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ELCDismissedNot stated in the judgment as provided· [2018] KEELC 4090 (KLR)

Milkah Songol v Stanley Sumukwo [2018] KEELC 4090 (KLR)

High Court of Kenya
15 February 2018
2,733 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a landowner's suit because she re-litigated a settled land sale, failed to prove her damages, and misread Land Control Board consent rules.

What this practically means

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Executive summary

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The plaintiff, administrator of the estate of Chepsongol Chepkeitany, sued the defendant by plaint dated 23rd October 2015 seeking orders that the sale agreement of 14th January 2008 over a 25ft x 50ft portion of land parcel BARINGO/KAPROPITA/859 was frustrated by operation of law or alternatively void ab initio; declarations that the defendant's encroachment and demolition of the estate's shops and his construction of new shops were illegal; eviction; demolition of his structures; a permanent injunction; and special damages of Kshs. 418,800/ for demolished shops and Kshs. 10,000/ per month loss of income. The defendant asserted he bought the portion from the plaintiff's late father, paid Kshs. 40,000/, took possession and developed it, and that prior litigation (Kabarnet SRMCC No. 41 of 2008, Nakuru HCCC No. 198 of 2009 and Kabarnet PMCC No. 3 of 2015) had already affirmed his position, the first suit having been dismissed after a site visit found no encroachment. The court framed four issues: the extent and location of what was sold, frustration, voidness for breach of statutory provision, and entitlement to the reliefs sought. It held the plaintiff failed to prove her case on a balance of probabilities: the land was a town plot so Land Control Board consent was unnecessary; the Town Administrator's letter was procured at the plaintiff's instance; the plaintiff's survey was conducted without the defendant; special damages were not specifically proved; and no law frustrated the agreement. Noting the history of serial suits over the same subject matter, the court dismissed the suit with costs to the defendant, holding that litigation must come to an end and aggrieved parties should appeal rather than file similar cases in different courts.

Key legal issues

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01

Whether the sale agreement of 14th January 2008 was frustrated by operation of law

Holding

The claim of frustration failed; the plaintiff did not identify any law that frustrated the agreement, and prior litigation affirmed the sale

Reasoning

The court found it was not disputed that the defendant purchased a portion of the land and that previous suits (Kabarnet SRMCC No. 41 of 2008, Nakuru HCCC No. 198 of 2009 and Kabarnet PMCC No. 3 of 2015) affirmed the defendant's position. No legal impediment was shown; the Town Administrator letter was targeted at the plaintiff and not a general zoning instrument. The frustration claim was therefore unsupported.

p. 4
02

Whether the agreement was void ab initio for breach of a statutory provision (absence of Land Control Board consent)

Holding

The agreement was not void; LCB consent applies only to agricultural land and the suit land is a town plot

Reasoning

The plaintiff argued that no LCB consent was obtained and the plot was too small to be curved out under planning rules. The court held the consent requirement applies only to agricultural land, not the town plot in question, so no statutory breach arose. The Town Administrator letter was found to be procured at the plaintiff's instance rather than a general public notice.

p. 4
03

Whether the defendant encroached on land not sold to him and demolished the estate's shops

Holding

No encroachment was proved; a prior judgment after a site visit established the defendant built only on his purchased portion

Reasoning

The court relied on the judgment in Kabarnet Civil Suit No. 41 of 2008, in which the court visited the scene and observed that the defendant's plot was distinct with access and that he had not trespassed on the plaintiff's portion. The plaintiff's surveyor's survey was conducted without involving the defendant, undermining its evidential value. The defendant also admitted in cross-examination he did not buy the land where the kiosks stood, but the plaintiff still failed to prove the demolition claim.

p. 3
04

Whether the plaintiff proved special damages for demolition and loss of rental income

Holding

Both heads of special damages failed for want of specific proof

Reasoning

Special damages must be specifically pleaded and proved. Bills of quantities alone cannot establish the value of the demolished structures, and no receipts, bank statement or rent book proved the alleged Kshs. 10,000/ monthly income. The plaintiff admitted on cross-examination she produced no receipts of receiving the rent.

p. 4
05

Whether the suit was an abuse of court process given prior litigation over the same subject matter

Holding

The court deprecated serial suits; an aggrieved party should appeal rather than file similar cases in different courts

Reasoning

The suit was the latest in a long line of litigation by the plaintiff's family over the same sale: Kabarnet SRMCC No. 41 of 2008 (dismissed), Nakuru HCCC No. 198 of 2009 (dismissed for want of prosecution, never reinstated) and Kabarnet PMCC No. 3 of 2015 (dismissed with costs). The court held that litigation must end and multiplicity of suits cannot substitute for appeal.

p. 4

Legal principles established

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  • Special damages must be specifically pleaded and strictly proved with evidence beyond mere bills of quantities
  • Land Control Board consent is required only for agricultural land, not town plots
  • Litigation must come to an end; a party aggrieved by a ruling has a right of appeal, not the option of filing similar cases in different courts

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Costs of the suit awarded to the defendant

Authorities

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Legislation

  • Physical Planning Rulessubdivision/minimum plot size requirements
Jurisdiction invoked
Original civil jurisdiction of the High Court over the land dispute (plaint dated 23rd October 2015)

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, "Milkah Songol v Stanley Sumukwo [2018] KEELC 4090 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4090/eng@2018-02-15

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