Kubai Investments Limited v Attorney General Sued on Behalf of the Ministry of Lands & 10 others (Environment and Land Petition E019 of 2021) [2025] KEELC 6868 (KLR) (13 October 2025) (Judgment)
Neutral citation:
[2025] KEELC 6868 (KLR)
Republic of Kenya
Environment and Land Petition E019 of 2021
CG Mbogo, J
October 13, 2025
IN THE MATTER OF ARTICLES 2,3,10,19,20,21,22,23,40,47,60,61,64,67 AND 253 OF THE CONSTITUTION OF KENYA
Between
Kubai Investments Limited
Petitioner
and
Attorney General Sued on Behalf of the Ministry of Lands
1st Respondent
Attorney General Sued on Behalf of the Registrar General of Companies
2nd Respondent
Attorney General Sued on Behalf of the Betting Control & Licensing Board
3rd Respondent
The Chief Land Registrar
4th Respondent
National Land Commission
5th Respondent
Edifice Real Estate Limited
6th Respondent
Azareal Investment Limited
7th Respondent
Galaxy Walker Limited
8th Respondent
Tourist Paradise Investment Limited
9th Respondent
Dolphin Holdings Limited
10th Respondent
Ketan Surendra Somaia
11th Respondent
Judgment
1.The petitioner filed the petition dated 17th May, 2021 seeking the following orders:-a.Permanent injunction stopping the building and/or any dealing by the respondents and/ or any other third party on No. 209/ 18886 (Original 209/ 7437).b.A declaration that the title held by Edifice Real Investment Limited for land known as No. 209/18886 was improperly procured and same be cancelled and reverted to the original no. 209/7437 under Tourist Paradise Investment.c.That the register of the land known as No. 209/18886 (original 209/ 7437) be rectified so as to remove the entry in favour of Edifice Real Investment Limited and the title to revert back to the proprietorship of Kubai Investment Ltd.d.A declaration that property known as No. 209/1886 (original 209/7437) is private and not public land neither a public utility.e.General aggravated and damages for deprivation of property.f.In the alternative, compensation for the land at current market value.g.Interest and costs.h.Any other relief the court might deem just and equitable.
2.The gist of the petition is that the late Fredrick Polwarth Kubai, (hereinafter referred to as the late Fredrick Kubai) incorporated Tourist Paradise Limited on 7th March, 1967 together with Govindra Dave allocating themselves one share each. That on 1st October, 1968, the suit property known as LR. No. 209/7437 was allocated to the late Fredrick Kubai as a reward by the government for fighting for independence and the same was allocated to the 9th respondent.
3.The late Fredrick Kubai incorporated Kubai Investments Limited on 12th November, 1970 and in 1971, he transferred his 24 shares to the petitioner and remained with one share within the 9th respondent’s company. The petitioner further stated that the first lease of the suit property was issued in 1968 in favour of the 9th respondent for a term of 15 years and it was later renewed for another 7 years. That before the expiry of the initial lease, the 3rd respondent entered into an agreement with the 9th respondent which was littered with fraud as it was entered into without the minutes of the company or any resolutions.
4.The petitioner stated that in 1990, the lease was extended for another period of 19 years without any condition of surrender thus overtaking the premature agreement of 1989 and at no point did the 3rd respondent own the suit property. Further, that there was no transfer of one share from the late Fredrick Kubai and the petitioner to the 10th respondent as the petitioner still holds the original share certificate and according to the records held by the 2nd respondent as communicated in the letter dated 18th November, 2014, the 10th respondent does not appear in its database as a registered company. The petitioner contended that after the illegal transfer of shares, and together with the late Fredrick Kubai, the petitioner lost control of the suit property.
5.Further, that through a series of illegal and fraudulent dealings, the grant of the suit property was charged, subdivided and surrendered to the government. The suit property was charged to NIC Bank on 14th November, 1994 by the 9th respondent including a debenture dated 15th June, 2000. The petitioner stated that the 9th respondent defaulted in repaying the amount secured and the bank exercised its statutory power of sale.
6.As a result, the suit property was transferred to the 7th respondent by the 8th respondent and on 16th October, 2012, the 7th respondent sold the same to the 6th respondent. Further, that the family of the late Fredrick Kubai, wrote complaints to the 5th respondent where a ruling was delivered on 6th September 2016 that confirmed that the suit property is legally registered in the name of the 6th respondent. The petitioner further contended that the 3rd respondent has never held the land, and that it has never been public land or utility. Further, that by determination of ELC JR No. 25 of 2017, the court held the power of the 5th respondent to review the grant of public land lapsed on the title.
