The Environment and Land Court has ordered the Chief Land Registrar to revoke a title deed issued to a private developer in Ngong Road Forest.
Judge Oguttu Mboya termed the ownership documents "irregular and unlawful" in a judgment delivered on July 6.
The revocation of illegal title of the multimillion-shilling property has sent shock waves to those still withholding titles.
Half of the forest is in the hands of private developers..
At proclamation, Ngong Road Forest covered 25,725 acres.
In the case, George Mutua sued the Kenya Forest Service, Chief Land Registrar and the Attorney General.
Mutua sought a declaration that he was the legal owner of land known as Land Reference Number 22410, Nairobi.
He said the Kenya Forest Service, about August 2020, illegally, unlawfully and without lawful basis blocked and prevented him from accessing and using the property.
Mutua sought a declaration that the invasion by KFS, its agents, servants, employees and the subsequent evictions and demolition was unlawful.
He also sought a permanent prohibitory injunction tagainst KFS’s interference with his property.
Mutua claimed the property was duly and lawfully allocated to him on the basis of a letter of allotment dated the August 26, 1996 by the commissioner of lands..
He said at the time of the issuance of the Letter of Allotment dated August 26, 1996, the suit property had not been surveyed.
Mutua said the parcel allocated to him was known as unsurveyed residential plot number 6 Karen, Nairobi.
He said he paid Sh117,017 as stand premium, rent, conveyance fees, survey fees, approval fees and stamp duty.
The judge however said the portion of land was not available for allotment or alienation.
He said the purported Letter of Allotment dated August 26, 1996, was a nullity and incapable of conveying any legal rights.
KFS Head of Survey and Mapping Evans Kegode told the court that the area being claimed by Mutua comprises Ngong Forest Reserve.
Kegode said the Reserve was proclaimed vide Proclamation Number 44 0f 1932 and thereafter being declared as a Central Forest vide Legal Notice Number 174 of May 20, 1974.
Kegode told the court that the area comprising of Ngong Forest Reserve was later reduced by legal de-gazettement of approximately 1,600 hectares (3,955.8 acres). He said de-gazettement was undertaken before the requisite declaration.
He told the court that over time several parcel were hived off and/ or carved out of Ngong Forest Reserve, including L.R No. 22410, which is the property being claimed by Mutua.
Kegode said the boundaries of Ngong Forest Reserve have never been lawfully altered and degazetted.
He said prior to de-gazettement of forest land, it was incumbent upon the Environment minister to issue a gazette notice declaring a portion of the forest to be unalienated government land.
Kegode said this did not happen.
Judge Mboya agreed with him.
“From the foregoing analysis, I come to inevitable and inescapable conclusion that the portion of land, comprising of the suit property, fell within Ngong Road Forest Reserve, which had hitherto been proclaimed and reserved as part of Ngong Forest,” judge Mboya said.
The judge said the land was therefore not unalienated government land that could be alienated and/or allocated by the Commissioner of Land.
“Declaration be and is hereby issued that the issuance of title, transfer and subsequent registration of the Plaintiff in the main suit as the proprietor of L.R. No. 22410, Nairobi, was irregular and illegal and unlawful.”
The judge declared that the land is public land as it forms part of Ngong Road Forest reserve.
“An order be and is hereby issued directing the Chief Land Registrar to cancel the title in respect of L.R No. 22410 I.R No. 179460. Consequently and in the premises, the Plaintiff be and is hereby ordered to surrender the title over and in respect of the suit property to the Chief Land Registrar for cancellation within 60 days from the date hereof.”
The judge said the Chief Land Registrar is at liberty to proceed and cancel the title of the suit property, even if Mutua fails to surrender it.
The Chief Land Registrar will advertise cancellation of the title through the Kenya Gazette.
Between 1992 and 1995, swathes of the forest were acquired irregularly.
In 2019, KFS said at least 100 plots have been hived off the gazetted forest. All the plots are, however, not developed.
In 2009, the KFS embarked on an aggressive programme to secure the forest.
In July 2017, the National Land Commission revoked 151 title deeds issued under dubious circumstances in the 1990s.