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ELCPartially AllowedMurang'a ELC Case (filed 24/1/2012)· [2019] KEELC 4098 (KLR)

Telkom Kenya Limited v County Government of Muranga [2019] KEELC 4098 (KLR)

Environment and Land Court
25 March 2019
JKJ. G. Kemei
5,015 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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Kenya's land court confirmed that an accepted, honoured allotment letter gives enforceable ownership rights, and ordered Murang'a County to remove traders it settled on Telkom Kenya's land within 90 days.

What this practically means

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Executive summary

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Telkom Kenya Limited sued the County Government of Murang'a seeking vacant possession of unsurveyed Kiriaini Post Office and Telephone Exchange allotted to its predecessor by a letter of allotment dated 10/9/1999, together with general damages for trespass and a mandatory injunction to remove traders. The Defendant had, in July 2010, relocated traders from the Kiriaini open-air market onto the suit land without notice or consent, promising removal within three months during market reconstruction, but the traders remained for years, vandalising installations. The Defendant closed its case without calling evidence and argued that an allotment letter conferred no rights over unsurveyed land, that it could acquire land for public purposes, that the retired witness should not have testified, and that the traders ought to have been enjoined. The court found the Plaintiff accepted the allotment, paid the outgoings, took possession, and was acknowledged as owner in the Defendant's letter of 13/7/2010; absent revocation, its proprietary interest crystallised. The continued occupation was held to be continuing trespass, and no compulsory acquisition procedure under Article 40(3) of the Constitution and the Land Act was followed. Following James Muigai Thugu and Lawrence Ogaro Onyiego, the court held section 16(2) of the Government Proceedings Act does not bar injunctions against County Governments. The court granted a mandatory injunction with 90 days for relocation, backed by section 152G of the Land Act and supervision by the OCS Murang'a, awarded nominal general damages of Kshs 200,000 with interest, declined the Kshs 954,179.46 claim as unpleaded special damages and the Kshs 50,000 monthly rent for lack of valuation, and awarded costs to the Plaintiff.

Key legal issues

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01

Proprietary interest based on an allotment letter over unsurveyed land

Holding

The Plaintiff, having accepted the allotment, paid the outgoings, taken possession and having been acknowledged as owner by the Defendant, holds an unchallenged proprietary interest despite no title being issued

Reasoning

The allotment letter of 10/9/1999 was accepted within 30 days, the banker's cheque and receipt were produced, possession was taken, the plot fenced and equipment installed. The Defendant tendered no evidence, and its 13/7/2010 letter acknowledged the Plaintiff's ownership. No evidence showed revocation or cancellation of the allotment, so the interest crystallised.

p. 3
02

Trespass by traders relocated by the Defendant

Holding

The traders' continued occupation on the Defendant's instructions, long after the promised 3-month relocation, constitutes continuing trespass

Reasoning

The Defendant admitted relocating traders without notice or consent, promising removal in 3 months. Nine years later the traders remain. Relocation for public purposes without following the compulsory acquisition procedure under Article 40(3) of the Constitution and sections 107-133 of the Land Act was illegal; the occupation lacks justification and continues daily.

p. 4
03

Mandatory injunction against a County Government

Holding

A mandatory injunction can issue against a County Government since section 16(2) of the Government Proceedings Act does not protect counties

Reasoning

Relying on James Muigai Thugu and Lawrence Ogaro Onyiego, the court held the Act was never amended to extend to devolved units, and County Governments, being body corporate with capacity to sue and be sued, are not shielded from injunctions. As trespass was proved and unchallenged, the mandatory injunction was granted.

p. 5
04

Quantum of damages for trespass

Holding

Nominal general damages of Kshs 200,000 awarded; the itemised Kshs 954,179.46 claim failed as unpleaded special damages, and the Kshs 50,000 monthly rent claim failed for lack of valuation evidence

Reasoning

General damages for trespass require no proof of specific loss, but the itemised vandalism claim was in substance special damages requiring specific pleading and proof. With no valuation report, the rental claim was speculative. The court awarded a nominal figure with interest from judgment.

p. 5
05

Effect of non-joinder of the traders

Holding

Non-joinder of the traders was not fatal; the Defendant, which relocated them, bears the duty to remove them

Reasoning

Order 1 rule 9 provides that no suit shall be defeated by misjoinder or non-joinder of parties, and the court may deal with the matter as regards the parties before it. The Defendant admitted relocating the traders and is duty-bound to remove them, so their absence as parties did not defeat the claim.

p. 5

Legal principles established

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  • Landed property comes into existence only after issuance of a letter of allotment, fulfilment of its conditions and issuance of a title document under the governing statute
  • A party who accepts an allotment, pays the consideration and takes possession acquires a proprietary interest even before a title is registered, absent revocation
  • Section 16(2) of the Government Proceedings Act does not bar injunctions against County Governments
  • Continuing trespass gives rise to a fresh cause of action from day to day
  • General damages for trespass may be awarded without proof of specific loss

Court orders

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  1. 1.The Defendant is ordered to relocate the traders from the Plaintiff's suit land within ninety (90) days from the date of the judgment
  2. 2.If the Defendant fails to comply, the Plaintiff shall be at liberty under section 152G of the Land Act to remove all persons who have trespassed onto the land
  3. 3.The OCS, Murang'a shall supervise enforcement and compliance with the removal order
  4. 4.Mandatory injunction directed at the Defendant, its servants and/or agents to remove, evict, relocate and/or transfer all traders and/or persons occupying the unsurveyed Kiriaini Post Office and Telephone Exchange
  5. 5.General damages of Kshs 200,000/- with interest at court rates from the date of judgment until payment in full
  6. 6.The Defendant shall meet the costs of the suit

Authorities

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Legislation

  • Constitution of KenyaArticle 40(3)
  • Land ActSections 107-133; 152G
  • Government Proceedings ActSection 16(2)
  • County Government Act2012 (generally)
  • Civil Procedure RulesOrder 1 rule 9

Cases cited (14)

  • Mbau Saw Mills Limited vs Attorney General & 2 others
    (2014) EKLR
  • M A Koinange Vs Joyce Ganchuku & 2 others
    (2015) EKLR
  • Ahmed Ibrahim Suleiman & Anor Vs Noor Khamis Surur
    (2013) EKLR
  • Philip Aluchio Vs Chrispinus Ngayo
    (2014) EKLR
  • Eliud Njoroge Gachiri Vs Stephen Kamau Nganga
    (2018) EKLR
  • Dr. Joseph Arap Ngok Vs Justice Moijo Ole Keiwa & 5 Others
    [1997] eKLR
  • Wreck Motor Enterprises Vs The Commissioner of Lands & Others
    (1997)
  • Patrick Musimba Vs National Land Commission & 4 others
    (2016) EKLR
  • Martha Kigen Vs Johnson Tibino
    (2014) EKLR
  • Nandan Pictures Ltd. Vs. Art Pictures Ltd & others
    Air 1956, Cal 428
  • Shepherd Homes Limited Vs Sandham
    [1971] 1 CH. 34
  • James Muigai Thugu –vs- County Government of Trans Nzoia & 2 Others
    [2015] EKLR
  • Lawrence Ogaro Onyiego & another v Samwel Minika & another
    [2017] eKLR
  • Park Towers Ltd -Vs- John Mithamo Njika and 7 Others
    2014 eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land claims (ELC), suit for trespass and vacant possession

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, "Telkom Kenya Limited v County Government of Muranga [2019] KEELC 4098 (KLR)", Case Analysis (2019). Murang'a ELC Case (filed 24/1/2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4098/eng@2019-03-25

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