7.The petitioner pleaded particulars of fraud, illegality, negligence, deceit and misrepresentation against the respondents. The petitioner cited the constitutional provisions violated and outlined the provisions of Articles 10 (1), 22 (2)(b) and (c), 23(1) and (3), 40 (1) and (3), 162 (2)(b), 165 (3)(b) and 258 of the Constitution.
8.The petition was supported by the affidavit of Stephen Kubai, the director/shareholder of the petitioner sworn on even date. The affidavit depones to the contents of the petition and there would be no need to reproduce the same.
9.The 3rd respondent filed its replying affidavit sworn on 8th September, 2022 by Cyrus K. Maina for and on behalf of the 1st and 4th respondents. The 3rd respondent deposed that the government’s ownership of the suit property under gran I.R 36538 arose out of an agreement between the 9th respondent and the government through the 3rd respondent for grant of two casino licenses; one in Museum Hill and another in Mombasa. Further, that this agreement came from a request by the 9th respondent to operate the casino business in the country after the enactment of the Betting Lotteries and Gaming Act Cap 131. It was agreed between the parties that the license was for a period of fifteen years and that the same was approved by the directors of the company who were F. Labriola, F.P.K Kubai, P.G Dave and G.B Dessy as the secretary. The 3rd respondent deposed that the terms of the agreement provided for the operations of the business including surrender after the expiry of the fifteen-year period, importation of equipment among other responsibilities.
10.The 3rd respondent further deposed that a second agreement dated 11th June 1982 was entered into varying the initial agreement for a further period until 31st October, 1990 and the government issued the 9th respondent with a grant on L.R No. 209/7437 for the period commencing on 1st May 1987, and in consideration of clause 6 (a) of the agreement, the 9th respondent agreed to surrender to the government the suit property and the buildings including the equipment thereon. It was further deposed that at the expiry of the further agreement on 17th February, 1989, the 9th respondent and the 3rd respondent entered into another agreement dated 31st December, 2000 wherein it was agreed that the 9th respondent would surrender the suit property and everything on it to the government on 1st January, 2001 as well as its titles and interest, if any, on the land.
11.The 3rd respondent deposed that the fourth and final agreement was extended on 29th June, 1993 for a term of ten years from 1st January, 2001 to 31st December 2010, and at the expiry of this contract the 9th respondent refused to surrender the suit property to the government. Further, that it learnt that the 9th respondent acted in bad faith and procured a bank loan and charged the property to the Bank for a sum of Kshs.60,000,000 which it failed to repay. Further, that they learnt that the 9th respondent had charged the property to a third party without the consent of the commissioner of land which was illegal, fraudulent and a violation of the rights of the government on land. The 3rd respondent contended that without due diligence on the rights of the government on the suit property, the bank sold the property in exercise of its statutory power of sale to the 8th respondent and granted a further term of lease for 15 years from 1st November, 2008 being grant no. I.R 114050 which was unlawful as it sold government land.
12.Further, the 3rd respondent deposed that subsequent sale of the suit property to the 7th respondent who later sold it to the 6th respondent were illegal transactions. That following a complaint by the estate of the late Fred Kubai, the 5th respondent found that the suit property was legally registered to the 6th respondent which was an erroneous decision. Further, that other parties have also laid claim of ownership of the suit property besides the government through the 3rd respondent, and the 5th respondent corrected this error vide gazette notice no. 6862 dated 17th July 2017 revoking the said title under grant no. L.R 114050. That upon revocation, the suit property was vested in the Cabinet Secretary Treasury to hold in trust for the 3rd respondent in accordance with the agreement of 1968.
13.That in a judgment delivered on 26th July, 2018, the court found that it was necessary to establish whether the suit property was private or public land and the investigations were seized by the Directorate of Investigations. Further, that following the seizure, the buildings which were to be surrendered were demolished by the parties in this case.
14.In conclusion, the 3rd respondent deposed that the petitioner’s allegations of any interest in the company should be directed to the 6th, 7th, 8th, 9th, 10th and 11th respondents as the matter of change of directors was an internal company matter.
15.The petition was canvassed by affidavit evidence and by way of written submissions. The petitioner filed its written submissions dated 5th May, 2025 where it raised the following issues for determination: -1.Whether the transfer of shares from the petitioner to the 10th respondent was illegal.2.Whether there was a fraudulent transfer of the shares from the petitioner to the 10th respondent.3.What is the effect of the fraudulent transfer of shares from the petitioner to the 10th respondent on the proprietorship of L.R. Number 209/7437.4.Whether the petitioner is entitled to the prayers sought.5.Whether the petitioner is entitled to the costs of this application.
