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ELCPartially AllowedELC Case of Machakos (Plaint dated 20th June, 2017)· [2020] KEELC 1442 (KLR)

Wilson Masila Muema v County Government of Machakos [2020] KEELC 1442 (KLR)

Environment and Land Court
30 July 2020
OAO.A. Angote
2,550 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Machakos court confirmed a landowner's valid title and ordered the county government to approve his building plans within 30 days.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of Machakos Municipality Block 1/756, sued the County Government of Machakos for declining to approve his development plans, claiming a mandatory injunction and general damages of Kshs. 8,000,000. The Defendant, in its Defence and Counter-claim, alleged the suit property was public land formerly held by the defunct Machakos Municipal Council, that the allocation was fraudulently procured in collusion with council officers without compliance with Section 144(3) of the repealed Local Government Act, and sought revocation of the Plaintiff's Certificate of Lease and rectification of the register. At the hearing only the Plaintiff testified; the Defendant called no evidence. The court found that the Plaintiff was issued a letter of allotment with an approved Part Development Plan, accepted the offer, and was issued a Lease by the Commissioner of Lands and thereafter a Certificate of Lease, satisfying the allocation process in Nelson Kazungu Chai. Under Section 26(1) of the Land Registration Act his title was prima facie indefeasible, and the Defendant adduced no evidence of fraud or misrepresentation. The Defendant's receipt of rates from the Plaintiff was an acknowledgment of ownership, and it also ignored a 2017 judicial review directive to communicate its decision on the development plan. The court allowed the suit in part: a mandatory injunction compelling approval of the development plans within 30 days of service of the decree was issued, and the Defendant was ordered to pay the costs. The claim for general damages was denied for want of evidence.

Key legal issues

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01

Validity of the Plaintiff's allocation and title

Holding

Due process was followed; the Plaintiff holds a valid Certificate of Lease

Reasoning

The Plaintiff was issued a letter of allotment together with an approved Part Development Plan, accepted the offer, paid rates, and the Commissioner of Lands issued the Lease, after which the Registrar issued the Certificate of Lease. The Defendant tendered no evidence to rebut this or to prove fraud, and its receipt of rates acknowledged ownership.

p. 3
02

Fraud alleged by the Defendant

Holding

Fraud was not specifically pleaded with particulars nor proved; the Defendant led no evidence

Reasoning

The Defendant alleged the allocation was tainted with fraud and that the land was public land reserved for council housing, but called no witnesses and adduced no evidence. General allegations of fraud are insufficient to infer liability, and the Defendant did not explain why it entered the Plaintiff in its valuation roll and received rates.

p. 3
03

Mandatory injunction to approve development plans

Holding

Granted - the Defendant unreasonably withheld approval despite a prior court directive

Reasoning

The Defendant declined to approve the Plaintiff's development plans and never complied with a 2017 court directive to communicate its decision within 45 days. Having paid rates and holding a valid title, the Plaintiff was entitled to a mandatory injunction compelling approval within the existing regulations.

p. 3

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is a party, or where acquired illegally, unprocedurally or through a corrupt scheme.
  • Allegations of fraud must be specifically pleaded and proved to a standard higher than the usual balance of probability in civil cases.
  • Unalienated government land may only be allocated after a Part Development Plan is drawn and approved, followed by a letter of allotment and compliance with its terms.

Court orders

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  1. 1.An order of mandatory injunction be and is hereby issued compelling the Defendant to grant to the Plaintiff approvals to develop land parcel number Machakos Municipality Block 1/756 in line with the existing laws and regulations on development within 30 days from the date of service of the Decree.
  2. 2.The Defendant to pay the costs of the suit.

Authorities

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Legislation

  • Local Government Act (repealed)Section 144(3) and 144(5)
  • Land Registration ActSection 26(1)
  • Government Lands Act (repealed)Part Development Plan requirements

Cases cited (8)

  • Nelson Kazungu Chai & 9 others vs. Pwani University (2014) eKLR
    (2014) eKLR
  • Nelson Kazungu Chai & 9 others vs. Pwani University College (2017) eKLR
    (2017) eKLR
  • Bruce Joseph Bockle vs. Coquero Limited (2014) eKLR
    (2014) eKLR
  • MaCfoy vs. United Africa Company Limited [1967] 3 ALL ER 1169
    [1967] 3 ALL ER 1169
  • Standard Chartered Bank Kenya vs. Intercom Services Limited, Civil Appeal No. 37 of 2003
    Civil Appeal No. 37 of 2003
  • Holman vs. Johnson [1775-1802] ALL ER
    [1775-1802] ALL ER
  • East African Cables Limited vs. The Public Procurement Complaints, Review & Appeals Board and Another [2007] eKLR
    [2007] eKLR
  • African Line Transport Company Limited vs. The Hon. Attorney General, Mombasa HCCC No. 276 of 2013
    Mombasa HCCC No. 276 of 2013
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land and environment disputes

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Wilson Masila Muema v County Government of Machakos [2020] KEELC 1442 (KLR)", Case Analysis (2020). ELC Case of Machakos (Plaint dated 20th June, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1442/eng@2020-07-30

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