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ELCDismissedNot stated in the judgment· [2019] KEELC 3550 (KLR)

Isaac Kipleting Kibitok alias Isaak Kipleting Kibitok v Secretary Board of Governors Cherangany Primary School, Principal Secretary Ministry of Education & Attorney General (? 4 of 2018) [2019] KEELC 3550 (KLR)

Environment and Land Court
30 April 2019
MNMwangi Njoroge
954 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Kitale delivered by Mwangi Njoroge, J, on 30 April 2019, in a petition concerning 12 acres of land, part of LR No. 2142/7, occupied by Cherangany Primary School. The applicant, the registered proprietor of the land, sought interim compensation for the school's occupation of the 12 acres, together with an inquiry as to damages for the period of occupation alleged to run from 1970, and costs. He asserted that the Ministry of Education had secured the land with intent to lease or buy it but had never paid or compensated him. The 1st respondent, through the affidavit of the Board of Management's secretary, denied any negotiated lease, purchase or promise of compensation, contending that the school was established on the land in 1926 on a white settler's compound, that the applicant acquired the land in 1981 in unclear circumstances and had purported to donate the 12 acres to the school in 1984, and that the school had been in possession for 92 years; limitation was also pleaded. The court found that the validity of the applicant's title and his capacity to donate the land were in issue, that the school's possessory rights required inquiry before final orders, and that no proof that the applicant was deserving had been furnished. Concern was also raised about the applicant's capacity to refund any payment should the petition fail. The application was accordingly dismissed with costs to the respondents, with the compensation issue reserved for the main hearing.

Key legal issues

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01

Whether interim compensation for occupation of the suit land can be ordered before determination of the main petition

Holding

The application was dismissed; the court cannot order preliminary payment where the applicant's title and the school's possessory rights are contested and unascertained.

Reasoning

The respondents contest the applicant's claim and the validity of his title is in issue, including his capacity to donate the land. The school has been in possession for approximately 92 years and its rights must be inquired into before final orders. No proof that the applicant is deserving was furnished, and any payment ordered could not be refunded given the applicant's unproven capacity to repay. The issue was reserved for the main hearing.

p. 2

Legal principles established

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  • An interlocutory application for compensation for occupation of land cannot be granted where the validity of the applicant's title and the respondent's possessory rights remain contested and require determination at the main hearing

Court orders

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  1. 1.The application dated 27/2/2018 is dismissed
  2. 2.Costs of the application are awarded to the respondents
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court in a petition concerning land LR No. 2142/7

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Isaac Kipleting Kibitok alias Isaak Kipleting Kibitok v Secretary Board of Governors Cherangany Primary School, Principal Secretary Ministry of Education & Attorney General (? 4 of 2018) [2019] KEELC 3550 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3550/eng@2019-04-30

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