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ELCPartially AllowedELC Appeal No. 81 of 2007· [2018] KEELC 1874 (KLR)

Richard Nkinyangi Kubai v Meru County Government & another [2018] KEELC 1874 (KLR)

Environment and Land Court
6 July 2018
ECE. C. Cherono
1,475 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that a county government cannot cancel your plot allocation without giving you a hearing first.

What this practically means

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Executive summary

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The plaintiff sued the Meru County Government (substituted for the defunct County Council of Nyambene) and the 2nd defendant, complaining that by a letter dated 18/7/2007 the then County Council of Nyambene unilaterally and without a hearing purported to withdraw his allocation of plot No. 46 at Kaelo market, allocated to him by minute of the town planning and markets committee. He sought withdrawal of the letter, a declaration that the plot belonged to him, a permanent injunction, general damages for loss of business, and costs. The plaintiff testified that after he declined a councillor's political pressure, complaints led to the withdrawal letter; his wife also testified. The defendants did not adduce any evidence. The court found the plaintiff's testimony and documents unchallenged and relied on Linus Ng'ang'a Kiongo v Town Council of Kikuyu on the consequences of a party failing to adduce evidence. It held that the council had approved the allocation, allowed construction, and issued licences, and that it was against natural justice to condemn a person without a hearing; the 1st defendant could not unilaterally cancel the allocation without reasons. Judgment was entered for the plaintiff: a declaration that he is the rightful allottee of plot No. 46, a declaration that the letter of 18/7/2007 is null and void, and each party to bear their own costs. Claims for general damages and a permanent injunction were not granted in the final orders.

Key legal issues

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01

Effect of failure to adduce evidence by the defence

Holding

The plaintiff's testimony and documents remain unchallenged where the defendant tenders no evidence, and the claim is proved on the required standard

Reasoning

The defendants did not tender any evidence in defence. Relying on Linus Ng'ang'a Kiongo v Town Council of Kikuyu (2012) eKLR, which in turn quoted Mote Knitwear Limited v Gopitex Knitwear Limited, the court held that an unchallenged plaintiff's case stands, and the defence and any counterclaim must fail. The court fully associated itself with that reasoning and found the plaintiff's case proved on the required standard.

p. 2
02

Natural justice in cancellation of plot allocation

Holding

A county government cannot unilaterally cancel a lawful allocation of a plot without giving the allottee a hearing and reasons

Reasoning

The County Council of Nyambene approved the plaintiff's application for a plot at Kaelo market by minute, allowed him to construct and operate a business, and issued him licences. The letters of 2/7/2007 and 18/7/2007 purported to investigate complaints and withdraw the allocation without disclosing the complaint or giving the plaintiff a hearing. The court held that cancelling such a contract without a hearing or reasons offended the rules of natural justice and was null and void.

p. 2

Legal principles established

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  • It is against the rules of natural justice to condemn a person without a hearing; a public body cannot unilaterally cancel an allocation of a plot without giving the allottee a hearing and reasons
  • Where a defendant fails to adduce evidence, the plaintiff's unchallenged testimony and documents stand unchallenged

Court orders

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  1. 1.A declaration that the plaintiff is the rightful allotee of plot No. 46 situated at Kaelo market as approved by the defunct County Council of Nyambene pursuant to their minute extract dated 12/1/2007
  2. 2.The 1st defendant's letter issued by the then defunct County Council of Nyambene dated 18/7/2007 is declared null and void
  3. 3.Each party to bear his own costs of this suit

Authorities

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Cases cited (3)

  • Linus Ng'ang'a Kiongo v Town Council of Kikuyu
    (2012) eKLR
  • Mote Knitwear Limited v Gopitex Knitwear Limited
    Milimani HCCC No 384 of 2002
  • Autha Singh Bahra & Another v Raju Govindju
    HCCC No 548 of 1998
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to allocation of plots by a defunct county council and its successor county government (not expressly stated in the judgment)

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, "Richard Nkinyangi Kubai v Meru County Government & another [2018] KEELC 1874 (KLR)", Case Analysis (2018). ELC Appeal No. 81 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1874/eng@2018-07-06

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