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ELCPartially AllowedE.L.C. Case No. 11 of 2015 (Formerly Kerugoya ELC No. 316 of 2013)· [2019] KEELC 2184 (KLR)

Cosmas N.E. Kathungu v Njue Kiarie & Janet Waihune Njue; National Land Commission,Chief Land Registrar, Director of Physical Planning,Director of Surveys,Embu County Government & Attorney General (Necessary Parties) (Environment & Land Case 11 of 2015) [2019] KEELC 2184 (KLR)

Environment and Land Court of Kenya
25 July 2019
7,864 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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The court ordered demolition of a building that encroached on the owner's Embu plot and awarded him Ksh.43 million for the years of wrongful occupation.

What this practically means

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Executive summary

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The plaintiff, registered lessee of Plot No. Embu/Municipality/1503, sued the defendants, joint lessees of adjoining Plot No. 81, for demolition of an encroaching building, a permanent injunction and mesne profits of Kshs.192,000/- per month from August 2000, alleging trespass. The defendants denied encroachment, denied the existence of Plot 1503, pleaded estoppel and acquiescence, and by leave joined six necessary parties, alleging double or overlapping allocation and seeking revocation of the plaintiff's allotment. The 5th necessary party, Embu County Government, counterclaimed for cancellation of the plaintiff's lease and eviction, alleging fraudulent and irregular allocation, including that the plot was reserved for water installations and that reinstatement conditions were unmet. The court, presided over by Y.M. Angima J, framed ten issues and found, principally on the joint report of the Land Registrar and Land Surveyor dated 6th February 2018, that Plot 1503 exists, does not overlap Plot 81, and that the defendants massively encroached on over three-quarters of it. The purported extension of Plot 81's boundaries was irregular for want of an approved PDP, survey plan and allotment, contravening section 30(2) of the Survey Act. None of the County's particulars of fraud were proved. The counterclaim was held not statute-barred, falling under section 42(1)(k) of the Limitation of Actions Act, but it failed on the merits. Estoppel and acquiescence defences were rejected. The plaintiff obtained judgment: demolition within 60 days, mesne profits of Kshs.43,008,000.00 with interest, and costs; the counterclaim and the defendants' claim against the necessary parties were dismissed with costs.

Key legal issues

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01

Existence of Plot 1503 and overlap with Plot 81

Holding

Plot 1503 exists on the ground and in survey records and does not overlap with Plot 81; the two share only a common boundary of 30.48m

Reasoning

The joint report of the Land Registrar and Land Surveyor dated 6th February 2018, filed pursuant to a court order, confirmed the plot's existence and surveyed boundaries. PW1 described a fixed boundary survey with authenticated survey plan F/R 380/76. The Defendants produced no credible rebuttal survey evidence; DW1's letter was not backed by survey records, maps or sketches.

p. 4
02

Encroachment and trespass by the Defendants

Holding

The Defendants massively encroached upon more than three-quarters of Plot 1503 with their two-storey building

Reasoning

The court accepted the joint report of the two public officials without qualification since the Defendants declined the opportunity to have their own surveyors present and produced no surveyor's report of their own. DW1 was found not to be a candid and truthful witness, having taken no measurements and produced no survey plans or plot registers.

p. 4
03

Regularity of the extension of Plot 81 boundaries

Holding

The purported extension of Plot 81 into Plot 1503 was irregular, unlawful and ineffectual to confer property rights

Reasoning

The extension lacked an approved PDP, authenticated survey plan and letter of allotment. Under section 30(2) of the Survey Act, deposited survey plans cannot be altered without the Director of Surveys' permission. County council resolutions alone could not effect a valid boundary extension.

p. 5
04

Alleged fraud and irregularity in the Plaintiff's acquisition of Plot 1503

Holding

None of the particulars of irregularity and fraud were proved; the Plaintiff's title could not be impeached

Reasoning

The water-installation reservation was not proved for want of a credible, certified plan; the plot allocation committee had no legal basis; the Commissioner of Lands had authority under section 9 of the Government Lands Act and obtained the required consent under section 144(6) of the Local Government Act; the reinstatement conditions did not oblige the Plaintiff to undertake the re-routing works, only to meet the cost.

p. 6
05

Limitation of the County's counterclaim

Holding

The counterclaim is not statute-barred under section 42(1)(k) of the Limitation of Actions Act

