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Family loses battle for ownership of city plot

NAIROBI
By Paul Ogemba | October 12th 2021

The dispute surrounding the land’s ownership dates back to 1968. [Courtesy]

Three siblings have lost a multi-million shillings battle with a private developer over ownership of a prime property in Ngara Estate, Nairobi.

Court of Appeal Judges Asike Makhandia, Pauline Nyamweya and Jessie Lesiit ruled that the brothers, Harcharan Singh Harbhajan Singh and Jaswanan Singh, have no claim to the apartment block valued at more than Sh120 million and handed back ownership to Tarabana Company Limited.

“We find that the company was an innocent and genuine purchaser of the land which it used to construct the apartment block. It was wrong for the Environment and Land Court to disposes the developer of the land and the property based on wrong analysis of the facts,” ruled the judges.

The decision was sweet victory for the private developer who had lost ownership of the property to the brothers in 2019.

Dispute surrounding the land’s ownership dates back to 1968 when the Singh brothers acquired it for a 59-years lease from the government which expired in 2001.

Upon the expiry of the lease, they wrote to the commissioner of lands requesting for an extension but their file went missing from the registry before the lease could be renewed.

In 2014, they discovered that the land had been leased to Rospatech Limited which later sold it to Tarabana Company Ltd at a cost of Sh24 million.

The company then went ahead to demolish the Singh brothers’ old building that was on the land and put up the Tarabana Plaza at a cost of Sh60 million as a mixed use apartment block with 30 tenants.

The siblings then went to court and in July 2019, Environment and Land Court Judge Kossy Bor ruled in their favour and ordered the private developer to surrender to them the land and the entire apartment block.

Justice Bor had ruled that the siblings had a legitimate claim to the land having occupied it since 1968 and ordered the land’s registrar to register them as the genuine owners of the land.

But the Appellate Court overturned that decision, ruling that it was the brothers to blame for not moving in haste to renew their expired lease in 2001 which made the government to repossess the land and issue a title to another party.

“The property belonged to the government which had a right to either renew or decline to renew the lease. The government apparently proceeded to allocate the property to another party. We therefore find that the developer was a bona fide innocent purchaser and its title could not and cannot be challenged,” ruled the judges.

According to the Appellate Judges, the brothers did not even provide evidence that they applied for extension of their lease in 2001.

The judges ruled that a certificate of title issued by the land’s registrar to a purchaser of land upon a transfer is evidence that the person named as proprietor of the land is the absolute and indefeasible owner unless it is proved the title was obtained through fraud or corrupt deal.

The Judges ruled that it was wrong for the ELC Judge to disposes the company the apartment block it had invested so many millions to build and confer ownership to the three siblings who did not contribute anything and wanted to reap where they did not sow.

“What the brothers lost was not the property as the same belonged to the government which took the land back upon expiry of their lease. What they lost was the structures on the land at the time their lease expired,” ruled the judges.

They overturned the lower court’s order that stopped the company from occupying and collecting rent from the apartment block and directing that the company takes full ownership of the disputed property.

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