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ELCAllowedKisii Environment and Land Court Suit (plaint dated 21st November 2017)· [2019] KEELC 3447 (KLR)

Kelvin Kimilu (suing as guardian ad Litem of Children at Kisii Children Home) & 3 others v Joshua Abuga & 6 others [2019] KEELC 3447 (KLR)

Environment and Land Court
13 May 2019
1,815 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kisii court confirmed a children's charity owns its land and ordered a church using it by permission to vacate within 90 days.

What this practically means

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Executive summary

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The 1st, 2nd and 3rd plaintiffs, being the Child Welfare Society of Kenya and its Kisii branch, sued the Seventh Day Adventist Church (Millenium) and others claiming ownership of land parcel Kisii Municipality/Block III/153, on which they operate a children's home housing over 300 children. They alleged that in 2010 they permitted the defendants a limited licence to erect a temporary shelter for Saturday worship, but that from about 2012 the defendants erected permanent structures, caused noise disturbance, destroyed a perimeter wall under construction, laid ownership claims to the portion, and lobbied County Government officials to have the portion transferred to them. The plaintiffs sought a permanent injunction, eviction and demolition of the defendants' structures. The defendants, through a replying affidavit sworn by Peterson Ondicho, denied the licence and claimed occupation of a distinct unsurveyed plot obtained by allotment. Facing rival contentions on delineation, the court directed the land registrar and county surveyor to fix the boundaries of parcel 153. Their joint report dated 8th July 2018 confirmed the parcel measures 1.559 acres, contains the children's home buildings, and that the defendants' temporary worship structure lies within parcel 153; no unsurveyed plot abuts the suit land. The defendants' alleged allotment letter was incomplete, with no Part Development Plan, and the rates demand notice identified no plot. The court found the church's earlier letters seeking permission to improve its prayer shade amounted to an admission it was housed on the plaintiffs' grounds. The court adopted the report, declared the parcel belongs to the 2nd and 3rd plaintiffs, held the defendants were licensees whose licence stood revoked for inconsistent conduct, ordered them to deliver vacant possession within 90 days failing which forcible eviction would issue, and directed that each party bear their own costs.

Key legal issues

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01

Delineation and extent of land parcel Kisii Municipality/Block III/153

Holding

The court adopted the land registrar's report which established that the plaintiffs' buildings and the Children's Home are located on parcel 153, and that the defendants' temporary structure used for prayers is also within that parcel.

Reasoning

Faced with rival claims as to the parcel occupied, the court directed the land registrar and county surveyor to delineate and fix the boundaries of parcel 153 and file a report. The joint report dated 8th July 2018 found the parcel measures 1.559 acres, identified the children's home buildings and confirmed the defendants' temporary structure lies within parcel 153. No unsurveyed plot was identified abutting the suit land. The defendants' alleged allotment letter was incomplete and unsupported by any Part Development Plan.

p. 3
02

Status of the defendants' occupation - licence or independent allotment

Holding

The defendants occupied as licensees of the plaintiffs; the church's own letters in prior Children's Court proceedings constituted an admission it was housed in the Children's Home grounds, and its claim of an allotment of an unsurveyed plot failed for lack of evidence.

Reasoning

The defendants claimed occupation by way of an allotment of an unsurveyed plot, annexing an allotment letter and rates demand notice. The court found the allotment letter incomplete, the unsurveyed plot unidentified and no PDP attached; the demand notice did not identify any plot. Conversely, letters of 22nd February 2010 and 4th April 2010 seeking permission to improve the prayer shade and indicating the church would move out once it found a plot showed the occupation was on the plaintiffs' courtesy.

p. 3

Legal principles established

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  • The land registrar, under Sections 18 and 19 of the Land Registration Act 2012, has the mandate to define and establish boundaries of all registered parcels.
  • A licensee who acts inconsistently with the terms of the licence, for example by staking ownership claims, forfeits the licence which may be cancelled or revoked.

Court orders

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  1. 1.That land parcel Kisii Municipality/Block III/153 belongs to the 2nd and 3rd plaintiffs and they are entitled to its exclusive use
  2. 2.That the defendants have occupied a portion of land parcel Kisii Municipality/Block III/153 as licensees of the 2nd and 3rd plaintiffs
  3. 3.That the defendants have acted inconsistently with the licence granted to them and the licence stands cancelled and/or revoked
  4. 4.The defendants shall vacate the premises they occupy on the plaintiffs' land and deliver vacant possession within 90 days from the date of the ruling, failing which an order for forcible eviction will issue on the application of the 2nd and 3rd plaintiffs
  5. 5.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Land Registration ActSections 18 and 19
Jurisdiction invoked
Original jurisdiction over land parcel Kisii Municipality/Block III/153; reference to land registrar under Sections 18 and 19 of the Land Registration Act 2012

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, "Kelvin Kimilu (suing as guardian ad Litem of Children at Kisii Children Home) & 3 others v Joshua Abuga & 6 others [2019] KEELC 3447 (KLR)", Case Analysis (2019). Kisii Environment and Land Court Suit (plaint dated 21st November 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3447/eng@2019-05-13

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