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ELCDismissedELC Case No. 243 of 2016· [2021] KEELC 4671 (KLR)

Bahati Charo v Jackson Nzaro & 4 others [2021] KEELC 4671 (KLR)

Environment and Land Court
22 January 2021
3,594 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiff, Bahati Charo, sued the Chairman, Secretary and Treasurer of the Kalolo Kibaoni Baya Magonzi Upgrading Project (KKB) together with the 4th and 5th Defendants, seeking a declaration that the sub-division of her Plot No. 84 at Kibaoni, Kilifi, creating Plot No. 83 was null and void, a permanent injunction, vacant possession, costs and interest. She claimed to have purchased 28 cashew nut trees on the land in 1978, developed it, and that the Project officials unlawfully hived off a portion later allocated to the 4th Defendant, who sold it to the 5th Defendant. The Defendants denied the claim: the Project contended the land was originally allotted to Maendeleo ya Wanawake in 1991 and that the Plaintiff was herself allocated Plot No. 84 through the Project in 2003, while the 5th Defendant counterclaimed as purchaser in possession of Plot No. 83, seeking a permanent injunction against the Plaintiff. At trial, the court found the Plaintiff's 1978 agreement conveyed only the cashew nut trees without identifying or granting possession of any land, and that the vendor and witnesses were not called. The Plaintiff's own documents showed she recognised the Project's mandate from 2003, paid the requisite fees and received a Clearance Certificate for Plot KB/84 in 2010. The court found both plots 83 and 84 emanated from the Project's lawful sub-division of the original allotment, and that Plot No. 83 was not hived off Plot No. 84. The Plaintiff's claim was dismissed with costs and judgment entered for the 5th Defendant on his Counterclaim with costs.

Key legal issues

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01

Whether the Plaintiff proved ownership of Plot No. 84 prior to the KKB sub-division

Holding

She did not; her 1978 agreement conveyed only cashew nut trees, not identified land, and her own Plot No. 84 derived from the Project's sub-division of land allotted to Maendeleo ya Wanawake

Reasoning

The sale agreement produced did not specify the parcel or its extent, and neither the vendor nor the witnesses corroborated the location of the trees. The Plaintiff herself knew the land was Government land and recognised the KKB Project's mandate from 2003, paying fees and receiving a Clearance Certificate for Plot KB/84 in 2010, showing her title flowed from the Project rather than from her 1978 purchase.

p. 4
02

Whether Plot No. 83 was unlawfully hived off Plot No. 84

Holding

No; both plots arose from the Project's lawful sub-division of the original 0.2226 Ha parcel allotted to Maendeleo ya Wanawake in 1991

Reasoning

The Project officials gave clear evidence of the survey and sub-division creating plots 81, 82, 83, 84, 87 and 514, and of Plot 83's allocation to the 4th Defendant and subsequent transfer to the 5th Defendant. The Plaintiff was uncertain of her plot's measurements before and after the alleged sub-division and admitted she never used a surveyor, undermining her assertion of encroachment.

p. 4
03

Whether the 5th Defendant proved his Counterclaim

Holding

Yes, on a balance of probabilities; he purchased Plot KKB/83 for value, was transferred the plot and issued a Clearance Certificate

Reasoning

The 5th Defendant paid Kshs 1.6 Million to the 4th Defendant, took immediate possession, paid Kshs 20,000 at the KKB offices and received a Clearance Certificate on 1st August 2016. The Project's register recorded the transfers. The court found the Defendants acted properly within the law and that the Plaintiff, not the 5th Defendant, had encroached by erecting a pit latrine on Plot No. 83.

p. 5

Legal principles established

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  • A party must prove ownership or a better right to land on the evidence; a purchase of trees on an unregistered parcel, where the agreement does not identify or convey the land, does not establish title as against allocations made through a lawful upgrading scheme
  • Where a plaintiff's claim fails, a defendant's counterclaim may be proved on a balance of probabilities

Court orders

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  1. 1.The Plaintiff's suit is dismissed with costs
  2. 2.Judgment entered for the 5th Defendant in terms of his Counterclaim with costs
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over disputes relating to land (originating suit; no specific provision cited in the judgment)

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, "Bahati Charo v Jackson Nzaro & 4 others [2021] KEELC 4671 (KLR)", Case Analysis (2021). ELC Case No. 243 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4671/eng@2021-01-22

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