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ELCDismissedE.L.C. Case No. 14 of 2015· [2019] KEELC 4210 (KLR)

Kefa Nyaga Kariuki & 4 others v County Government Of Embu (Environment & Land Case 14 of 2015) [2019] KEELC 4210 (KLR)

Environment and Land Court of Kenya
7 March 2019
YAY.M. Angima
2,074 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Embu ruled that Kenyan law only sets a minimum amount of land you must surrender when subdividing, so giving more is legal if agreed with authorities.

What this practically means

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Executive summary

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The five Plaintiffs, proprietors of Title Nos. Gaturi/Githimu/703, 704, 706 and 780, sued the County Government of Embu claiming that land they surrendered upon approval of their sub-division schemes in 1980 (about 43% of their land) was excessive and illegally acquired. They sought recovery of the excess 0.78 ha or, in the alternative, compensation of approximately Kshs 51,400,000 as assessed by their valuer. The Defendant denied the claim entirely and, though indicating it had a witness, called no evidence at trial. The 4th Plaintiff testified for the Plaintiffs, supported by a valuer (PW 2) and a registered Physical Planner (PW 3). Notably, PW 3 conceded that the law prescribed a minimum surrender of 20% and that a 43% surrender was not illegal, being a matter of agreement with the approving authority. The court framed four issues and found: (1) nothing irregular or illegal in the 1980 surrender conditions, the law prescribing a minimum and not a maximum surrender, and the Plaintiffs having waited about 25 years to complain; (2) the Town Planning Committee never approved recovery - the 2005 minute authorised only an advisory plan, and the Committee expressly rejected the re-planning application in 2006; (3) the Plaintiffs, having failed to prove the claim, were not entitled to the reliefs sought. Applying section 27 of the Civil Procedure Act and the principle that costs follow the event, the court dismissed the suit with costs to the Defendant. Judgment delivered by Y.M. Angima, J on 7th March 2019 at Embu.

Key legal issues

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01

Whether the surrender of about 43% of the Plaintiffs' land upon sub-division was excessive and illegal

Holding

The surrender was neither irregular nor illegal; the law prescribes a minimum surrender threshold (20%) and a larger surrender is a matter of agreement between plot owners and the approving authority.

Reasoning

The Plaintiffs' own physical planning expert (PW 3) testified that the minimum surrender is 20% but nothing illegal attaches to a 43% surrender, it being a matter of agreement. The schemes were approved in 1980 and the Plaintiffs raised no complaint or sought re-planning until about 2005, some twenty-five years later. The court found no violation of property rights.

p. 2
02

Whether the Town Planning Committee approved re-planning and recovery of the surrendered land

Holding

No approval was given; the 2005 minute only authorised engaging a planner for an advisory plan, and the resulting advisory plan was expressly rejected by the Committee in 2006.

Reasoning

MIN/TPWH/12/2005 merely directed that a registered planner be engaged to re-plan the riparian reserves on an advisory basis. The advisory plan produced (exhibit P.14) was not a revised sub-division scheme for approval. When placed before the Committee on 5th December 2006, the application for re-planning of the riparian reserve was expressly rejected under MIN/TPWH 73/2006.

p. 3

Legal principles established

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  • The Physical Planning law provides a minimum, not a maximum, percentage of land to be surrendered upon sub-division; a surrender exceeding the minimum is not per se illegal if agreed with the approving authority.
  • Costs follow the event under section 27 of the Civil Procedure Act and a successful litigant should be awarded costs absent good reason to depart.

Court orders

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  1. 1.The suit is hereby dismissed with costs to the Defendant.

Authorities

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Legislation

  • Physical Planning Act 1996minimum surrender percentage
  • Civil Procedure Act (Cap 21)section 27
  • Civil Procedure RulesOrder 15 Rule 2

Cases cited (1)

  • Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (Environment and Land Court Act); 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, "Kefa Nyaga Kariuki & 4 others v County Government Of Embu (Environment & Land Case 14 of 2015) [2019] KEELC 4210 (KLR)", Case Analysis (2019). E.L.C. Case No. 14 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4210/eng@2019-03-07

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