Morris Gitau Kihuga & another v County Government of Uasin Gishu [2021] KEELC 1169 (KLR)
The bottom line
#The Environment and Land Court ordered Eldoret County to approve a landowner's building plan within 30 days, demolish its own structures on private land, and pay costs.
What this practically means
#Executive summary
#Key legal issues
#Ownership of the suit land
The plaintiffs proved ownership on a balance of probabilities through a certificate of lease and official searches; no evidence rebutted their title
The plaintiffs produced the original certificate of lease, official search certificates before and after purchase, and explained the root of title from Stephen Gacii Gathongo. Section 26(1) of the Land Registration Act renders the certificate conclusive prima facie evidence of proprietorship. The defendant, though given opportunity, called no evidence to controvert the title.
Effect of defendant's failure to tender evidence
Uncontroverted plaintiff evidence is taken as proved on a balance of probability
Relying on Edward Muriga and North End Trading Co, the court held that pleadings unsupported by evidence have no probative value. The defendant squandered opportunities to file statements and documents and called no witness, leaving the plaintiffs' evidence unchallenged and credible.
Defendant's statutory duty regarding the development plan application
The defendant was duty bound to approve or reject the plan with reasons; its silent failure was unjust and unfair
Counsel invoked sections 31-34 of the repealed Physical Planning Act 1996; the defendant neither approved nor gave reasons for rejection. Authorities (Kumenda; Wilson Masila Muema) support compelling a county to grant development approvals. The defendant also disobeyed the status quo order by erecting structures.
Legal principles established
#- A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud, misrepresentation, or illegal/unprocedural acquisition
- Where a defendant fails to adduce evidence, pleadings remain mere unsubstantiated statements and the plaintiff's uncontroverted evidence is believed
- A planning authority is under a duty to either approve or reject a development plan with reasons
Court orders
#- 1.A declaration that the defendant's conduct in failing to deal with the plaintiffs' application for approval of a plan for the construction of a perimeter wall is unjust and unfair
- 2.A declaration that the defendant has no legal basis or right to remove construction materials from land reference number Eldoret Municipality Block 13/335
- 3.Demolition of structures put up by the defendant on the suit land and eviction
- 4.The defendant to approve the plan for construction of a perimeter wall in line with the existing laws and regulations on development within 30 days from the date of service of the Decree
- 5.Costs to the plaintiffs
- Jurisdiction invoked
- Original civil suit under the plaint procedure (Civil Procedure Act/Environment and Land Court jurisdiction over land); no specific constitutional provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Morris Gitau Kihuga & another v County Government of Uasin Gishu [2021] KEELC 1169 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1169/eng@2021-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.