16.On the first issue, the petitioner submitted that pursuant to Section 81 (3) of the Companies Act, Cap 486 (repealed), and in the absence of a duly executed certified and stamped transfer in favour of the 10th respondent, the acquisition of the shares in the 9th respondent by the 10th respondent was done illegally. While the 2nd respondent admitted this act in a letter dated 18th November, 2014, its actions were complicit, illegal and a blatant disregard of the due process.
17.On the second issue, and while relying on the case of Arthi Highway Developers Ltd v West End Butchery Limited & 6 Others [2015] eKLR, and Ruben & Another v Great Fingall Consolidated (1906) A.C 439, the petitioner submitted that the 10th respondent caused to be registered in its name shares illegally acquired from the petitioner in full knowledge with the intention to defraud it of its right to own shares in the 9th respondent. Further, that the illegal transfer of shares from itself to the 10th respondent led to the ouster of the petitioner from the control in the 9th respondent and usurpation of ownership rights of the petitioner by the 10th and 11th respondent. The petitioner further submitted that the illegal charging of the suit property by the 10th and 11th respondent while in control of the 9th respondent fell outside the agreement between the 9th respondent and the 3rd respondent. Further, that the illegal transfer of shares, charging the suit property and subsequent default on payment were calculated acts of fraud meant to deny the petitioner its right to ownership of the shares in the 9th respondent and the suit property.
18.On the third issue, the petitioner submitted that there was fraudulent transfer of its shares to the 10th respondent, and it follows that all the dealings relating to the suit property were illegitimate based on the evidence produced. The petitioner relied on the cases of Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR), Sehmi & another v Tarabana Company Limited & 5 others [2025] KESC 21 (KLR) and Dr. Joseph Arap Ngok v Justice Moijo ole Keiwua & 5 others, Civil Appeal No. Nai 60 of 1997.
19.On the fourth issue, the petitioner submitted that it has provided proof that it is the beneficial owner of the suit property through ownership of majority of the shares in the 9th respondent to which the land was allocated. To buttress on this issue, the petitioner relied on the cases of Charles Muturi Macharia & 6 others v The Standard Group and 4 others (Petition No. 13 of 2022), and City of Vancouver v Ward [2010] 2 SCR 28.
20.On the fifth issue and in conclusion, the petitioner submitted that the costs of the petition ought to be borne by the 2nd, 10th and 11th respondents.
21.The 1st, 3rd and 4th respondents filed their written submissions dated 25th June, 2025 where they raised the following issues for determination: -a.Whether this court has jurisdiction to determine the illegality or otherwise of transfer of shares from the petitioner.b.Whether the petitioner is entitled to the prayers sought.
22.On the first issue, the 1st, 3rd and 4th respondent submitted that the petitioner has invited the court to make a finding that the transfer of the petitioner’s share in the 9th respondent was illegally and fraudulently done as the same was done without the consent of the petitioner or the late Fredrick Kubai. They submitted that pursuant to Article 162 (2) of the Constitution of Kenya and Section 13 of the Environment and Land Court Act, this court lacks jurisdiction to determine the illegality or otherwise of transfer of the petitioner’s shares held by the respondent to the 10th respondent.
23.On the second issue, the 1st, 3rd and 4th respondents submitted that the petitioner has never been registered as the owner of the suit property and by its own admission, the suit property was first registered in the name of the 9th respondent in 1968, and that it’s interest in the land was by virtue of its shareholding in the 9th respondent which it transferred to the 10th respondent. They submitted that the issue of the alleged illegality in the said transfer cannot be determined by this court. Further, that while the suit property is registered in the name of the 6th respondent as evidenced in the judgment in ELC JR No. 25 of 2017, the suit property reverted back to the government on 31st December 2010 following the expiry of the agreement executed on 29th June, 1993 between the government and the 9th respondent. They submitted that the suit property is public land.
24.The 1st, 3rd and 4th respondents further submitted that the root of the title held by the 6th respondent can be traced back to the 9th respondent who had no proper title over the suit property to transfer the same to the 8th respondent. They agreed with the petitioner that the court should declare that the title held by the 6th respondent was improperly procured and ought to be cancelled. Reliance was placed in the case of Dina Management Limited v County Government of Mombasa & 5 others [2021] KECA 503 (KLR).
25.In conclusion, the 1st, 3rd and 4th respondents submitted that the petitioner is not entitled to the prayers sought as it has been demonstrated that it was not the registered owner of the suit property. They submitted that the petition should be dismissed with costs.
