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ELCPartially Allowednot stated in judgment (amended plaint dated 3.10.2013)· [2019] KEELC 4467 (KLR)

Wangari Wanjau v County Government of Uasin Gishu [2019] KEELC 4467 (KLR)

Environment and Land Court
21 February 2019
AOA. Ombwayo
2,315 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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The plaintiff, Wangari Wanjau, sued the County Government of Uasin Gishu claiming to be the registered owner of Land Parcel No. Eldoret Municipality Block 11/1144 at Mwanzo Estate, Eldoret. Her building plans were approved by the then Municipal Council of Eldoret on 23 February 2012, and she obtained a Kshs. 4.6 million mortgage from Kenya Commercial Bank and delivered building materials to the site. On 24 September 2012 the Council withdrew the development approval pending investigations into ownership and use, stopping construction. She sought a declaration that the withdrawal was unlawful, damages and a permanent injunction. The defendant denied her ownership, asserted the withdrawal was lawful under the repealed Local Government Act (Cap 265) and the Physical Planning Act, and contended through its physical planner that the land was set aside for a community centre under a 1984 part development plan and was therefore unavailable for private development. The court held that the plaintiff proved on a balance of probabilities that she is the registered owner, applying Sections 24, 25 and 26 of the Land Registration Act on indefeasibility of title. The defendant failed to prove fraud, misrepresentation, illegality or corrupt acquisition. The court further found that withdrawing the development approval without affording the plaintiff a hearing breached the principle of fair administrative action and was illegal. General damages were assessed globally at Kshs. 3,000,000 for loss suffered, but exemplary and aggravated damages were refused for want of proof of malice. Costs of the suit were awarded to the plaintiff.

Key legal issues

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01

Ownership of the suit property

Holding

The plaintiff proved on a balance of probabilities that she is the registered owner of Eldoret Municipality Block 11/1144

Reasoning

Relying on Sections 24, 25 and 26 of the Land Registration Act, registration vests absolute ownership and the certificate of title is prima facie evidence of indefeasible ownership. The defendant failed to prove fraud, misrepresentation or illegality/unprocedural acquisition, and the county land registrar demonstrated the title was procedurally obtained.

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02

Legality of withdrawal of development approval

Holding

The withdrawal was illegal as it breached fair administrative action

Reasoning

The defendant admitted withdrawing the approval pending investigations on ownership and use, and invited the plaintiff to its offices, but did not afford her a hearing before withdrawing the approval. Such unilateral administrative action without a hearing was unjustified and illegal.

p. 3
03

Damages

Holding

General damages of Kshs. 3,000,000 awarded as a global figure; exemplary/aggravated damages refused

Reasoning

The plaintiff demonstrated she had dug the foundation and placed materials on site, and her planned residential units would have earned about Kshs. 96,000 per month. The court assessed loss globally at Kshs. 3,000,000. Malice was not proved, so exemplary or aggravated damages were not awarded.

p. 3
04

Defence that the land was set aside for a community centre

Holding

Rejected; the defendant did not discharge the burden of proving the title was improperly obtained

Reasoning

The defendant's witness contended the parcels were earmarked for a community centre under a 1984 part development plan and must have been acquired in an underhand manner. However, the defendant did not prove fraud, corruption or unprocedural acquisition to the required standard, and the registrar's evidence showed procedural acquisition.

p. 3

Legal principles established

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  • A registered proprietor's title is indefeasible and can only be challenged on proof of fraud, misrepresentation, or that it was acquired illegally, unprocedurally or through a corrupt scheme
  • Withdrawal of a development approval without affording the affected person a hearing breaches fair administrative action and is illegal

Court orders

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  1. 1.Declaration that the plaintiff is the registered owner entitled to use Land Parcel No. Eldoret Municipality Block 11/1144 per the lease conditions (implied by findings and prayers allowed)
  2. 2.Finding that the withdrawal of the development approval was illegal for breach of fair administrative action
  3. 3.General damages for loss suffered awarded at a global figure of Kshs. 3,000,000
  4. 4.Costs of the suit to the plaintiff

Authorities

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Legislation

  • Land Registration ActSection 24
  • Land Registration ActSection 25
  • Land Registration ActSection 26
  • Local Government Act (repealed)Chapter 265
  • Physical Planning Actnot specified (referred to as Physical Planner Act, 1996)
Jurisdiction invoked
Original civil jurisdiction over a land dispute; judgment does not cite a specific provision

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, "Wangari Wanjau v County Government of Uasin Gishu [2019] KEELC 4467 (KLR)", Case Analysis (2019). not stated in judgment (amended plaint dated 3.10.2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4467/eng@2019-02-21

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