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ELCPartially AllowedELC.481 of 2017 (formerly Milimani ELC.1068 of 2013)· [2017] KEELC 779 (KLR)

Kabogo Tharau v Joash Omwenga & another [2017] KEELC 779 (KLR)

Environment and Land Court
17 November 2017
LGL. Gacheru
1,066 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court confirmed that unchallenged share certificates prove land ownership, granting injunctions and ordering a developer off the plots within 90 days.

What this practically means

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Executive summary

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The Plaintiff, Kabogo Tharau, sued the 1st Defendant Joash Omwenga and the 2nd Defendant Embakasi Ranching Co. Limited seeking injunctions restraining trespass on and development of Plots Nos. E.249B and E.250B, restraining transfer of his shareholding, plus costs and interest. He alleged he held two shares (certificate no.4606) in the company, was allocated the two plots, and that in July/August 2013 the 1st Defendant encroached and began construction, while the 2nd Defendant failed to act and might be acting in cahoots with the 1st Defendant. Neither defendant filed a defence; interlocutory judgment was entered on 21st November 2013 and the matter proceeded to formal proof. Kabogo Tharau died on 30th January 2014; George Ngure Kabogo was substituted as plaintiff as legal representative of the estate and testified relying on the deceased's witness statement, producing the share certificate, letter of allocation and receipts. The court found the shares were acquired in 1978, the plots allocated and all requisite fees paid, with no evidence that the allocation was revoked. Applying the authority of Esther Ndegi Njiru & Another v Leonard Gatei (2014) eKLR, it inferred from the failure to file defences that the defendants had no answer to the claim. The court held the Plaintiff was the proprietor of the two plots, that the 1st Defendant's construction amounted to trespass breaching Article 40 rights, and that the case was proved on a balance of probabilities. Judgment was entered in terms of prayers (a), (b) and (c); the 1st Defendant was given 90 days to vacate, failing which eviction could follow. Judgment delivered at Thika on 17th November 2017.

Key legal issues

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01

Proprietorship of plots E.249B and E.250B

Holding

The Plaintiff proved allocation and proprietorship of the two plots through uncontroverted share certificates, letter of allocation and receipts

Reasoning

The court found that Kabogo Tharau acquired shares in the 2nd Defendant in 1978, was allocated the two plots, and paid all requisite fees. The defendants neither entered appearance nor filed defences, and no evidence was led to show the allocation was revoked. The claim therefore stood uncontroverted and was proved on a balance of probabilities.

p. 2
02

Trespass and constitutional protection of property

Holding

The 1st Defendant's development on the plots amounted to trespass breaching the Plaintiff's Article 40 property rights, entitling him to the court's protection

Reasoning

Having found the Plaintiff to be the rightful proprietor, the court held that construction and development by the 1st Defendant without authority constituted trespass and breached the property rights guaranteed by Article 40 of the Constitution, justifying injunctive relief and an order to vacate.

p. 2

Legal principles established

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  • Failure to file a defence after appointing advocates permits the inference that a defendant has no answer to the claim
  • Unchallenged share certificates and allocation documents suffice to establish proprietorship on a balance of probabilities

Court orders

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  1. 1.Judgment entered for the Plaintiff against the Defendants in terms of prayers (a), (b) and (c)
  2. 2.Injunction restraining the 1st Defendant and his agents from trespassing on or interfering with Plots Nos. E.249B and E.250B
  3. 3.Injunction restraining the 2nd Defendant from transferring or interfering with the Plaintiff's shareholding and/or the suit properties
  4. 4.The 1st Defendant directed to move out of the suit property within 90 days from the date of judgment, the Plaintiff to issue the relevant notice, failing which the Plaintiff may evict him
  5. 5.Costs of the suit granted to the Plaintiff (prayer (c))

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40

Cases cited (1)

  • Esther Ndegi Njiru & Another Vs Leonard Gatei
    (2014) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (Article 162(2) of the Constitution); protection of property rights under Article 40 invoked

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, "Kabogo Tharau v Joash Omwenga & another [2017] KEELC 779 (KLR)", Case Analysis (2017). ELC.481 of 2017 (formerly Milimani ELC.1068 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/779/eng@2017-11-17

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