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ELCPartially AllowedELC No. 355 of 2011· [2018] KEELC 3880 (KLR)

Joseph Watene Maina v Mariru Park Limited & another [2018] KEELC 3880 (KLR)

Environment and Land Court
20 February 2018
KBK. BOR
929 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 Plaintiff sued for a declaration that the transfer of plot number 115 (proposed new plot 178) on L.R. No. 7659/8 Kasarani by the 1st Defendant, Mariru Park Ltd, to the 2nd Defendant was unlawful and void, asserting that the plot belonged to him, and sought eviction of the 2nd Defendant or, in the alternative, general damages from the 1st Defendant. The Plaintiff had purchased the plot in 1996 from Lucy Waithera Kimani, the original allottee from the 1st Defendant, for Kshs. 50,000 and paid transfer fees of Kshs. 2,000 to the 1st Defendant in July 1996. While abroad for studies between 2003 and 2010, he returned to find the 2nd Defendant constructing on the plot. The Plaintiff testified and called Lucy Kimani, who confirmed the sale and identification of the plot. He produced the sale agreement, transfer fee receipt, receipts issued to Lucy Kimani in 1990 bearing plot number 115, the plot certificate, and his passports. The 1st Defendant filed a defence denying the claim and contending the Plaintiff should trace his plot elsewhere, but did not attend the hearing; its manager's witness statement admitted the company records were scanty. The court found the Plaintiff had proved ownership on a balance of probabilities, held that the 1st Defendant ought not to have resold the plot, and rejected the suggestion that the Plaintiff trace his plot elsewhere. The court issued an order of eviction against the 2nd Defendant and awarded the Plaintiff costs against both Defendants.

Key legal issues

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01

Proof of ownership of the suit plot

Holding

The Plaintiff proved on a balance of probabilities that he owns plot number 115, having purchased it from the original allottee Lucy Waithera Kimani and paid transfer fees to the 1st Defendant

Reasoning

The Plaintiff produced the 1996 sale agreement, receipt for transfer fees of Kshs. 2,000 paid on 1/7/1996, receipts issued by the 1st Defendant to Lucy Kimani in 1990 bearing plot number 115, and the plot certificate. Lucy Kimani testified and confirmed the sale. The documentary trail and witness testimony satisfied the balance of probabilities despite the 1st Defendant's scanty records.

p. 2
02

Double allocation by the 1st Defendant

Holding

The 1st Defendant acted wrongfully by allocating the same plot to the 2nd Defendant after it had been sold to Lucy Kimani and transferred to the Plaintiff

Reasoning

Having originally allocated the plot to Lucy Kimani, who sold to the Plaintiff, the 1st Defendant ought not to have sold the same plot again to the 2nd Defendant. The company, being responsible for subdivision and allocation, could not shift responsibility by asking the Plaintiff to trace his plot elsewhere.

Legal principles established

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  • A vendor company that subdivided and allocated plots cannot resell an already-allotted plot and direct the purchaser to trace his plot elsewhere

Court orders

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  1. 1.A declaration implied by the finding that the Plaintiff is the owner of plot number 115 on L.R. No. 7659 Kasarani
  2. 2.An order of eviction issued against the 2nd Defendant
  3. 3.Costs of the suit awarded to the Plaintiff against both Defendants
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (ELC No. 355 of 2011)

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, "Joseph Watene Maina v Mariru Park Limited & another [2018] KEELC 3880 (KLR)", Case Analysis (2018). ELC No. 355 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3880/eng@2018-02-20

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