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ELCDismissedKitale ELC Suit of 2000 (Plaint dated 30/10/2000, amended 22/7/2003)· [2019] KEELC 108 (KLR)

Stephen Nyapara & 2 others v Provincial Director of Settlement & 3 others [2019] KEELC 108 (KLR)

Environment and Land Court
11 December 2019
MNMwangi Njoroge
2,585 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kitale dismissed 35 squatters' land claim because their allotment letters were not issued through the proper government procedure.

What this practically means

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Executive summary

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The 35 plaintiffs, claiming to be squatters issued with letters of allotment in 1998 over 168 acres of LR No. 2070/R Kitalale Settlement Scheme, Trans-Nzoia, sued the Attorney General and three other State defendants, and later 36 additional defendants enjoined by consent in 2002, seeking a declaration that they were bona fide allottees entitled to remain on the land, a temporary injunction against re-allocation, demolition, trespass and eviction, costs and interest. The defendants denied the plaintiffs' entitlement, raised procedural objections under the Government Proceedings Act and Civil Procedure Rules, and asserted that the additional defendants were the lawful allottees. At trial, PW1 Stephen Nyapara produced allotment letters purportedly signed by S.K. Mwaita, Provincial Land Adjudication Officer, and testified that the plaintiffs were evicted and their houses demolished in 2002 despite status quo and consent orders. DW1, a Land Adjudication and Settlement Officer, described the statutory allocation procedure centred on the Director of Land Adjudication and Settlement, testified that Kitalale is undegazetted forest land, that Provincial Administration letters were cancelled in 1999, and that only holders of genuine letters who passed vetting received new allotments. She doubted the authenticity of the plaintiffs' letters and showed the 1st plaintiff had already been allocated land elsewhere. The court found the letters did not emanate from the Director's office, the proper procedure was not followed, the plaintiffs failed to controvert DW1's evidence, and current occupiers were not enjoined. The suit was dismissed with no orders as to costs on 11 December 2019.

Key legal issues

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01

Whether the plaintiffs are bona fide allottees of the suit land

Holding

They are not; their letters of allotment did not emanate from the Director of Land Adjudication and Settlement and the proper allocation procedure was not followed

Reasoning

DW1, a Land Adjudication and Settlement Officer, described the proper vetting and allocation procedure and stated the plaintiffs' letters lacked validity features and did not originate from the Director's office. No plaintiff controverted this evidence. The 1st plaintiff had already been allocated Plot No. 484 elsewhere in the scheme, casting doubt on the rest. Even if the letters were genuine, the land is occupied by persons not enjoined to the suit.

p. 3
02

Whether the suits orders can safely issue against persons in occupation not enjoined

Holding

No; it would not be safe to grant the orders sought

Reasoning

The court noted that other verified allottees occupied the land but had not been joined as parties, so orders affecting the land could not issue against them. The pleadings also never amended to reflect the 36 defendants enjoined by consent in 2002, but the decisive point was the non-joinder of the current occupiers and failure of proof.

p. 5

Legal principles established

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  • The proper procedure for allocation of land in a government settlement scheme must be strictly adhered to, and letters of allotment issued otherwise than by the Director of Land Adjudication and Settlement are of doubtful validity
  • A plaintiff must establish his claim on a balance of probabilities; failure to controvert unchallenged official evidence is fatal

Court orders

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  1. 1.The plaintiffs' suit is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Government Proceedings ActSections 12, 13, 13(A) and 16
  • Civil Procedure RulesOrder 39
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land in LR No. 2070/R Kitalale Settlement Scheme, Trans-Nzoia

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, "Stephen Nyapara & 2 others v Provincial Director of Settlement & 3 others [2019] KEELC 108 (KLR)", Case Analysis (2019). Kitale ELC Suit of 2000 (Plaint dated 30/10/2000, amended 22/7/2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/108/eng@2019-12-11

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