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ELCPartially AllowedLand Case No. 88 of 2015· [2016] KEELC 832 (KLR)

Abdi Mohamed Noor v County Government of Turkana & another [2016] KEELC 832 (KLR)

Environment and Land Court
18 May 2016
EOE. Obaga
1,024 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that paying rent and keeping possession of an allocated plot protects your ownership, but you must prove losses to claim damages.

What this practically means

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Executive summary

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The Plaintiff sued the County Government of Turkana and Lojaam Luqa Energy Co. Limited seeking a declaration that he is the lawful owner of Plot No. 268 at Lokichogio Township, a permanent injunction against trespass, damages for trespass/mesne profits, costs and interest. The Defendants were served but neither entered appearance nor filed a defence, so the suit proceeded by way of formal proof. The Plaintiff testified that the defunct Turkana County Council allocated him the 8-acre plot on 24/9/1992; he took possession, fenced it, obtained change of user to a light industrial commercial plot, had a Part Development Plan prepared and forwarded for approval, paid the stand premium and continued paying plot rent to the Council and later to the County Government. In April 2015 the County Government allegedly trespassed and began erecting a ward Administrator's office block, ignoring his protests and even an earlier injunction. The court found the documentary evidence uncontroverted: the plot was duly allotted, user was changed, and crucially the County Government continued to receive plot rent after the alleged trespass, showing it still held the Plaintiff as owner. Although not all allotment conditions were shown to have been fulfilled, there was no evidence of repossession and re-allocation, so the Plaintiff was held the rightful owner. However, the claim for general damages for trespass and mesne profits failed because the Plaintiff laid no evidentiary basis - no evidence of the portion occupied, land value, or completion of the building. The court declared the Plaintiff lawful owner, granted a permanent injunction, dismissed the damages claim, and awarded costs to the Plaintiff.

Key legal issues

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01

Ownership of the allocated plot

Holding

The Plaintiff proved lawful allocation and ownership of Plot No. 268 on a balance of probability

Reasoning

The Plaintiff produced a letter of allotment dated 24/9/1992, consent to change user, a Part Development Plan, and receipts for plot rent from both the defunct County Council of Turkana and its successor, the County Government of Turkana. There was no evidence to controvert this evidence. Even after the alleged trespass, the County Government continued receiving plot rent, showing it still held the Plaintiff as owner of the suitland.

p. 2
02

Effect of unfulfilled allotment conditions

Holding

Unfulfilled allotment conditions did not defeat the Plaintiff's title absent evidence of repossession and re-allocation

Reasoning

The letter of allotment required payment of stand premium, approval of a development plan and building within two years, failing which the plot would be repossessed and re-allocated. While there was no evidence all conditions were met, there was equally no evidence the plot was repossessed and re-allocated to anyone else. On the state of the evidence, the suitland belonged to the Plaintiff.

p. 2
03

Damages for trespass/mesne profits

Holding

The claim for general damages for trespass and mesne profits failed for want of evidentiary basis

Reasoning

The Plaintiff did not adduce evidence of the portion of the suitland taken by the Defendants, the building was incomplete and unoccupied, and there was no evidence of land values in Lokichogio. The court held it was incumbent on the Plaintiff to lay a basis for assessment and found no basis on which to assess either general damages for trespass or mesne profits.

p. 2

Legal principles established

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  • Where an allottee has taken possession, paid stand premium and plot rent, and there is no evidence the plot was repossessed and re-allocated despite unfulfilled allotment conditions, the allottee is the rightful owner
  • A claimant seeking damages for trespass or mesne profits must lay a evidentiary basis for their assessment

Court orders

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  1. 1.A declaration that the Plaintiff is the lawful owner of Plot No. 268 situated at Lokichogio Township in Turkana County
  2. 2.A permanent injunction restraining the Defendants, their agents, servants and or employees or anyone claiming through them from trespassing on, occupying, constructing or doing anything to interfere with the Plaintiff's quiet possession of Plot No. 268
  3. 3.The Defendants to pay costs of the suit to the Plaintiff
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (Environment and Land Court Act)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Abdi Mohamed Noor v County Government of Turkana & another [2016] KEELC 832 (KLR)", Case Analysis (2016). Land Case No. 88 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/832/eng@2016-05-18

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