Joseph Mutua Zakayo v County Govt of Makueni & 9 others [2020] KEELC 2379 (KLR)
The bottom line
#A Kenyan landowner who paid for and held an allotment over a plot won Kshs 2.5 million after the county government and rivals illegally demolished his building.
What this practically means
#Executive summary
#Key legal issues
#Effect of failure to give statutory notice under the Government Proceedings Act
Non-compliance was not fatal; the County Government is a level of Government within s13A(1) but emerging access-to-justice jurisprudence prevails over rigid formalism
The court held s13A(1) GPA applies to County Governments as constitutionally recognized levels of Government and the Plaintiff gave no notice. However, relying on Majanja J's reasoning in the Kenya Bus Service case, the court found the old Walumbwa decision rigid, held access to justice under the Constitution requires looking beyond the dry letter of the law, and imposed the lesser remedy of denying costs.
Ownership of plot No. 290 Emali
The Plaintiff is the legal owner on a balance of probabilities; Makenzi's allotment lapsed for non-compliance and the plot was re-allocated to the Plaintiff
Both claimants failed to comply with allotment conditions within 30 days, but the County Council's verification committee in 2002 confirmed the Plaintiff's ownership, the County Government's computer database recorded him as owner, and the County Government waived the lapse of his offer by accepting his payment on 5th November 2002. Makenzi's widow acted only in 2015, 20 years after allotment and a decade after his death, making partial payment of Kshs 3,860 out of Kshs 10,527.
Responsibility for the demolition
The 1st (County Government), 9th and 10th Defendants are jointly and severally liable
PW4 was an eyewitness who saw the 9th Defendant supervise the demolition and was unshaken in cross-examination; his account was corroborated by the 10th Defendant's own admission that her brother-in-law and people from the County Government demolished the building. The County Government handled the dispute negligently, issuing an enforcement notice despite having approved the building plans, which catalysed the demolition.
Quantum of damages
Kshs 2,508,885/= awarded: Kshs 1,158,885/= actual damage per the unrebutted valuation report, Kshs 1,200,000/= loss of rental income over 40 months at Kshs 30,000/= per month, and Kshs 150,000/= general damages for trespass
The Plaintiff produced a valuation report assessing damage at Kshs 1,158,885 with no rebuttal by independent report. The projection of Kshs 30,000 monthly rental income was found reasonable, computed from January 2017 to April 2020. General damages for trespass were awarded in addition to proved loss, following Park Towers Ltd v John Mithamo Njika and Halsbury's principles on trespass damages.
Legal principles established
#- A letter of allotment does not confer property rights unless there is acceptance and payment within the stipulated time; a lapsed offer may, however, be waived by conduct of the allocating authority
- Non-compliance with the statutory notice requirement under section 13A(1) of the Government Proceedings Act is not fatal to a suit; the remedy is denial of costs, not striking out
- Where trespass is proved, general damages may be awarded without proof of specific loss
Court orders
#- 1.Suit against the 2nd to 8th Defendants dismissed with costs
- 2.Permanent injunction restraining the 1st, 9th and 10th Defendants from trespassing, entering, encroaching, changing the ownership records at the Makueni County Registry or Ardhi House, Nairobi, or interfering with the Plaintiff's occupation, possession and ownership of plot No. 290 Emali Town
- 3.An order that the 1st, 9th and 10th Defendants compensate the Plaintiff for loss and damage occasioned by the demolished structure
- 4.Judgment for Kshs. 2,508,885/= being general damages for trespass, loss of profits and illegal demolition, jointly and severally against the 1st, 9th and 10th Defendants
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over ownership of plot No. 290 Emali town and damages for trespass and demolition
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Owuor v Ouko & another (Environment and Land Appeal E038 of 2024) [2026] KEELC 3970 (KLR)[2026] KEELC 3970 (KLR)29 Jun 2026
Cite this brief
#Cite this brief
Caselaw, "Joseph Mutua Zakayo v County Govt of Makueni & 9 others [2020] KEELC 2379 (KLR)", Case Analysis (2020). Not stated in the judgment as provided (ELC Suit, Makueni). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2379/eng@2020-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.