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ELCAllowedNot stated in the judgment as provided· [2021] KEELC 1169 (KLR)

Morris Gitau Kihuga & another v County Government of Uasin Gishu [2021] KEELC 1169 (KLR)

Environment and Land Court
2 November 2021
1,651 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The plaintiffs, registered proprietors of leasehold interest over land reference Eldoret Municipality Block 13/335 acquired through purchase from Stephen Gacii Gathongo, sued the County Government of Eldoret seeking declarations that the county's failure to approve their perimeter wall construction plan was unjust and unfair, that the county had no right to remove their construction materials from the land, and demolition of structures the county had erected on the plot, plus costs. The plaintiffs' sole witness produced the original certificate of lease, official searches and photographs proving ownership, and testified that the defendant neither approved nor rejected the submitted plan nor gave any reasons. The defendant filed a defence but called no evidence. The court applied section 26(1) of the Land Registration Act on conclusiveness of title, and the authorities of Edward Muriga and North End Trading Co. holding that unchallenged plaintiff evidence, unsupported by any defence evidence, proves the case on a balance of probability. Following Republic v Clerk Municipal Council of Kisii Ex-Parte Kumenda and Wilson Masila Muema v County Government of Machakos, the court held the defendant was under a duty to approve or reject the development plan with reasons and noted the defendant had disobeyed the interim status quo order by erecting structures. Finding the plaintiffs' case proved, the court declared the defendant's conduct unjust and unfair, declared the defendant had no right to remove construction materials, ordered demolition of the structures and eviction, directed the defendant to approve the perimeter wall plan within 30 days of service of the decree, and awarded costs to the plaintiffs. The suit was entirely allowed.

Key legal issues

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01

Ownership of the suit land

Holding

The plaintiffs proved ownership on a balance of probabilities through a certificate of lease and official searches; no evidence rebutted their title

Reasoning

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.

p. 2
02

Effect of defendant's failure to tender evidence

Holding

Uncontroverted plaintiff evidence is taken as proved on a balance of probability

Reasoning

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.

p. 2
03

Defendant's statutory duty regarding the development plan application

Holding

The defendant was duty bound to approve or reject the plan with reasons; its silent failure was unjust and unfair

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 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. 3.Demolition of structures put up by the defendant on the suit land and eviction
  4. 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. 5.Costs to the plaintiffs

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Physical Planning Act 1996 (repealed)Sections 31-34
  • Physical Planning ActCap 286 Laws of Kenya (as cited in Kumenda)
  • Civil Procedure RulesOrder 21(1) (waived in delivery of ruling)

Cases cited (4)

  • Edward Muriga Through Stanley Muriga vs. Nathaniel D. Schulter
    Civil Appeal No. 23 of 1997
  • North End Trading Company Limited (Carrying on the Business under the registered name of Kenya Refuse Handlers Limited v City Council of Nairobi
    [2019] eKLR
  • Republic v Clerk Municipal Council of Kisii & 6 others Ex-Parte J. A. S. Kumenda & 2 others
    [2016] eKLR
  • Wilson Masila Muema v County Government of Machakos
    [2020] eKLR
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

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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, "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.