Reasoning

Section 42(1)(d) on Government land was held inapplicable to county governments, but the counterclaim fell within section 42(1)(k) excluding limitation for recovery or compensation in respect of public property regardless of who filed. The court found the text, context and circumstances did not permit the wider reading of 'Government' contended by the County.

p. 7
06

Estoppel and acquiescence defences

Holding

Neither estoppel nor acquiescence was established against the Plaintiff

Reasoning

There were no dealings between the Plaintiff and Defendants concerning Plot 1503 and no representation, let alone an unequivocal one, was proved. The consent order of 21st December 2000 only permitted construction within Plot 81 and did not authorise encroachment. The Plaintiff filed suit promptly upon learning of the encroachment.

p. 8
07

Measure and quantum of mesne profits

Holding

Mesne profits awarded at Ksh.192,000/- per month from 1st December 2000 to judgment, totalling Ksh.43,008,000.00, with interest at court rates from judgment

Reasoning

The measure is a reasonable rent for the period of trespass. The Plaintiff claimed Ksh.8,000/- per shop per month while the 1st Defendant admitted collecting Ksh.15,000-20,000; the unpleaded higher figure could not be awarded. The award runs from registration as lessee rather than August 2000 as pleaded.

p. 8

Legal principles established

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  • Deposited survey plans cannot be altered or amended without the permission of the Director of Surveys
  • In the absence of an approved PDP, authenticated survey plan and letter of allotment, there can be no valid extension of plot boundaries; council resolutions alone are ineffectual
  • Section 42(1)(k) of the Limitation of Actions Act excludes the limitation period for claims for recovery of public property regardless of who filed the action
  • Equitable estoppel requires a clear and unequivocal representation; mere silence or inaction rarely suffices
  • Mesne profits are payable to a person wrongly deprived of his property for the period of wrongful occupation

Court orders

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  1. 1.The Defendants to remove or demolish their building encroaching upon Plot No. Embu/Municipality/1503 within 60 days, in default of which the Plaintiff may demolish at the Defendants' cost
  2. 2.The Defendants to pay the Plaintiff mesne profits at Ksh.192,000/- per month from 1st December 2000 to the date of judgment, totalling Ksh.43,008,000.00
  3. 3.The said Ksh.43,008,000.00 to attract interest at court rates from the date of judgment until payment in full
  4. 4.The Defendants to meet the Plaintiff's costs of the suit
  5. 5.The 5th necessary party's (Embu County Government) counterclaim dismissed in its entirety with costs to the Plaintiff
  6. 6.The Defendants' claim against the necessary parties dismissed in its entirety with costs to the 2nd-6th necessary parties

Authorities

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Legislation

  • Civil Procedure RulesOrder 15 Rule 2
  • Limitation of Actions Act (Cap. 22)sections 2, 3, 7, 42(1)(d), 42(1)(k)
  • Interpretation and General Provisions Act (Cap. 2)section 3
  • Constitution of Kenya, 2010Article 260
  • Survey Act (Cap. 299)section 30(2)
  • Government Lands Act (now repealed)section 9
  • Local Government Act (now repealed)section 144(6)
  • Civil Procedure Act (Cap. 21)section 27 (proviso)
  • Government Proceedings Act (Cap. 40)not specified

Cases cited (6)

  • Attorney General Vs Halal Meat Products Ltd
    Civil Appeal No. 114 of 2009 [2016] eKLR
  • Kenya Hotel Properties Ltd Vs Willesden Investments Ltd
    Civil Appeal No. 149 of 2007 [2009] eKLR
  • Ivergurie Investments Vs Hackett (Lord Lloyd)
    [1995] 3 All Eng. Rep: 482
  • Century Automobiles Ltd Vs Hutchings Biemer Ltd
    [1965] EA 304
  • Nurdin Bandali V Lombank Tanganyika Ltd
    [1963] E.A. 304
  • Hussein Janmohamed & Sons Ltd V Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land dispute); issues framed under Order 15 Rule 2 of the Civil Procedure Rules

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, "Cosmas N.E. Kathungu v Njue Kiarie & Janet Waihune Njue; National Land Commission,Chief Land Registrar, Director of Physical Planning,Director of Surveys,Embu County Government & Attorney General (Necessary Parties) (Environment & Land Case 11 of 2015) [2019] KEELC 2184 (KLR)", Case Analysis (2019). E.L.C. Case No. 11 of 2015 (Formerly Kerugoya ELC No. 316 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2184/eng@2019-07-25

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