Joseph Gatubi Kariuki v Kikuyu Sub County (Formerly Town Council of Kikuyu) & another [2019] KEELC 4165 (KLR)
The bottom line
#A Kenyan court cancelled a landowner's title because the council revoked the original allotment without giving the owner notice or a hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether Plot 25A and Plot 29 are the same plot
The court found the two are one and the same plot; the 2nd Defendant produced no evidence to show they were distinct
The 1st Defendant's own replying affidavit indicated Plot 25A was revoked and renumbered to Plot 29A. The 2nd Defendant denied renumbering but called no independent witness to prove the plots were different, leaving the court unpersuaded that they were two separate plots.
Whether the revocation of the Plaintiff's allotment followed due process
The revocation was irregular, unprocedural and null and void for breach of natural justice
The Council never informed the Plaintiff or the allotee John Njoroge of the intended revocation nor afforded them a hearing, breaching Articles 40 and 47 and natural justice. It also continued accepting rates and approving transfers and building plans for the same plot after purported revocation, and adduced no evidence justifying the revocation.
Whether the 2nd Defendant's title can be cancelled
The title was cancelled as it was not good title, having derived from a void revocation and an entry that was fraudulent, erroneous or illegal
Since the revocation was void ab initio, the interest remained with the Plaintiff and could not pass to Booker Kungu and thence the 2nd Defendant. No documentation of the renumbering and re-allotment to Booker Kungu was provided, and under Sections 26(1) and 80(1) of the Land Registration Act the title was liable to cancellation.
Whether the Plaintiff was entitled to damages for trespass
Trespass proved but only nominal damages of Kshs.100,000/= awarded absent proof of the cost of restoration
The 2nd Defendant did not deny destruction of the fence, so trespass was established. However, the measure of damages is the drop in value or cost of restoration, whichever is less, and the Plaintiff adduced no evidence of the value of the fence or the property's state before and after the trespass.
Whether the 2nd Defendant's Counter-claim was proved
Counter-claim dismissed entirely for failure of proof
The 2nd Defendant failed to prove his counter-claim to the required standard of balance of probabilities. His own chain of title from Booker Kungu through John Mbiriri lacked documentation, and neither predecessor ever took possession, the Plaintiff having been in possession throughout.
Legal principles established
#- A proprietor of land is entitled to be heard before action is taken to deprive him of the property; revocation without notice and hearing violates natural justice and is null and void
- A certificate of title is subject to challenge where acquired illegally, unprocedurally or through a corrupt scheme, even without proving the proprietor's personal fraud
- A court may order rectification of the register where a registration was obtained by fraud or mistake
Court orders
#- 1.Judgment for the Plaintiff against the Defendants jointly and severally in terms of prayers No. (a) and (b), being a permanent injunction restraining interference with the Plaintiff's plot and general damages of Kshs.100,000/= for trespass
- 2.Costs of the suit and interest thereon to the Plaintiff from time of filing suit to date of judgment
- 3.The 2nd Defendant's Counter-claim dismissed entirely with costs to the Plaintiff
- Jurisdiction invoked
- Original civil suit; Land Registration Act (Sections 26(1) and 80(1)) and Articles 40 and 47 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Gatubi Kariuki v Kikuyu Sub County (Formerly Town Council of Kikuyu) & another [2019] KEELC 4165 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4165/eng@2019-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.