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ELCDismissedEnvironment & Land Case 814 of 2005· [2022] KEELC 13609 (KLR)

Elias M Mategwa & 5 others (Suing on their behalf and on behalf of the Biafra Residents Association) v City Council of Nairobi & another

Environment and Land Court
13 October 2022
4,140 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Environment and Land Court dismissed Biafra residents' 17-year-old claim that Nairobi's City Council held their estate land in trust, because they couldn't prove it.

What this practically means

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Executive summary

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Six residents of Biafra Estate (Pumwani Relief Scheme), suing representatively for the Biafra Residents Association, sued the City Council of Nairobi and the Trustees of the Salvation Army. They sought declarations that the Council held LR 209/7259 in trust for them and that its lease of LR 209/7259/231 to the Salvation Army for a church breached that trust, plus revocation of that lease. The Council pleaded that a later Part Development Plan allocated the plot for church purposes; the Salvation Army denied any lease condition restricting the land to residential use, asserting the church was ancillary and that the suit was res judicata of HCCC 1111 of 1994. Only PW1 testified; the defendants tendered no evidence. The court framed three issues: limitation, trust, and revocation of the lease. It declined to entertain limitation, raised for the first time at submissions after 17 years and never pleaded. On the merits, it held the plaintiffs failed to prove the trust or fraud: no planning map or agreement was produced, the drawing exhibited had no LR number or provenance, and the tenants and the 2nd defendant acquired their leases in the same manner, converting the land from public to private. The suit was dismissed with each party bearing their own costs. The court also noted, without deciding, that the res judicata plea vis-à-vis HCCC 1111 of 1994 was not adequately canvassed.

Key legal issues

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01

Limitation

Holding

The limitation defence was improperly raised for the first time at submissions and was not entertained

Reasoning

The 2nd defendant never pleaded limitation in its defence, the agreed issues filed in 2007 did not raise it, and it was mute at trial. Raising it only at submissions after 17 years denied the plaintiffs an opportunity to respond, so the court declined to entertain it.

02

Trust and fraud

Holding

Plaintiffs failed to prove the 1st defendant held the land in trust or that the 2nd defendant acquired its lease by fraud

Reasoning

PW1 did not avail the planning map for the mother title to prove the suit plot was meant for shops, parking and gardens; the drawing produced had no LR number or provenance. No agreement between the 1st defendant and plaintiffs was produced; tenants contracted individually. Tenants and the 2nd defendant acquired their portions similarly, and issuance of leases converted the land to private land.

03

Nature of the suit land

Holding

The suit land was private land, having been delineated from public land upon issuance of leases

Reasoning

The certificate of subdivision approved subdivision into 216 plots and various persons, including the 2nd defendant, acquired subsequent leases. The allocation to the 2nd defendant was not a different subdivision from that of the tenants, so the land was private alienated land rather than public land held in trust.

p. 8

Legal principles established

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  • A party asserting facts must prove them even where the opposing party tenders no evidence
  • Limitation raised for the first time at submissions after a long hiatus may be declined as improperly raised

Court orders

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  1. 1.The plaintiffs' suit is dismissed
  2. 2.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Limitation of Actions Actsection 7
  • Evidence Actsections 107-109
  • Government Lands Act (repealed)

Cases cited (15)

  • Mohamed Bashir Abdulaziz v Monarch Developers Limited & 2 others [2022]

    Privity - plaintiffs cannot breach terms of agreements they were not privy to

  • Savings & Loans (K) Ltd v Kanyenje Karangaita Gakombe & another [2015] eKLR

    Privity of contract

  • Charles M. Waihanya & 2 others v Mary Wanjiku Njoroge & 3 others [2017] eKLR

    Locus standi

  • Free Pentecostal Fellowship in Kenya v Kenya Commercial Bank [1992] KLR 354

    Locus standi

  • St Mary School, Nairobi v Josphat Gitonga Kabugi, Nairobi (Milimani) HCCC No 65 of 2004

    Locus standi

  • Kituo Cha Sheria v John Ndirangu Kariuki & another (2013) eKLR

    Locus standi

  • Samuel Ndirangu & 141 others v County Government of Baringo & 2 others (2018) eKLR
  • Arthi Highway Developers Limited v West End Butchery Limited & 6 others (2015) eKLR
  • Christopher Ndaru Kagina v Esther Mbandi Kagina & another (2016) eKLR
  • Mutsonga v Nyati [1984] KLR 425
  • Koinange & 13 others v Koinange (1986) KLR 23
  • Njuwangu Holdings Ltd v Langata Kpa Nairobi & 5 others (2014) eKLR
  • Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] eKLR

    Standard of proof on a balance of probabilities

  • Miller v Minister of Pensions [1947] 2 ALL ER 372

    Balance of probabilities standard

  • Samson S Maitai & another v African Safari Club Limited & another [2010] eKLR

    Meaning of proof; burden lies on the party asserting

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (Environment and Land Court Act)

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, "Elias M Mategwa & 5 others (Suing on their behalf and on behalf of the Biafra Residents Association) v City Council of Nairobi & another", Case Analysis (2022). Environment & Land Case 814 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13609/eng@2022-10-13

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