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ELCPartially AllowedELC No. 33 of 2015· [2017] KEELC 1294 (KLR)

William Osimata Emasete & another v County Government of Busia [2017] KEELC 1294 (KLR)

High Court of Kenya, Environment and Land Division
11 October 2017
4,184 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 ruled that gazette notices alone don't prove land was compulsorily acquired — the Busia family kept their land, and the county government must vacate.

What this practically means

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Executive summary

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The Plaintiffs, personal representatives of the estate of Desiranda Akanyati, sued the County Government of Busia (later joined by the Kenya Scouts Association) for trespass, encroachment, permanent injunction, restoration of the land and mesne profits over parcel Mundika/Bukhayo/329. Both Defendants filed defences and counter-claims asserting the land had been compulsorily acquired by the Government, impugning the register entries as fraudulent and unprocedural, and seeking cancellation of the title and registration in their favour. The court found the Defendants' objections based on name and parcel-number discrepancies to be minor clerical variations on which the Defendants, as the alleging party, had failed to discharge the burden of proof. The Defendants' failure to comply with a consent to re-file supporting affidavits left their defence resting on spent evidence. On ownership, the court held that Gazette Notices Nos. 1217 and 1218 of 7/4/1981 showed only that compulsory acquisition under the repealed Land Acquisition Act (cap 295) was intended and commenced, but that in the absence of any record of the inquiry, written award or compensation, acquisition was never proved. The impugned register entry was made pursuant to an unchallenged court order and could not be visited on the Plaintiffs. The Defendants' counter-claims were dismissed with costs. The Plaintiffs' trespass claim succeeded: permanent injunction, restoration of the land (with a self-help option at the Defendants' cost), costs and interest on costs were granted, but mesne profits were refused for want of evidence.

Key legal issues

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01

Proof of compulsory acquisition under the Land Acquisition Act (cap 295)

Holding

The Defendants failed to prove compulsory acquisition; gazette notices only show acquisition was contemplated and commenced but not concluded

Reasoning

The Land Acquisition Act required issuance and service of notices, survey, an inquiry at which interested persons were heard, a written award of compensation served on those interested, and payment at market value. The Defendants relied only on Gazette Notices Nos. 1217 and 1218 of 7/4/1981 evincing intention to acquire and to hold an inquiry. The record of the inquiry proceedings and the award were missing. Without these, and with no entry showing transfer of title to the acquiring body, acquisition was not proved.

p. 6
02

Discrepancies in names and parcel numbers in the register

Holding

The discrepancies were minor and without material impact; the Defendants, as the party alleging, failed to discharge the burden of showing different identities or parcels

Reasoning

The discrepancies were small spelling variations explicable by clerks of different language backgrounds. The Defendants never checked the 2nd Plaintiff's identity card against the green card, nor demonstrated that the transactions preceding the entry 'No. 29' referred to a parcel other than No. 329. Having made the allegations, the burden of proving them lay on the Defendants, and their allegations were rejected.

p. 5
03

Illegality of entries made after the government caution

Holding

Any irregularity in making the entries cannot be visited on the Plaintiffs, who do not make register entries, and the first impugned entry was made pursuant to a court order

Reasoning

Entries in the register are made by the Land Registrar and his officials, so any procedural defect in entry No. 3 is attributable to the registry, not the Plaintiffs. Moreover, DW1 himself conceded the entry was made pursuant to a court order that was never challenged, and such an order remains valid. The Defendants' allegation of illegality was therefore without substance.

p. 6
04

Defendants' reliance on spent affidavits

Holding

The supporting affidavits to ruled-upon applications remained spent evidence and the Defendants' failure to re-file them as agreed dented their defence

Reasoning

A consent had been entered on 28/2/2017 requiring the affidavits to be filed afresh so they could serve as statements in the suit, capable of cross-examination, but the Defendants never complied. The affidavits were addressed to the applications, not the suit, and became spent when the applications were ruled on. The omission was serious and weakened the defence.

p. 5
05

Trespass and encroachment

Holding

The Defendants' presence and activities on the suit land were demonstrated by oral and documentary evidence, and, ownership having resolved in the Plaintiffs' favour, the trespass claim succeeded except as to mesne profits

Reasoning

The Plaintiffs testified to road construction, murram mining and fencing, and produced diagrams showing constructed roads and fenced encroached portions. Whether the presence was justified depended on ownership, which the Defendants failed to prove. Mesne profits, however, were not supported by any evidence and were refused.

p. 5

Legal principles established

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  • Compulsory acquisition must be proved by records of the inquiry and written award of compensation, not merely by gazette notices of intention
  • A party alleging that discrepancies in names or parcel numbers denote different persons or parcels bears the burden of proving so
  • Court orders, unless successfully challenged, are deemed legal orders, and entries made pursuant to them cannot be impugned as illegal
  • Supporting affidavits in applications that have been ruled upon become spent and cannot be deployed as evidence in the suit without being re-filed

Court orders

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  1. 1.Counter-claim of the Defendants dismissed with costs
  2. 2.Permanent injunction restraining the Defendants, their employees, servants or agents from possessing, occupying, trespassing, constructing, encroaching or in any other way interfering with the suit premises
  3. 3.Order directed at the Defendants to remove any fence or structure erected or road constructed on the suit premises and restore the same to the previous state and condition
  4. 4.Should the Defendants fail to carry out the restoration, the Plaintiffs granted the option of doing it themselves at the Defendants' own costs
  5. 5.Costs of the suit granted to the Plaintiffs
  6. 6.Interest on costs at court rates

Authorities

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Legislation

  • Land Acquisition Act (cap 295, Laws of Kenya) (repealed)Sections 10(1) and 11

Cases cited (2)

  • Kanini Farm Limited vs Commissioner of Lands
    (1984) eKLR
  • Pashito Holdings & Another vs Ndungu & 2 Others
    [1997] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (Environment and Land Court Act); suit instituted by plaint dated 15/4/2015

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, "William Osimata Emasete & another v County Government of Busia [2017] KEELC 1294 (KLR)", Case Analysis (2017). ELC No. 33 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1294/eng@2017-10-11

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