Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedChuka ELC (number not stated in judgment)· [2020] KEELC 971 (KLR)

Gilbert Gitari Bore & another v Kenya Urban Roads Authority & 3 others [2020] KEELC 971 (KLR)

Environment and Land Court
13 October 2020
2,316 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Chuka confirmed two plot owners' title, barred the county government and a contractor from demolishing their buildings, and awarded them costs.

What this practically means

#

Executive summary

#
The plaintiffs, owners of Plots No. 223 and No. 225 Chuka Township, sued the 1st to 4th defendants seeking a declaration that the plots are theirs and are not on any road reserve, notably the projected 'Moi Girls' Road, and a permanent injunction against demolition. The dispute arose from demolition notices dated 18th/19th February 2020 served by the 1st and 4th defendants, with the 4th defendant, Hyper Constructors and Equipments Company Limited, threatening to demolish the plots and adjacent plots in March 2020. Earlier, by a ruling delivered on 7th April 2020, the court had granted an order for an independent survey by the Survey of Kenya and service on the OCS Chuka Police Station. At the hearing, scheduled for 12th October 2020 after a clash with a three-bench matter at Meru, the defendants were absent despite service, and the court allowed the hearing to proceed exparte. The plaintiffs relied on the plaint, case summary, documentary exhibits, the 1st plaintiff's witness statement and the Chuka National Sub-County surveyor's report dated 13th May 2020, which found that the plots do not fall under the road reserve as per FR 253/67. The court found the case proved, entered judgment for the plaintiffs, issued the declaration of ownership and non-encroachment, granted a permanent injunction against all defendants from demolishing or interfering with the plots, and awarded the plaintiffs costs against all defendants.

Key legal issues

#
01

Ownership of Plots 223 and 225 Chuka Township and whether they encroach on a road reserve

Holding

The plaintiffs proved ownership of the plots and that the plots are not on any road reserve, including the projected 'Moi Girls' Road.

Reasoning

The plaintiffs produced the plaint, case summary, documentary exhibits including lease certificates, allotment letter, PDP and coordinates, the 1st plaintiff's witness statement, and the Chuka National Sub-County surveyor's report dated 13th May 2020. That report found the plots were resurveyed using coordinates on FR No. 268/168 and do not fall under the road reserve per FR 253/67. Relying on this evidence, the court found the case proved.

p. 4
02

Whether an unopposed hearing could proceed exparte

Holding

The court allowed the hearing to proceed exparte after satisfying itself that the defendants had been duly served with the hearing date and did not attend.

Reasoning

The suit had been slated for 6th October 2020 but was adjourned to 12th October 2020, with the plaintiff ordered to serve the hearing date on the defendants. On the hearing date the defendants were absent. The court confirmed due service and permitted the plaintiffs' advocate's oral application that the hearing proceed exparte, deeming the matter properly before it.

p. 4

Legal principles established

#
  • A categorical surveyor's report from the Survey of Kenya establishing plot boundaries vis-à-vis a road reserve can conclusively prove ownership and non-encroachment in an unopposed suit.

Court orders

#
  1. 1.A declaration that the plaintiffs are the owners of Plot No. 223 Chuka Township and Plot No. 225 Chuka Township respectively and that the said plots are not on any road reserve let alone 'MOI GIRLS' Road
  2. 2.A permanent injunction against all the defendants, their servants, agents, assignees or any person acting on their behest, from in any manner demolishing, damaging or interfering with the general use of the plaintiffs' Plot No. 223 and Plot No. 225 Chuka Township
  3. 3.Costs awarded to the plaintiffs against all the defendants

Authorities

#

Legislation

  • Constitution of KenyaArticle 40(3)(a)
  • Constitution of KenyaArticle 64
  • Civil Procedure RulesOrder 11
Jurisdiction invoked
Original civil suit; the judgment does not expressly state the jurisdictional provision (property rights invoked under Articles 40(3)(a) and 64 of the Constitution)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Gilbert Gitari Bore & another v Kenya Urban Roads Authority & 3 others [2020] KEELC 971 (KLR)", Case Analysis (2020). Chuka ELC (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/971/eng@2020-10-13

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