Court found that a parcel along Machakos Road serving as an access route to the University of Nairobi's Mombasa Campus was part of a public road reserve before it was alienated. /HANDOUT
The Environment and Land Court has cancelled a 1994 lease over a Mombasa road reserve after finding that the property was illegally converted to private use without following the law.
Justice Y.M. Angima ruled that Mombasa Municipality/Block XIX/305, a parcel along Machakos Road serving as an access route to the University of Nairobi's Mombasa Campus, was part of a public road reserve before it was alienated and turned into a parking lot.
The judge found that the statutory procedure for closing and allocating the road was not followed, rendering the subsequent lease and survey records invalid.
The Ethics and Anti-Corruption Commission had sued the County Government of Mombasa and James Michael Luyali, as administrator of the estate of the late Ezekiel Luyali, alongside other parties, seeking recovery of the property.
EACC had alleged that the road reserve was unlawfully allocated in 1994 to Ezekiel Luyali, then a councillor at the Municipal Council of Mombasa, with the involvement of officials who were serving as Town Clerk and Mayor.
The lease was issued on September 1, 1994 and registered the following day.
The allocation was stated to have taken effect from June 1, 1994.
In his September 24, 2026 judgment, Justice Angima said evidence presented by EACC established that the parcel had been a road reserve before the allocation.
"The court is thus satisfied that the suit property was part of a road reserved at all material times," the judge said.
The court heard evidence from seven EACC witnesses, including an investigator, head of survey records, planner, assistant director of Physical Planning and a former municipal engineer.
The head of survey records told the court that the parcel was part of a road reserve and referred to survey plan F/R No. 95/72.
A planner also testified that the property was a road reserve and that even the disputed Part Development Plan indicated this status.
The judge noted there was little dispute on this point, saying even the Town Clerk at the time conceded that the property was a road reserve, although he denied responsibility for its alienation and attributed responsibility to the Municipal Engineer, whose docket included roads and road reserves.
The court then examined whether the road had been lawfully closed before its allocation.
It found there was no evidence that the required Gazette notices announcing an intention to close the road had been published.
Neither was there a proper record of objections from owners of adjoining properties.
The court also found no valid and approved Part Development Plan preceding the alienation.
"The material on record shows that there was no valid and approved PDP prior to the alienation of the road reserve," Justice Angima said.
The judge said there was further no evidence that the allocation had been approved through a resolution of the municipal council or any of its committees.
The court also found no evidence that the Minister for Local Government had approved the purported 99-year alienation with effect from June 1, 1994.
The judge went further, holding that the allocating authority did not have legal power to allocate part of Machakos Street for commercial and residential purposes under the law applicable at the time.
"The court is thus satisfied that the alienation of the suit property in 1994 was both illegal and fraudulent," Justice Angima said.
The court consequently declared the lease null and void and incapable of conferring any interest in the property.
It ordered the Chief Land Registrar to cancel the lease entries from the register and directed the Director of Survey to cancel and expunge Survey Plan Folio Register F/R No. 264/37, which created the parcel.
Justice Angima also issued a permanent injunction barring the estate of Luyali, its agents or assigns from selling, leasing, transferring, charging or otherwise dealing with the property.
The court, however, declined to order vacant possession because evidence showed the parcel had not been developed and was still being used as a public parking lot.
EACC had also sought general damages for trespass, but the court did not grant the prayer.
However, the commission was awarded costs of the suit against the first and second defendants.
The judgment effectively restores the parcel to public use as a road reserve and prevents further private dealings with the property, which EACC has valued at about Sh25 million.
