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ELCPartially AllowedELC Case No. 48 of 2017 (formerly H.C.C.C. No. 110 of 2005)· [2019] KEELC 1843 (KLR)

Lucas A.O.N Ochieng v Judith Atieno Owiti & another [2019] KEELC 1843 (KLR)

Environment and Land Court
15 September 2019
SKS. M. Kibunja
3,548 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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A registered land title beats mere allotment letters in Kenya, and building on land already registered amounts to trespass with real costs.

What this practically means

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Executive summary

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The Plaintiff sued the Defendant seeking permanent and mandatory injunctions, eviction and general damages for trespass over Kisumu Municipality L.R. No. 25793, alleging she encroached on 20th March 2004. The Defendant denied trespass, asserting she purchased Plot No. 323 Migosi Phase 1 from one Patrick Obiji Owuor and counterclaimed for a declaration of beneficial ownership and rectification of the register, alleging the Plaintiff's registration was procured by fraud. The Third Party, Kisumu Municipal Council, denied that the two parcels were the same and denied allocating the plot to Patrick. The court framed six issues, including whether the two descriptions referred to the same plot and who held the better title. On the evidence, the court found that Plot No. 323 became L.R. 25793 upon survey and registration in the Plaintiff's favour under a grant issued in March 2002. The Plaintiff held a grant under the Registration of Titles Act while the Defendant had only letters of allotment and a sale agreement, with no proof of acceptance, payment, Council recommendation or transfer. The court held that allocations made after the grant were null and void ab initio, that the Defendant's occupation was actionable trespass, and that she failed to discharge her burden under Section 107 of the Evidence Act for indemnity against the Third Party. Judgment was entered for the Plaintiff: a mandatory injunction to remove the structures within ninety days with default eviction and demolition orders, Kshs. 200,000 general damages for trespass, costs to the Plaintiff, dismissal of the counterclaim with costs, and the Defendant to pay the Third Party's costs. The suit, transferred from the High Court under Article 162(2)(b), was decided on 15th September 2019 by S.M. Kibunja, Environment and Land Judge.

Key legal issues

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01

Whether Plot No. 323 Migosi Phase 1 and L.R. No. 25793 are the same parcel

Holding

They are one and the same plot; the un-surveyed plot became L.R. 25793 upon survey and registration in the Plaintiff's favour

Reasoning

The court compared the Plaintiff's allotment letter of 2nd July 1997 for Un-surveyed Residential Plot No. 323 Migosi Site and Service Scheme with Grant No. I.R. 90151 registering him as owner of L.R. 25793 for 99 years from 1st August 1995. The oral and documentary evidence of PW1, PW3 and DW4 left no doubt that the surveyed and registered parcel was the same plot.

p. 3
02

Who has the better title to the suit property

Holding

The Plaintiff, holding a grant issued under the Registration of Titles Act, has a better title than the Defendant who relies only on letters of allotment and a sale agreement

Reasoning

The Plaintiff produced a letter of allotment dated 2nd July 1997, evidence of compliance in 2001, a recommendation letter of 28th June 1997, and a grant issued in March 2002. The Defendant had only two letters of allotment (April 2003 and October 2003) and a sale agreement, with no proof of acceptance, payment or Council recommendation. DW4 conceded the Plaintiff had the better title.

p. 3
03

Validity of the Defendant's and Patrick's allocations

Holding

The post-grant letters of offer were null and void ab initio since the plot was no longer available for alienation

Reasoning

The Commissioner of Lands issued the grant in March 2002 and its legality was never challenged or the plot repossessed. The plot therefore ceased to be available for allocation in 2003. The letter of offer to Patrick bore alterations, changing 'Plot No. 307' to '323', and no Council recommendation existed for the Defendant or Patrick.

p. 3
04

Whether the Defendant's occupation constitutes actionable trespass

Holding

Yes; her occupation was illegal and she was liable in general damages of Kshs. 200,000

Reasoning

The Plaintiff had been unable to use the land since 20th March 2004 due to the Defendant's construction. Though both parties gave unclear rental figures of Kshs. 10,000/= without specifying a period, and the Plaintiff had no approved building plans, the court found Kshs. 200,000/= adequate general damages for the interference with his user.

p. 3
05

Whether the Defendant is entitled to indemnity from the Third Party

Holding

No; she failed to discharge her burden under Section 107 of the Evidence Act

Reasoning

The Third Party denied the plot's existence as at the alleged allocation and denied allotting it to Patrick. It called no witness, but the Defendant, who took out the third party notice, bore the burden of establishing entitlement to indemnity and did not do so. She was therefore liable for the Third Party's costs.

p. 3

Legal principles established

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  • Once a grant has issued and been registered over land, that land is not available for fresh allocation, and any subsequent letters of offer over it are null and void ab initio
  • Between a registered title and mere letters of allotment, the holder of the title has the better title
  • A party seeking indemnity from a third party bears the burden of proof under Section 107 of the Evidence Act

Court orders

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  1. 1.A mandatory injunction compelling the Defendant to forthwith remove all fixtures, structures and building materials illegally erected on Kisumu Municipality L.R. No. 25793 within ninety (90) days, and in default eviction and demolition orders to issue
  2. 2.The Defendant to pay the Plaintiff Kshs. 200,000/= as general damages for trespass
  3. 3.The Defendant to pay the Plaintiff's costs of the suit
  4. 4.The Defendant's counterclaim is dismissed with costs to the Plaintiff
  5. 5.The Defendant to pay the Third Party's costs

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActNo. 19 of 2011
  • Registration of Titles ActChapter 281 of Laws of Kenya (now repealed)
  • Evidence ActSection 107, Chapter 80 of Laws of Kenya
  • Civil Procedure ActSection 27, Chapter 21 of Laws of Kenya
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Environment and Land Court Act No. 19 of 2011 (suit transferred from the High Court)

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, "Lucas A.O.N Ochieng v Judith Atieno Owiti & another [2019] KEELC 1843 (KLR)", Case Analysis (2019). ELC Case No. 48 of 2017 (formerly H.C.C.C. No. 110 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1843/eng@2019-09-05

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