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ELCPartially AllowedKisii Environment and Land Court Suit (Plot No. 27 Nyakoe Market)· [2019] KEELC 1214 (KLR)

Peter Wills O. Simba & another v Maria Gesare Sagwe & another [2019] KEELC 1214 (KLR)

Environment and Land Court
23 October 2019
2,638 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiffs sued over Plot No. 27 Nyakoe Market, which they claimed was allocated to them by Gusii County Council on 20th February 1968 under Committee Minute No. 12/68 (B) (16), evidenced by a plot card issued on 21st February 1979. In May 2012 they discovered the plot had been subdivided into Plots 27A and 27B and transferred to the defendants without their knowledge, consent or signature. The County Council investigated, summoned both parties (the defendants failed to attend), and resolved that the transaction was fraudulently done and the plot should revert to the original allottees. The 1st defendant claimed her late husband bought the plot from one Okiamba Nyakoe in 1968, but her sale agreement specified no plot number and no evidence showed the vendor owned any plot at the market. The 2nd defendant claimed allocation by the Council but had misplaced his documents. The court framed four issues and found on a balance of probabilities that the plaintiffs were the original allottees, that the application to subdivide was neither signed by the plaintiffs nor approved by the Council, and that the subdivision and transfer were irregular and null and void. The defendants were held to be trespassers. The court granted declarations of fraud and nullity, cancellation/rectification of the register, restoration of the original plot card, a permanent injunction, and general damages for trespass of Kshs. 100,000/= with interest, trespass being actionable per se. Costs were awarded to the plaintiffs.

Key legal issues

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01

Whether the plaintiffs were the lawful allottees of Plot No. 27 Nyakoe Market and whether the subdivision into Plots 27A and 27B was lawful

Holding

The plaintiffs were jointly allocated the plot vide Committee Minute No. 12/68 (B) (16) and issued a plot card; the subdivision was done without their signature, consent or approval and was null and void

Reasoning

The plaintiffs produced the plot card issued on 21st February 1979 and relied on the Committee Minute No. 12/68 (B) (16) allocating the plot. The County Council investigated and by letter and committee minutes found the subdivision had been procured fraudulently, as only the defendants signed the subdivision documents and the original allottees never appeared before the Town Planning Committee. The application to subdivide was neither signed by the plaintiffs nor approved by the Council.

p. 3
02

Whether the defendants had any proprietary interest over the suit plot

Holding

The defendants failed to demonstrate any legal proprietary interest; the sale agreement relied on by the 1st defendant made no reference to Plot No. 27 or any particular plot, and no evidence showed the vendor owned any plot at Nyakoe Market

Reasoning

The 1st defendant's late husband allegedly purchased the plot from Okiamba Nyakoe under an agreement dated 1st July 1968, but the agreement did not specify any plot number and there was no evidence the vendor owned any plot at Nyakoe Market. The Council records consistently showed the plot belonged to the plaintiffs, and the plot cards relied on by the defendants had been declared a nullity by the Council itself.

p. 3
03

Whether the defendants are trespassers and liable in damages

Holding

The defendants are in unlawful occupation and are trespassers liable to pay general damages of Kshs. 100,000/= to the plaintiffs

Reasoning

Having found the subdivision and transfer null and void, the defendants' occupation lacked legal foundation. Trespass being actionable per se, no proof of damage was necessary. The court was guided in quantum by the size, location and value of the property, noting it is a commercial plot within a fast growing suburb of Kisii Municipality, and awarded Kshs. 100,000/=.

p. 3

Legal principles established

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  • Trespass is actionable per se once proved and no proof of damage is necessary
  • A subdivision of land effected without the owner's signature or consent, and not approved by the Council as required, is a nullity

Court orders

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  1. 1.Declaration that the subdivision of the original suit plot and the transfer of Plot Numbers 27A and 27B Nyakoe Market in favour of the defendants was fraudulent, illegal, null and void
  2. 2.Cancellation and/or rectification of the register in respect of Plot Number 27A and 27B Nyakoe Market and restoration of the original plot card for Plot Number 27, Nyakoe Market
  3. 3.Permanent injunction restraining the defendants, their agents and/or servants from entering upon, building on, depositing materials, taking possession of, interfering with and/or dealing with Plot Number 27, Nyakoe Market
  4. 4.General damages for trespass of Kshs. 100,000/= to the plaintiffs with interest at court rates from the date of judgment until payment in full
  5. 5.Judgment entered against the defendants jointly and severally
  6. 6.Costs of the suit awarded to the plaintiffs
Jurisdiction invoked
Original civil suit on ownership of a market plot and trespass, determined on the pleadings and evidence

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Peter Wills O. Simba & another v Maria Gesare Sagwe & another [2019] KEELC 1214 (KLR)", Case Analysis (2019). Kisii Environment and Land Court Suit (Plot No. 27 Nyakoe Market). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1214/eng@2019-10-23

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