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ELCPartially AllowedNot stated in the judgment (Plaint dated 18th September, 2017)· [2020] KEELC 2122 (KLR)

Alli Juja Farmers Co. Ltd v Francis Gatua & another [2020] KEELC 2122 (KLR)

Environment and Land Court
15 June 2020
LGL. Gacheru
3,625 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered a church to remove structures built on access roads, confirming nobody can unilaterally take over roads reserved when land was subdivided.

What this practically means

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Executive summary

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The Plaintiff company, owner of L.R No. 4941 (150 acres) which it subdivided into about 4,900 plots for its shareholders and members, sued the 1st and 2nd Defendants (a church foundation and its congregation) alleging that structures of the church Sanctuary encroached on access roads and neighbouring plots. The Plaintiff sought removal of the structures, an injunction, general damages, aggravated damages and mesne profits, costs and interest. The Defendants contended they had bought 40 plots which were consolidated for construction of a church, that the whole block belonged to them, and that they were in the process of amalgamating the plots; they denied trespass. At trial the Plaintiff called two witnesses and the Defendants one. The court framed three issues: locus standi, justification of building on the road reserve, and entitlement to the orders sought. It held the Plaintiff had locus standi, noting the Defendants raised the point and the absence of a resolution only in submissions, which cannot take the place of evidence and cannot introduce unpleaded issues. On justification, the court found that although the Land Registration Act permits boundary alterations and combination of parcels, this requires application to and instructions from the Registrar, and alterations to access roads require the Board's permission under the Public Roads and Roads of Access Act; no evidence of an amalgamation process or exclusive use of the roads was produced. The Defendants' construction on the access road was therefore unjustified. However, trespass on other plots was not proved, so the injunction and damages claims failed. Judgment was entered for the Plaintiff on prayers (a) and (e) only, with costs to the Plaintiff as the successful party. The judgment was delivered online pursuant to COVID-19 directives, with parties waiving compliance with Order 21 rule 1 of the Civil Procedure Rules.

Key legal issues

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01

Whether the Plaintiff had locus standi to institute the suit

Holding

The Plaintiff had the requisite locus standi as owner of the original parcel and trustee of its members' interests in the subdivisions and access roads

Reasoning

The court held the locus standi argument was raised for the first time in submissions and was unpleaded, parties being bound by their pleadings. On the merits, the Plaintiff originally owned the 150 acres, which it subdivided among its shareholders, and its members' access would be affected by the Defendants' construction. Having sufficiency of interest, the Plaintiff had standing to sue.

p. 3
02

Whether the Defendants' construction of the Sanctuary on the access road/road reserve was justified

Holding

Not justified; the Defendants bought only the subdivisions and not the access roads, and any alteration or combination of the roads required the Registrar's or Board's due process

Reasoning

Although the Land Registration Act permits alteration of boundaries and combination of contiguous parcels, this must be done on application to and instruction of the Registrar. The Defendants produced no evidence of any ongoing amalgamation process or that the roads served only their 40 plots. With about 4900 subdivisions in the area, the access roads created at subdivision could not be unilaterally claimed or built upon by the Defendants.

p. 4
03

Whether the Plaintiff was entitled to the reliefs sought, including damages and injunction for trespass on other plots

Holding

Only the prayer for removal of structures on the access roads and costs were merited; trespass on other plots was not proved

Reasoning

Trespass requires an unjustifiable intrusion upon land in possession of another. The Defendants admitted building on the access road, justifying removal of the structures. However, the Plaintiff led no evidence of encroachment on other plots, so the injunction, general damages, aggravated damages and mesne profits claims failed. The Plaintiff, being partially successful and the successful party on the main prayer, was awarded costs.

p. 4

Legal principles established

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  • Submissions cannot take the place of evidence; parties are bound by their pleadings and cannot introduce new issues at submissions stage
  • Locus standi signifies a right to be heard; a person must have sufficiency of interest to sustain standing to sue
  • Alteration or combination of access roads requires the Registrar's or the Board's approval under due process; a proprietor cannot unilaterally claim land set aside as access roads at subdivision

Court orders

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  1. 1.Judgment entered for the Plaintiff against the Defendants jointly and severally in terms of prayers No. (a) and (e) only - removal of all structures, buildings and other installations trespassing on the access roads, and costs of the suit

Authorities

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Legislation

  • Land Registration ActSections 6(4), 16(1), 22(1)
  • Public Roads and Roads of Access ActSection 14(1) and (2)
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (5)

  • Daniel Toroitich Arap Moi & Another vs Mwangi Stephen Murithi & Another
    (2014) eKLR
  • Joseph Mbuta Nziu vs Kenya Orient Insurance Company Ltd
    [2015] eKLR
  • Adetoun Oladeji (Nig) Ltd vs Nigeria Breweries Plc
    S.C. 91/2002
  • Law Society of Kenya vs Commissioner of Lands & Others
    Nakuru High Court Civil Case No. 464 of 2000
  • Alfred Njau and Others vs City Council of Nairobi
    (1982) KAR 229
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim concerning land, trespass and encroachment on access roads (Plaint dated 18th September, 2017)

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, "Alli Juja Farmers Co. Ltd v Francis Gatua & another [2020] KEELC 2122 (KLR)", Case Analysis (2020). Not stated in the judgment (Plaint dated 18th September, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2122/eng@2020-06-15

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