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ELCAllowedLand Case No. 357 of 2010· [2017] KEELC 883 (KLR)

Bernard Kariuki Waruru v Francis Waweru & 3 others [2017] KEELC 883 (KLR)

Environment and Land Court
23 November 2017
EOE. O. Obaga
1,930 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Nairobi court confirmed that in double-allocated public plots, the first person allocated and who pays first keeps the land.

What this practically means

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Executive summary

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The plaintiff sued four defendants claiming ownership of plot No. 158 Kahawa West Phase II, seeking a declaration of ownership, a permanent injunction, an order for demolition of structures erected on the plot, and costs. The case against the first defendant was withdrawn in October 2014; the third defendant (City Council of Nairobi) entered appearance but filed no defence and took no meaningful part in the proceedings. The plaintiff testified that he was allotted the plot by the third defendant by allotment letter dated 25th June 1997, paid the stand premium and ground rent, and had been paying rates; in 2010 he found the second and fourth defendants constructing on his plot. The second defendant claimed allocation of the same plot through an area councillor by letter dated 21st September 2001; the fourth defendant claimed plot No. 159 adjoining it. The court framed two issues: who is the lawful allottee of plot No. 158, and whether the fourth defendant had encroached upon it. It found the plaintiff's allotment earlier and supported by payment and by the third defendant's own records published in the newspapers, while the second and fourth defendants made no payments until after suit was filed; plot No. 159 was shown in the records to belong to Grace Musyoki. The court held the plaintiff the lawful owner, found the fourth defendant a trespasser, and entered judgment for the plaintiff with a declaration, permanent injunction, an order for demolition within 90 days after a survey by the County Surveyor under police supervision, and costs against the defendants.

Key legal issues

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01

Who is the lawful allottee of plot No. 158 Kahawa West Phase II?

Holding

The plaintiff is the lawful owner of plot No. 158.

Reasoning

The plaintiff produced an allotment letter dated 25th June 1997 and paid the stand premium and ground rent, receiving a receipt, and was shown as owner of plot 158 in the third defendant's public notice. The second defendant's letter of allocation was dated 21st September 2001 and he made no payment until 2012, after suit was filed. Plot 159, claimed by the fourth defendant, did not exist - the records showed Grace Musyoki as its owner. Both defendants were therefore on the plaintiff's plot.

p. 3
02

Whether the fourth defendant encroached upon and/or trespassed into plot No. 158

Holding

The fourth defendant is a trespasser on plot No. 158.

Reasoning

The court found that plot No. 159, which the fourth defendant claimed to own, did not exist and that the plot he occupied fell within plot No. 158. The fourth defendant had agreed to a survey being done, and the court indicated its finding would be vindicated once the Nairobi City Surveyor established the boundaries on the ground.

p. 3

Legal principles established

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  • In a case of double allocation of land, the first allottee in time takes precedence.

Court orders

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  1. 1.A declaration that the Plaintiff is the owner of plot No. 158 at Kahawa West Phase II for which the defendants have no right to encroach upon
  2. 2.A permanent injunction to restrain the defendants, their agents, employees and servants from alienating, trespassing, encroaching upon or in any manner dealing with plot No. 158 Kahawa West Phase II
  3. 3.An order directing the defendants to demolish the permanent structures illegally erected on plot No. 158 Kahawa West Phase II within 90 days, failing which the plaintiff may do so at the defendants' cost
  4. 4.Before demolition is carried out, the County Surveyor of Nairobi City County shall within 90 days carry out a survey to establish the boundaries of plot No. 158 Kahawa West Phase II under the supervision of the OCS Kiamumbi Police Station for security reasons
  5. 5.The costs of the suit to be borne by the defendants
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) of the Constitution, Environment and Land Court Act) - as reflected by the court's own designation as the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "Bernard Kariuki Waruru v Francis Waweru & 3 others [2017] KEELC 883 (KLR)", Case Analysis (2017). Land Case No. 357 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/883/eng@2017-11-23

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