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ELCPartially AllowedELC Petition No. 90 of 2017 (Formerly Judicial Review No. 20 of 2010 and Formerly Nairobi ELC Case No. 822 of 2012)· [2019] KEELC 836 (KLR)

Peter Butali & 2 others v District Land Registrar Thika District & 4 others [2019] KEELC 836 (KLR)

Environment and Land Court
8 November 2019
7,471 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

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The Thika Environment and Land Court ruled that the Kenyan government cannot mark or demolish private property without notice and proof the land was unlawfully acquired.

What this practically means

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Executive summary

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Thirty-six petitioners, registered proprietors of subdivisions of L.R 12840 (I.R 35361) purchased from the 5th Respondent, View Land Investments Limited, petitioned against the District Land Registrar, Chief Registrar of Titles, Permanent Secretary Ministry of Roads and the Attorney General, alleging that Ministry of Roads officers unlawfully marked their properties for demolition and placed beacons thereon in July 2010 without notice, contravening their rights under the former Constitution. The 1st to 4th Respondents contended the suit land formed part of L.R 7705/2, acquired by the Government in the 1970s for the Nairobi–Thika Highway and thus held by overriding public interest, with the Petitioners' titles fraudulently obtained. The 5th Respondent maintained it purchased the land lawfully and transferred clean titles. The court framed five issues and found that the suit land is a distinct parcel from the acquired L.R 7705/2, since no evidence proved the two parcels were the same. The root of the Petitioners' titles was traceable through a documented chain from the Grant to Gatumaini Farm Co. Ltd, subdivision approvals by the Commissioner of Lands, and registered certificates of leases. Allegations of fraud were unproved, the Respondents failing to discharge the burden under Sections 107 and 109 of the Evidence Act. The marking of premises without the thirty-day notice required by Section 49(1) of the Kenya Roads Act 2007, and absent any due-process finding of unlawful acquisition, was irregular and unlawful, amounting to trespass. The Petition was allowed entirely: declarations issued, vacant possession ordered against the 3rd Respondent, and each Petitioner awarded nominal general damages of Kshs. 100,000/= for trespass, the Petitioners having adduced no evidence of property value. The 5th Respondent bore no liability and was awarded costs, payable by the 1st to 4th Respondents together with the Petitioners' costs.

Key legal issues

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01

Whether the suit land (L.R 12840, I.R 35361) was part of the land acquired by the Government for the Nairobi–Thika Highway

Holding

The suit land is a distinct parcel from L.R 7705/2 (I.R 7531) which was acquired; no evidence proved the two parcels were one and the same, so the suit land was never acquired by the Government.

Reasoning

The documents showed L.R 7705/2 bore I.R 7531 and was the parcel allocated to Colorado Estates and later acquired, while the suit land bore L.R 12840 and I.R 35361. The Survey Map produced by the 1st to 4th Respondents showed the parcels as separate. The Chief Engineer's letter of 28th April 2009 confirmed the resultant subdivisions did not encroach on any other parcel. No document proved the parcels were identical.

p. 5
02

Whether the Petitioners hold good and indefeasible title

Holding

The root of the Petitioners' titles is traceable through documented allocations, subdivision approvals by the Commissioner of Lands, and registered certificates of leases; their titles are absolute and indefeasible.

Reasoning

The chain ran from the Grant to Gatumaini Farm Co. Ltd (6th April 1981), through Gathecha Family Co. Ltd, to the 5th Respondent, who obtained subdivision approvals in 1998–1999 before selling to the Petitioners. DW2 acknowledged the process was well documented with no complaints. Government approving institutions had sanctioned the developments and could not turn around to allege the plots were on public utility land.

p. 6
03

Whether the Petitioners fraudulently acquired the suit property

Holding

No fraud was proved; the 1st to 4th Respondents failed to discharge their burden under Sections 107 and 109 of the Evidence Act, and the allegations remain mere allegations.