26.The 2nd, 5th, 6th, 7th, 8th, 9th 10th and 11th respondents did not file their response to the petition. Be that as it may, I have considered the petition, the replying affidavit and the written submissions filed by the respective parties. In my view, the issues for determination are as follows: -1.Whether this court has jurisdiction to determine the legality or otherwise of transfer of shares from the petitioner.2.Whether the petitioner is entitled to the prayers sought.3.Costs.
27.The petitioner herein contended that the suit property was allocated to the late Fredrick Kubai as a reward for his fight for independence by the government. This fact was not corroborated by evidence as the first registration of the suit property was in the name of the 9th respondent wherein the late Fredrick Kubai was a shareholder. The business dealings of the suit property in Museum Hill and Mombasa to run a casino has not been refuted, and it is evident that the the license to transact the business was extended between the parties through the various agreements over a long period. As I have noted, the petitioner does not state with precision, how the relevant articles of the Constitution referred to under paragraph 3 of the body of the petition were violated. Instead, a general reading of the petition would point towards an ordinary civil claim.
28.The jurisdiction of this court has also been called to scrutiny. Indeed, it is trite law that jurisdiction is everything. In the case of Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited [1989] KLR 1, it was held: -
29.When the jurisdiction of a court is challenged, the court is first called to determine this issue before anything else. In my view, it was incumbent upon the petitioner to respond to the issue of jurisdiction since it is the party that moved the court seeking relief. While the response by the 1st, 3rd and 4th respondents was filed in 2022, the petitioner did not find any need to respond to the same. Section 13(2) of the Environment and Land Court Act provides that:-
30.In the case of Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & Others [2012] eKLR the Court held that:
31.While asserting that the 3rd respondent never owned the suit property, by its own admission, the petitioner contended that it was after the illegal transfer of shares that the petitioner lost control of the suit property. The petitioner argued that at no point did the petitioner and specifically the late Fredrick Kubai transfer shares to the 10th respondent. It was argued that since there was no document effecting the transfer, then all the transactions that followed thereafter were illegal and fraudulent. The petitioner now invites this court to find that indeed all the land transactions that took place was unlawful based on the absence of the transfer of shares. In doing so, the petitioner wants the court to grant a permanent injunction and a rectification of the title to indicate the 9th respondent and the petitioner as the registered owner of the suit property.
32.While one might argue that this is a mixed grill case, the nature of the dispute revolves around the internal dealings of the affairs of the 9th respondent. In my view, resolving this issue first would enable this court effectively deal with the issue of interest in the suit property. My attention has been drawn to the issues for determination as submitted by the petitioner which to a large extent are not issues for this court to determine. The letter dated 18th September, 2013 by the Registrar of Companies reflects the situation at hand. The petitioner vehemently refuted claims that the late Fredrick Kubai transferred shares to the 10th respondent. The 2nd respondent advised that a transfer of shares form ought to be executed by both the transferee and the transferor and the necessary stamp duty to the collector of stamp duty. It was advised that such form should be in the custody of the company secretary and that it was not a legal requirement that the same should be filed with the Registrar of Companies. The petitioner was urged to consult the Company Secretary.
33.From this letter and based on the annual return filed in 1989, the late Fredrick Kubai transferred his shares and to that extent he lost his interest on the suit property. There is nothing that has been shown that a follow up was made with the company secretary. Equally, the petitioner did not challenge the 2nd respondent’s findings on the alleged fraudulent transactions. At this juncture, I am not persuaded that the petition is a land matter until the allegations of transfer of shares has been determined. The jurisdiction of this court is limited to dealing with title and tenure of land. The issues for determination as submitted by the petitioner are not within the purview of this court to determine.
34.In Joel Kyatha Mbaluka t/a Mbaluka & Associates Advocates v Daniel Ochieng Ogola t/a Ogola Okello & Co Advocates [2019] eKLR, it was held as follows:-
35.While I place reliance on the above authority and looking at the predominant issues raised in the petition, it is my finding that this court lacks jurisdiction to hear and determine the same. The petition dated 17th May, 2021 is thus dismissed. Each party to bear their own costs.Orders accordingly.
DATED, SIGNED & DELIVERED VIRTUALLY THIS 13TH DAY OF OCTOBER, 2025.HON. MBOGO C.G.JUDGE13/10/2025.In the presence of:Mr. Benson Agunga - Court assistantMs. Nyawira for the 1st, 3rd and 4th RespondentsMr. Namude and Mr. Fred Athuok for the Petitioner – absent