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ELCDismissedNot stated in judgment· [2020] KEELC 3856 (KLR)

Adan Hassan & another v AH (suing on his own behalf and that of FA-minor) [2020] KEELC 3856 (KLR)

Environment and Land Court
29 January 2020
2,807 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 confirmed that whoever first lawfully receives a land allotment keeps it, unless that allotment is validly cancelled first.

What this practically means

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Executive summary

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The respondents, AHH and the minor FA, sued the appellants in the magistrates' court seeking a permanent injunction restraining interference with Isiolo Residential Plots Nos. 76 and 79, having been allotted the plots in 1993 through public balloting by the Commissioner of Lands on behalf of the Isiolo County Council. The appellants, who claimed occupation since 2001 and 2006 respectively on the basis of council minutes, sale agreements and rate receipts, filed a joint defence asserting their own ownership. The trial magistrate dismissed their claim, finding insufficient proof of their ownership, and entered judgment for the respondents. On first appeal on eight grounds, the ELC at Meru, per Lucy N. Mbugua ELC Judge, re-evaluated the evidence in accordance with Selle v Associated Motor Boat Co. The court found the appellants' rate receipts related to plots 88, 91 and 110 rather than the suit plots, their council minutes did not mention the suit plots, and their sale agreements failed to identify the land sold and were marred by unauthenticated handwritten alterations. The respondents, by contrast, proved their 1993 allotment and payment of fees, and no evidence showed revocation. Applying Waas Enterprises Ltd and Rukaya Ali Mohamed, the court held allotted land is not available for reallocation unless the first allocation is validly cancelled. The trial magistrate was also right to disregard the county council report of 4.10.2011 as it had been expunged. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Burden of proof of ownership

Holding

The appellants failed to discharge the burden of proving ownership of the suit plots

Reasoning

Section 107(1) and (2) of the Evidence Act requires whoever desires a court to give judgment on asserted facts to prove them. The appellants' rate receipts related to plots 88, 91 and 110, not the suit plots 76 and 79; their council minutes did not mention the suit plots; and their sale agreements did not identify the land sold. The respondents proved allotment in 1993 and payment of the requisite fees.

p. 3
02

Effect of allotment letters

Holding

An allotment confers a right of proprietorship once conditions are met, and land allotted is not available for reallocation unless the first allocation is validly cancelled

Reasoning

Relying on Waas Enterprises Ltd v City Council of Nairobi and Rukaya Ali Mohamed v David Gikonyo Nambacha, the court held the respondents' 1993 allotment gave them the right to the plots. There was no evidence the allotment was revoked or unlawful; the respondents had commenced the process of acquisition.

p. 3
03

County council reports

Holding

The trial magistrate correctly declined to consider the council report of 4.10.2011 as it had been expunged from the record

Reasoning

Three council reports were filed; the first two were abandoned by consent and the final report dated 4.10.2011 was expunged by a ruling delivered on 22.5.2012. The magistrate could not consider an expunged document, particularly where each party embraced or opposed the reports only insofar as they favoured them.

p. 4

Legal principles established

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  • On a first appeal the court is duty bound to re-evaluate the facts afresh and come to its own independent findings and conclusions
  • Once land is allotted to a person and the allottee meets the conditions, it is not available for allocation to another unless the allotment is validly cancelled

Court orders

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  1. 1.The appeal is dismissed with costs to the respondents

Authorities

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Legislation

  • Evidence ActSection 107(1) and (2)
  • Evidence ActSection 112
  • Registration of Titles Act (repealed)Not specified
  • Registered Lands Act (repealed)Not specified

Cases cited (4)

  • Selle v Associated Motor Boat Co. & others
    [1968] E.A. 123
  • Waas Enterprises Ltd versus City Council of Nairobi & Another
    (2014) EKLR
  • Rukaya Ali Mohamed vs. David Gikonyo Nambacha & Another
    Kisumu HCCA No. 9 of 2004
  • John Mukora Wachichi & Others versus Minister of Lands & Others
    High Court Petition No. 82 of 2010
On appeal from
Magistrates' Court
Jurisdiction invoked
First appeal from the trial magistrates' court to the Environment and Land Court

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, "Adan Hassan & another v AH (suing on his own behalf and that of FA-minor) [2020] KEELC 3856 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3856/eng@2020-01-29

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