Reasoning

Fraud must be strictly pleaded and proved; no evidence of the alleged fraud was tabled. DW2 of the National Land Commission confirmed the records showed no misrepresentation and that due process was followed. The Government, as custodian of land documents, cannot claim it was misled by citizens. No land official testified that the certificates of leases were issued irregularly.

p. 6
04

Whether the Ministry of Roads officers' marking of premises and placement of beacons was unlawful

Holding

The actions were irregular and unlawful: no notice under Section 49(1) of the Kenya Roads Act 2007 was issued, and no due-process finding of unlawful acquisition existed to displace Article 40 protection.

Reasoning

Section 49(1) of the Kenya Roads Act 2007 requires a written notice of at least thirty days before removal of unauthorized structures; no evidence of such notice existed. Under Article 40, property rights are lost only where a court or legally established institution finds the property was unlawfully acquired, and no such finding existed against the Petitioners.

p. 7
05

Whether the Petitioners are entitled to damages for trespass

Holding

The 1st to 4th Respondents were trespassers; damages are awardable for trespass without proof of specific loss, but in the absence of evidence of land value, each Petitioner receives nominal general damages of Kshs. 100,000/=.

Reasoning

Citing Park Towers Ltd v John Mithamo Njika, trespass need not be accompanied by proof of specific damage to attract damages. However, following Philip Aluchio v Crispinus Ngayo, the measure of damages is the difference in property value or cost of restoration; the Petitioners led no evidence of value before and after the trespass, so only nominal damages could be assessed.

p. 8

Legal principles established

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  • The State must follow due process of law before declaring or acting on a claim that property was unlawfully acquired; until such a finding by a legally recognized institution, registered proprietors are entitled to constitutional protection of property.
  • Allegations of fraud must be strictly pleaded and proved to a standard above a mere balance of probabilities.

Court orders

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  1. 1.Judgment entered for the Petitioners against the 1st to 4th Respondents in terms of prayers (a), (b), (c) and (d) of the Petition.
  2. 2.Declaration that the 3rd Respondent's encroachment and trespass on the Petitioners' properties contravened their fundamental rights, with an inquiry into damages, restitution, and eviction of the 3rd Respondent.
  3. 3.Order for delivery of vacant possession by the 3rd Respondent with directions for enforcement.
  4. 4.Each of the Petitioners awarded a nominal Kshs. 100,000/= as general damages for trespass.
  5. 5.No liability apportioned to the 5th Respondent.
  6. 6.Costs of the Petition awarded to the Petitioners and the 5th Respondent, to be borne by the 1st to 4th Respondents.

Authorities

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Legislation

  • Constitution of Kenya (former)Sections 70, 72, 74, 75, 76, 77 and 84
  • Constitution of Kenya, 2010Article 40(2)(a), 40(3), 40(6)
  • Registered Land Act Cap 300 (repealed)General provisions
  • Registration of Titles Act (repealed)Section 23(1)
  • Land Registration Act 2012Section 26(1)(a) & (b)
  • Evidence ActSections 107 and 109
  • Kenya Roads Act 2007Section 49(1)

Cases cited (6)

  • Urmilla W/O Mahendra Shah v Barclays Bank International Ltd & Another
    (1979) KLR 76
  • Davy v Garrette
    (1878) 7 Ch. 473
  • The National Land Commission & Others Exparte Vivo Energy Kenya Ltd
    (2015) eKLR
  • Isaac Gathungu Wanjohi & Another v Attorney General & 6 Others
    (2012) eKLR
  • Park Towers Limited v John Mithamo Njika & 7 Others
    (2014) eKLR
  • Philip Aluchio v Crispinus Ngayo
    [2014] eKLR
Jurisdiction invoked
Petition under Section 84 of the former Constitution of Kenya concerning contravention of fundamental rights under Sections 70, 72, 74, 75, 76 and 77 and provisions of the Registered Land Act Cap 300 (repealed)

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, "Peter Butali & 2 others v District Land Registrar Thika District & 4 others [2019] KEELC 836 (KLR)", Case Analysis (2019). ELC Petition No. 90 of 2017 (Formerly Judicial Review No. 20 of 2010 and Formerly Nairobi ELC Case No. 822 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/836/eng@2019-11-08

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