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ELCDismissedELC Appeal No. 1 of 2018 (Formerly Machakos ELC Appeal No. 197 of 2012)· [2020] KEELC 2615 (KLR)

Susan Wanjiru & another v Titus Tito & 2 others [2020] KEELC 2615 (KLR)

Environment and Land Court
18 May 2020
COChristine Ochieng
2,923 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled you cannot claim ownership of a plot that doesn't exist on the ground, no matter what paperwork you hold.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kajiado from the judgment of Hon. S. O Temu, Senior Resident Magistrate, in Kajiado CMCC No. 110 of 2008, in which the Appellants' suit seeking a declaration of ownership of plot No. 342 Ongata Rongai Trading Centre Kware, eviction of the Respondents, mesne profits and an injunction was dismissed and judgment entered for the Respondents. The Appellants, relying on a Transfer dated 27th September 2005, claimed to be bona fide holders of letters of allotment and first allottees, asserting the Respondents were trespassers. The Respondents maintained they were original allottees of plot No. 888, having occupied the plot since 1972 and having been formally allotted it in 2005 during the Ol Kejuado County Council's settlement of informal settlers. The court framed three issues: ownership of the disputed plot, identity of the first allottee, and whether the appeal was merited. It found the Appellants failed to discharge their burden of proof: they did not summon the vendor or the allotting authority, their plot did not appear on the map, and the Council's own correspondence confirmed they were encroaching on plot No. 888. Applying Benja Properties and related authorities, the court upheld the Respondents' Letter of Allotment, found the Gitwany Investments case on double allocation distinguishable, and held that the trial magistrate did not err, including in ordering eviction. The appeal was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the Appellants proved ownership of and first allotment over the disputed plot

Holding

The Respondents were the owners and first allottees of the disputed plot (No. 888); the Appellants held documents for a non-existent plot (No. 342) and failed to discharge their burden of proof.

Reasoning

The Appellants produced only a Transfer Letter dated 27th September 2005 and did not summon the vendor or the allotting authority to confirm the plot's site. The Respondents produced their Letter of Allotment for plot No. 888, receipts for rates, a map from the County Surveyor, and a witness from the Plots Committee confirming occupation since 1972. The Council's own letters of March and April 2008 confirmed the Appellants were encroaching on plot No. 888.

p. 3
02

Whether the learned trial Magistrate erred in ordering eviction of the Appellants

Holding

The Magistrate did not err, since the Respondents were already on the plot and had erected structures thereon, and the Appellants' claim related to a non-existent plot.

Reasoning

Given the finding that the Respondents were the rightful owners and first allottees and were already in possession with structures, the eviction order against the Appellants was justified. The Appellants had paid rates for a plot that, per the map produced, did not exist on the ground.

p. 4

Legal principles established

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  • An interest in land cannot be allotted, alienated or transferred where the specific parcel of land allotted is not in existence; allotment is a transaction in rem attaching to a specific parcel.
  • Title to land comes into existence after issuance of a letter of allotment, meeting the conditions stated therein and actual issuance of the title document.
  • The rights of a person in possession or occupation of land are equitable and binding on the land.

Court orders

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  1. 1.The Appeal is dismissed
  2. 2.Costs of the Appeal are awarded to the Respondents

Authorities

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Legislation

  • Land Registration Actsection 24(a)
  • Land Registration Actsection 26(1)
  • Constitution of KenyaArticle 40

Cases cited (13)

  • Willy Kipsongok Morogo Vs Albert K. Morogo
    (2017) eKLR
  • Gitwany Investment Ltd Vs Taj Mall Ltd & 3 Others
    HCC No. 1114 of 2002
  • Munyu Maina Vs Hiram Gathiha Maina
    Civil Appeal No. 239 of 2009
  • Kenya Airports Authority V Mitu Bell Welfare Society & 2 Others
    (2016) eKLR
  • Daudi Kiptugen Vs Commissioner of Lands & 4 others
    (2015) eKLR
  • Dr. Joseph N. K. arap Ngok V Justice Moijo Ole Keiwua and 4 Others
    Civil Application No. NAI 60 of 1997
  • Wreck Motor Enterprises Vs Commissioner of Lands & 3 Others
    (1997) eKLR
  • Benja Properties Limited V Syedna Mohammed Burhannudin Sahed & 4 others
    (2015) eKLR
  • Embakasi Properties Limited & Another V Commissioner of Lands & Another
    (2019) eKLR
  • Mwangi & Another Vs Mwangi
    KLR 328
  • Henry Muthee Kathurima Vs Commissioner of Lands & Another
    (2015) eKLR
  • Mathew Ndau Kiambati v James Gichuki Magondu & another
    [2018] eKLR
  • Gitwany Investments Ltd. vs. Jajmal Limited and others
    (2006)2 E.A 76(HCK)
On appeal from
Senior Resident Magistrate's Court at Kajiado
Kajiado CMCC No. 110 of 2008
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' courts in land matters

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, "Susan Wanjiru & another v Titus Tito & 2 others [2020] KEELC 2615 (KLR)", Case Analysis (2020). ELC Appeal No. 1 of 2018 (Formerly Machakos ELC Appeal No. 197 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2615/eng@2020-05-18

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