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ELCPartially AllowedCivil Appeal No. 206 of 2012· [2018] KEELC 2894 (KLR)

Alex Kihonge Mukoma v Joseph Ngugi Mburu & 2 others [2018] KEELC 2894 (KLR)

Environment and Land Court of Kenya
3 May 2018
MSMunyao Sila
4,428 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The appellant, as plaintiff before the magistrate's court, claimed that the respondents encroached into Plots Nos. 136 and 137 in Kangui Township, of which he held allotment/licence documents and later leases, and sought eviction, a permanent injunction, general damages for trespass, mesne profits, costs and interest. The trial magistrate dismissed the suit, holding that the appellant had not proved registration and that the respondents' allotment letters, which converted their TOLs into 99-year leases, gave them superior rights. On appeal, the court admitted additional evidence (leases, certificates of lease and the Registry Index Map prepared after the 2014 survey of Kangui Township) under section 78 of the Civil Procedure Act. The court held that the 1965 approved plan recognized the appellant's plots, that the respondents' K-plots were created by a new PDP which was never gazetted or subjected to the objection process required by the Physical Planning Act, and that the new plan could not lawfully superimpose plots on an existing approved plan. The surveyor's evidence established encroachment of about 8 metres into Plot 136 by Plots K17 to K20, occupied by the 2nd and 3rd respondents. The 1st respondent's Plot K-24 did not abut the appellant's plots, so no encroachment by him was found. The appeal succeeded in part: a declaration of encroachment was issued against the 2nd and 3rd respondents, with vacant possession within 30 days, eviction in default, and a permanent injunction. Mesne profits, general damages and costs were refused, the confusion having been caused by Government authorities; each party was ordered to bear its own costs of the appeal and the trial.

Key legal issues

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01

Whether allotment letters pegged on an unapproved PDP confer superior rights to land over an existing occupation under an approved 1965 plan

Holding

They do not; the trial magistrate erred in preferring the respondents' allotment letters, which were pegged on a plan with no evidence of proper approval under the Physical Planning Act

Reasoning

The appellant's Plots 136 and 137 were recognized in the 1965 approved plan and his TOLs were on course for conversion to leases, which he later obtained. The respondents' K-plots were plotted on a new PDP that conflicted with the 1965 plan and there was no evidence of gazettement or of the objection process under sections 19 and 21 of the Physical Planning Act. The respondents also lacked beacon certificates, so the new plan could not lawfully superimpose plots on existing ones.

p. 4
02

Whether the 1st respondent encroached into the appellant's plots

Holding

No; the 1st respondent occupies Plot K-24 which does not abut the appellant's plots, so no encroachment by him was established

Reasoning

The encroachment of about 8 metres into Plot 136 was caused by Plots K17 to K20, occupied by the 2nd and 3rd respondents. Plot K-24 occupied by the 1st respondent does not abut either of the appellant's plots, so the claim against him failed even though the appeal otherwise succeeded.

p. 4
03

Whether the additional evidence produced on appeal (leases, certificates of lease, official searches and the RIM) altered the outcome

Holding

Yes; the RIM prepared after the 2014 survey recognizes the appellant's plots and shows the respondents' K-plots do not exist on it, confirming the encroachment

Reasoning

The court had allowed the application under section 78 of the Civil Procedure Act to adduce additional evidence. The surveyor testified that the K-plots were physical planning numbers before survey, that Kangui Township was officially surveyed in 2014 and the RIM prepared, and that the K-plots do not appear on the RIM, which he described as superior to the PDP.

p. 4

Legal principles established

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  • A first appellate court must independently assess the pleadings and evidence and determine whether the trial court reached a correct finding.
  • A new plan cannot lawfully superimpose plots on an already existing approved plan unless the earlier PDP and survey plan is first superseded as required by law.
  • A regional physical development plan must comply with the objection, notification and gazettement procedures in the Physical Planning Act before taking effect.
  • Allottees of unsurveyed plots without beacon certificates cannot assert that they are not on another person's land.

Court orders

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  1. 1.Declaration that the 2nd and 3rd respondents, as occupants of Plots K-17 to K-20, have encroached by about 8 meters into the appellant's Plots No. 136 and 137 at Kangui Township, now registered as Nyandarua/Kangui Township/136 and 137
  2. 2.Order requiring the 2nd and 3rd respondents to give vacant possession within 30 days of the judgment, failing which an order of eviction be issued and executed at their cost
  3. 3.Permanent injunction restraining the 2nd and 3rd respondents from entering, occupying, building on or making use of the appellant's Plots Nos. 136 and 137
  4. 4.No award for mesne profits or general damages for trespass
  5. 5.Each party to bear its own costs of the appeal and of the trial

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 78
  • Physical Planning ActSection 2
  • Physical Planning ActSection 19
  • Physical Planning ActSection 21
On appeal from
Senior Principal Magistrate's Court, Nyahururu
Nyahururu PMCC No. 196 of 2001
Jurisdiction invoked
First appellate jurisdiction under Section 78 of the Civil Procedure Act, Cap 21 (leave to adduce additional evidence) over an appeal from the Magistrate's Court

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, "Alex Kihonge Mukoma v Joseph Ngugi Mburu & 2 others [2018] KEELC 2894 (KLR)", Case Analysis (2018). Civil Appeal No. 206 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2894/eng@2018-05-03

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