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ELCAllowedLand Case No. 6 of 2016· [2018] KEELC 1382 (KLR)

John Kibet Bii v Martin Kironget Mogoi [2018] KEELC 1382 (KLR)

Environment and Land Court
24 September 2018
MNMwangi Njoroge
1,823 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 in Kitale confirmed the plaintiff as the rightful owner of a settlement plot and ordered the occupier to vacate within 90 days.

What this practically means

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Executive summary

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The plaintiff sued for a declaration that he is the lawful allottee of Plot No. 1169 Kitalale Settlement Scheme, Phase III, together with a permanent injunction against trespass and interference, costs and interest. He claimed he was allotted the 2.5-acre plot, paid the requisite fees to the Settlement Fund Trustees, and had been in occupation since 2002, until the defendant allegedly trespassed in 2007. The defendant denied occupation, asserting he was settled by his father on Plot No. 461 in the scheme and had been in quiet possession since 2001, and accused the plaintiff of fraud. The plaintiff testified and called two officials: the County Land Adjudication and Settlement Officer, who produced allocation records showing Plot 1169 was allocated to the plaintiff on 2/12/2002 and Plot 461 to the defendant's father Jonathan Kironget, and a Ministry of Lands Surveyor who located Plot 461 in Phase 1 and Plot 1169 in Phase 3 and identified another person as occupying Plot 461. The defendant testified alone, admitted he had no land or succession documents in the scheme, and called no expert witness. The court framed three issues: occupation, the proper allottee, and the orders to issue. Relying on the uncontroverted expert evidence, it found the defendant in wrongful occupation of Plot 1169, confirmed the plaintiff as the lawful allottee, and found no double allocation. Judgment was entered for the plaintiff on a balance of probabilities: a declaration of lawful allotment, an order for the defendant to vacate within 90 days failing which forcible eviction, a permanent injunction, and costs to the plaintiff.

Key legal issues

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01

Whether the defendant is in occupation of the suit land

Holding

The court found that the defendant is in occupation of Plot No. 1169 in Kitalale Scheme Phase 3, based on the unshaken expert evidence of the County Land Adjudication and Settlement Officer and the Surveyor

Reasoning

The court relied on the expert evidence of PW2 and PW3, which was unshaken in cross-examination. The defendant called no expert witness to controvert the officials' evidence about the location of the plots and his occupation. The officials' records and site visit established that Plot 1169 is distinct from Plot 461, which is in a different phase and occupied by a different person.

p. 2
02

Who is the proper allottee of the suit land

Holding

The plaintiff is the proper allottee; there was no double allocation and the defendant's plot exists elsewhere in Phase 1

Reasoning

Evidence from PW2 and PW3 established that the plaintiff was allotted Plot 1169 and that the defendant's father's plot, No. 461, exists in Phase 1 and is occupied by a different person. The defendant produced no expert evidence to demonstrate which plot he occupied, and there was no evidence of double allocation. The plaintiff therefore proved his case on a balance of probabilities.

p. 2

Legal principles established

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  • Unshaken expert evidence of land officials on allocation records, uncontroverted by the defendant, suffices to establish the lawful allottee of a plot in a settlement scheme

Court orders

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  1. 1.An order of declaration, declaring that the Plaintiff is the lawful allottee of Plot No.1169 Kitalale Settlement Scheme, Phase III
  2. 2.An order that the defendant shall vacate and remove his belongings at his own expense from the Plot No.1169 Kitalale Settlement Scheme, Phase III within 90 days of the service of this order failure to which he shall be evicted forcibly therefrom
  3. 3.An order of a permanent injunction restraining the defendant from trespassing on, entering, wasting or interfering with Plot No. 1169 Kitalale Settlement Scheme, Phase III
  4. 4.An order that the defendant shall bear the costs of this suit
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land

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, "John Kibet Bii v Martin Kironget Mogoi [2018] KEELC 1382 (KLR)", Case Analysis (2018). Land Case No. 6 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1382/eng@2018-09-24

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