denied any involvement in fraud or collusion, as alleged.
Mr Charles Kiri Thube, the director of Tarabana said he was an innocent purchaser for value in March, 2014 and before doing the purchase, he did a search and found the land was allocated to Rospatech ltd.
A transfer was subsequently registered and he took possession of the premises and obtained the loan.
Mr Thube had argued that after purchasing the plot, he borrowed a loan of Sh61 million from Prime Bank Ltd, using the property as security and used the money to erect a mixed use storied building.
Justice also awarded the brothers Sh25 million as compensation for the loss they suffered when their structures on the property were demolished and their equipment destroyed by the agents of Rospatech ltd, the company that sold the land to Tarabana.
In 2019, Justice Kossy Bor of the Environment and Land court had ordered the eviction of Tarabana from the contested land within three months.
The judge had further directed the new owners to pay Sehmi family Sh26 million as compensation for the demolition of their property.
The Court of Appeal, however, reversed the decision saying when the lease expired, the land reverted to the government and was free for allocation prompting the Sehmi brothers to move to the Supreme Court.
The Supreme Court judges said if the title to a land is obtained through unlawful means, the purchaser cannot claim protection even if he was not aware of the illegality.
The judges noted that the allocation of the land to Rospatech Ltd was made by a person other than the Commissioner of Lands.
They added that the allotment was not preceded by the requisite advertisements and biddings assuming that it was being allotted for a public purpose.
“Consequently, the 2nd respondent could not pass valid title to the 1st respondent given the incurable procedural irregularities that had characterized the allotment,” said the judges.
The court ordered Tarabana to demolish the developments erected by the contested within six months from the date of the judgment under the supervision of the Inspector General of Police.
