Mayfair Holding Ltd v Municipal Council of Kisumu [2018] KEELC 3063 (KLR)
The bottom line
#The Kisumu Environment and Land Court confirmed a private landowner's title and ordered the County Government to remove obstructing structures and cancel illegal business licenses.
What this practically means
#Executive summary
#Key legal issues
#Ownership of the suit land
The Plaintiff, as registered proprietor since 1st November 1993, is the absolute and indefeasible owner of the leasehold interest
The copy of the certificate of lease and official search produced by PW1 confirmed registration on 1st November 1993. The Defendant did not contest or impugn the title and called no evidence. Sections 24, 25 and 26(1) of the Land Registration Act confer the rights and privileges of a registered proprietor on the Plaintiff.
Effect of the Defendant's failure to adduce evidence
The Plaintiff's case that the Defendant erected an obstructing structure and licensed businesses on the suit land remained uncontroverted because the Defendant closed its case without calling evidence
The Defendant filed a statement of defence but tendered no oral or documentary evidence. Following Trust Bank Limited vs Paramount Universal Bank Limited & 2 Others, unsubstantiated pleadings are mere statements of fact, so the evidence given by PW1 stands unchallenged and the Defendant's averments cannot displace the Plaintiff's claim.
Public duty of the Defendant regarding access and licensing
The Defendant owes the Plaintiff a public duty to remove the obstructing structure and not to license businesses on the Plaintiff's plot without the Plaintiff's authority
The Defendant approved the Plaintiff's building plans but then retained a structure obstructing access to the plot and licensed businesses on the Plaintiff's land, contrary to its statutory function under Section 29(a) of the Physical Planning Act to prohibit or control the use and development of land in the interests of proper and orderly development. This made development of the plot difficult if not impossible.
Legal principles established
#- Where a party fails to call evidence in support of its case, its pleadings remain mere statements of fact and the opposing party's evidence stands uncontroverted
- A registered proprietor's title is absolute and indefeasible under Sections 24, 25 and 26(1) of the Land Registration Act where not impugned
Court orders
#- 1.The parties to engage the County Land Registrar and Surveyor to visit Kisumu Municipality/Block 8/297 and confirm its ground boundaries with neighbouring parcels and public roads of access, to determine which of the seven businesses are on the suit land and which structures on the Kibiki road reserve obstruct access, the report to be filed in court within 60 days
- 2.Upon the report being filed, the Defendant to remove or demolish the structures erected along Kibiki road found to be obstructing the Plaintiff's access within 90 days from the date of the report
- 3.The Defendant to recall and cancel the licenses issued to any or all of the seven businesses listed under paragraph 11 of the plaint found to be illegally situated on the suit land within 90 days from the date of the report
- 4.Permanent injunction in terms of prayer (a) of the plaint granted
- 5.The Defendant to pay the Plaintiff's costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land parcels and claims relating to land use and planning
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mayfair Holdings Limited v Omumbo & another[2023] KEELC 20607 (KLR)12 Oct 2023applied
Cite this brief
#Cite this brief
Caselaw, "Mayfair Holding Ltd v Municipal Council of Kisumu [2018] KEELC 3063 (KLR)", Case Analysis (2018). Kisumu EL Civil Suit (Kisumu Municipality/Block 8/297). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3063/eng@2018-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.