Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedCivil Case No 537 of 2005· [2014] KEELC 605 (KLR)

Waas Enterprises Limited v City Council Of Nairobi & another [2014] KEELC 605 (KLR)

High Court of Kenya (land and property matter)
26 September 2014
5,156 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

#

Kenya's High Court confirmed that land already allotted and registered belongs to that allottee, and a later council licence cannot override it.

What this practically means

#

Executive summary

#
The plaintiff, Waas Enterprises Limited, sued the 1st defendant (a city council, defended through the Attorney General) and the 2nd defendant (a Temporary Occupation Licence holder) seeking eviction, a declaration of trespass, cancellation of the T.O.L, a permanent injunction, damages for loss of business, mesne profits, special damages of Ksh 39,700,000/= and costs. The plaintiff traced its title to an allotment letter dated 17th June 1999 and a certificate of lease registered on 14th November 2002, arguing that the 1st defendant had no authority to license the 2nd defendant onto land already allotted. The 1st defendant denied the plaintiff's title and locus standi, while the 2nd defendant contended the suit was an abuse of process. The court found that once land is allotted and conditions met, it is unavailable for reallocation unless the first allocation is validly cancelled. The plaintiff, as first registered lessee, was entitled to exclusive possession; the 2nd defendant was held to be a trespasser who had to vacate within 30 days, with the 1st defendant ensuring vacant possession. A permanent injunction was issued. Both defendants were held liable for general damages for trespass assessed at Ksh 1,000,000/= per year from the filing of the suit on 6th May 2005, with interest at court rates. However, the claims for mesne profits and special damages of Ksh 39,700,000/= failed: no specific mesne profits sum was pleaded, and the valuer's report of Ksh 70,700,000/= was at variance with the pleaded figure, evidence which the court disregarded as parties are bound by their pleadings. The plaint was allowed in terms of specified prayers, with costs to the plaintiff.

Key legal issues

#
01

Validity of allocation and the effect of an allotment letter

Holding

The plaintiff, having been allotted the land in 1999 and registered as first lessee, held absolute proprietary rights; the property was not available for a T.O.L to the 2nd defendant in 2000

Reasoning

Relying on the Rukaya Ali Mohamed case, the court held that once an allotment letter issues and conditions are met, the land is unavailable for reallocation unless the first allocation is validly cancelled. The plaintiff's allotment letter predated the 2nd defendant's T.O.L, and the plaintiff was registered as first lessee; hence the 1st defendant had no authority to license the 2nd defendant onto the land.

p. 5
02

Trespass by the 2nd defendant

Holding

The 2nd defendant was in the suit property illegally and is a trespasser who must vacate

Reasoning

The 2nd defendant's T.O.L was issued over property already allotted to the plaintiff. She did not claim ownership, and the licence had been cancelled by the 1st defendant through the Chief Valuer. Had she exercised due diligence, she would have discovered the plaintiff's registered interest. She must vacate within 30 days, with the 1st defendant ensuring compliance.

p. 6
03

Permanent injunction

Holding

Granted, having found absolute ownership in the plaintiff and trespass by the 2nd defendant, with the case proved on a balance of probability

Reasoning

Having found the plaintiff holds absolute ownership and the 2nd defendant has no proprietary interest, the court found the case proved on a balance of probability and issued a permanent injunction restraining the defendants from dealing with or developing the suit land.

p. 6
04

General damages for trespass

Holding

Both defendants jointly liable; damages assessed at Ksh 1,000,000/= per year from 6th May 2005 for the pendency of the suit, with interest

Reasoning

Although the 2nd defendant acted under a licence, she was put on notice of the plaintiff's interest through the licence cancellation and enforcement notice, yet remained. The 1st defendant was blameworthy for licensing over allotted land. The court, in its discretion and considering the nature and location of the land, assessed general damages at Ksh 1,000,000/= per year from the date of filing.

p. 7
05

Mesne profits and special damages

Holding

Both refused for failure to plead and prove specific sums; evidence at variance with pleadings was disregarded

Reasoning

No specific mesne profits sum was pleaded, and the loss claim ignored construction costs and intervening factors. The valuer's figure of Ksh 70,700,000/= differed from the pleaded Ksh 39,700,000/=; parties are bound by pleadings and unpleaded evidence goes to no issue. The claim for special damages therefore failed for want of strict proof.

p. 7

Legal principles established

#
  • Once an allotment letter is issued and the allottee meets the conditions therein, the land is no longer available for allotment to another person unless the first allocation is validly and lawfully cancelled
  • A registered proprietor is entitled to all proprietary rights, including exclusive possession, to the exclusion of all others under Sections 24 and 25 of the Land Registration Act
  • Parties are bound by their pleadings; evidence at variance with the averments in the pleadings goes to no issue and must be disregarded
  • Special damages must be pleaded with particularity and strictly proved

Court orders

#
  1. 1.The 2nd defendant to vacate the suit land and hand over vacant possession to the plaintiff, with the 1st defendant ensuring she vacates within 30 days from the date of the judgment
  2. 2.A permanent injunction restraining the defendants from dealing with the suit land or in any other way developing it
  3. 3.General damages for trespass assessed at Ksh 1,000,000/= per year from 6th May 2005, calculated for the number of years the suit was pending, with interest at court rates from the date of judgment until settlement in full
  4. 4.The amended plaint allowed in terms of prayers (b), (bi), (b ii), (c), (d) and (e)
  5. 5.Costs awarded to the plaintiff

Authorities

#

Legislation

  • Land Registration ActSections 24 and 25(1) and (2), and Section 28 (referred to)

Cases cited (5)

  • Rukaya Ali Mohamed vs. David Gikonyo Nambacha & Another
    Kisumu HCCA No. 9 of 2004
  • Peter Mwangi Mbuthia vs. Samow Edin Osman & Naftali Ruth Kinyua
    Civil Application No. NAI No.38 of 2004
  • Coast Bus Service Ltd versus Murunga Danyi & 2 Others
    (1992) LLR, 318
  • Independent Electoral and Boundies Commission & another v Stephen Mutinda Mule & 3 others
    [2014] eKLR
  • Adetoun Oladeji (Nig) Ltd Vs. Nigeria Breweries Plc
    S.C. 91/2002
Jurisdiction invoked
Original civil jurisdiction of the High Court over claims relating to land (trespass, possession and injunction)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Waas Enterprises Limited v City Council Of Nairobi & another [2014] KEELC 605 (KLR)", Case Analysis (2014). Civil Case No 537 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/605/eng@2014-09-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.