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ELCPartially AllowedE.L.C. Case No. 773 of 2012· [2018] KEELC 3877 (KLR)

Margaret Wairimu Mucheru Karuri & another v Christopher Mugambi & another [2018] KEELC 3877 (KLR)

Environment and Land Court
13 February 2018
1,381 words in judgment
View original judgmentRead on Kenya Law Watch case
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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 Plaintiffs, sisters and registered proprietors of L.R. No. Nairobi/Block 72/2934 in Southlands, Langata, sued for a permanent injunction, general damages for trespass and nuisance, and costs, after the Defendants allegedly removed their fence, erected iron-sheet structures, and harassed their guards. The Defendants admitted the Plaintiffs' registration but asserted the Plaintiffs held the land in trust for Mugumoini residents, that it was irregularly and illegally allocated public utility (parking) land, listed in the Ndung'u Report for revocation, and obtained by fraud and forgery. The 1st Defendant conceded the Plaintiffs were registered owners and that they had permitted his use of the land until 2008; the 2nd Defendant admitted building and renting out kiosks on the land. The Defendants did not produce the Ndung'u Report to substantiate the alleged listing. The court held that the burden of proving the land was public utility land fell on the Defendants and was not discharged; that under Article 68(c)(v) and the National Land Commission Act, review of grants of public land is the mandate of the National Land Commission, and findings of unlawful acquisition may be made only by legally mandated bodies such as the NLC or the EACC, not private parties; and that even if the land were public utility land, the Defendants could not lawfully erect business structures on it. The court found the Plaintiffs had proved their case on a balance of probabilities, while leaving statutory bodies free to inquire into the propriety of the title. The court granted a permanent injunction, awarded general damages of Kshs. 100,000 against the 2nd Defendant only, and awarded the Plaintiffs the costs of the suit.

Key legal issues

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01

Whether the Defendants proved that the Suit Property was public utility land illegally allocated to the Plaintiffs

Holding

The Defendants failed to prove the land was public utility land; the Plaintiffs, as registered proprietors, proved their case on a balance of probabilities, though statutory bodies remain free to inquire into the propriety of the title

Reasoning

The Defendants alleged the plot was public parking land listed in the Ndung'u Report but did not produce that report to confirm the listing. The burden of proving the land was public utility land fell on them and was not discharged. The court noted the National Land Commission was the proper body to review grants of public land, and that the finding that the Defendants sought could only be made by mandated entities.

p. 2
02

Whether private persons may unilaterally declare a title unlawfully acquired and occupy land on that basis

Holding

No - only bodies mandated by law may make such a finding, and the constitutional protection of property under Article 40 excludes only property found unlawfully acquired by such bodies

Reasoning

Article 68(c)(v) tasked Parliament to enact legislation to review grants of public land, which resulted in the National Land Commission Act mandating the NLC to review grants within five years of May 2012. The Defendants, as private parties, had no mandate to determine that the Plaintiffs' title was unlawfully acquired; that function lies with the NLC or the Ethics and Anti-Corruption Commission.

p. 2
03

Whether the Plaintiffs were entitled to a permanent injunction and damages for trespass

Holding

Permanent injunction granted; general damages of Kshs. 100,000 awarded against the 2nd Defendant only, as the 1st Defendant had moved out of the property

Reasoning

The Plaintiffs, as registered owners who bought the property in 2004 after due diligence, proved trespass by the Defendants who removed the fence and erected structures. The 1st Defendant had been moved out by the Chief and Council demolition, so liability in damages attached to the 2nd Defendant, who admitted building kiosks and carrying on business on the land.

p. 2

Legal principles established

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  • Only bodies mandated by law, such as the National Land Commission and the Ethics and Anti-Corruption Commission, may inquire into and determine that land was unlawfully acquired; private parties cannot make such a finding
  • Even if land were public utility land, private individuals are not entitled to erect business structures on it
  • The party alleging that land is public utility land bears the onus of proving it, on a balance of probabilities

Court orders

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  1. 1.Permanent injunction restraining the Defendants from entering onto or interfering with the Plaintiffs' use and occupation of the Suit Property
  2. 2.General damages of Kshs. 100,000 awarded against the 2nd Defendant for trespass
  3. 3.Costs of the suit awarded to the Plaintiffs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 68(c)(v)
  • Constitution of Kenya, 2010Article 40(6)
  • National Land Commission Actreview of grants of public land within five years of May 2012
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land; Article 40 and Article 68(c)(v) of the Constitution considered

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, "Margaret Wairimu Mucheru Karuri & another v Christopher Mugambi & another [2018] KEELC 3877 (KLR)", Case Analysis (2018). E.L.C. Case No. 773 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3877/eng@2018-02-13

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