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ELCPartially AllowedEnvironment & Land Case 532 of 2010· [2022] KEELC 15625 (KLR)

Twin Properties Investment Limited v Kasarani Settlement Limited (Formerly Known as Kasarani Resettlement Project) & 2 others

Environment and Land Court of Kenya
8 December 2022
6,707 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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A Nairobi land buyer lost a 12-year ownership battle because she couldn't trace her plot's ownership history back to its original source with documents.

What this practically means

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Executive summary

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In this first-instance Environment and Land Court ruling, the plaintiff claimed to be the legal and equitable owner of plot No 44 on LR No 14235, Kasarani, having purchased it in 2005 from Simon Nyoro Ngugi, who allegedly acquired it in 2002 from Kasarani Resettlement Project, said to be the predecessor of the 1st defendant. The plaintiff sought special damages of Kshs 7,296,000 following demolition of its building, declarations, injunctions and damages. The 1st and 2nd defendants countered that the 1st defendant was incorporated in 2007, acquired LR 14235 by public auction in 2007/2008, and sold plot 44 to the 2nd defendant in 2010 for Kshs 3 million; they counterclaimed for declarations and injunctions. Justice LN Mbugua framed two issues: legitimate ownership of plot 44 and available relief with costs. Applying the burden of proof and the law on unregistered land requiring an unbroken documentary chain to the root of title, the court found the larger parcel belonged to Research and Development Forum until November 2007, so neither entity could have allotted plot 44 in 2002/2005, and no evidence proved the Resettlement Project became the 1st defendant. Discrepancies in Simon Nyoro's acquisition and the plaintiff's conduct - filing suit while already sued in CMCC No 3552 of 2010 and building without approvals - weighed against it. The plaintiff's suit was dismissed; the counterclaim was allowed with a declaration that the 2nd defendant is the legitimate owner, a permanent injunction against the plaintiff, and Kshs 2,000,000 damages for trespass. Costs were awarded to the 1st and 2nd defendants only.

Key legal issues

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01

Ownership of plot No 44 as between plaintiff and 2nd defendant

Holding

The 2nd defendant is the legitimate owner; the plaintiff's claim is unfounded

Reasoning

The larger parcel LR 14235 belonged to Research and Development Forum until November 2007, so neither the 1st defendant nor Kasarani Resettlement Project could have allotted plot 44 in 2002/2005. No evidence showed the Resettlement Project became the 1st defendant, incorporated only in 2007. The 2nd defendant paid Kshs 3 million evidenced by bankers' cheques and receipt.

02

Burden of proof

Holding

He who alleges must prove; the plaintiff failed to discharge the burden

Reasoning

Relying on section 107 of the Evidence Act and Jennifer Nyambura Kamau, the court held the plaintiff, who claimed ownership by purchase, bore the burden of proving its claim and its root of title, which it failed to do.

p. 9
03

Trespass and damages

Holding

The plaintiff unlawfully trespassed; damages for trespass of Kshs 2,000,000 awarded to the 2nd defendant

Reasoning

Having found the 2nd defendant the legitimate owner and the plaintiff's construction unjustified and without approvals, the court exercised its discretion to award general damages for trespass, pegged at Kshs 2,000,000, inclusive of the debris issue.

04

Credibility and conduct of parties

Holding

Discrepancies in how Simon Nyoro acquired the plot, and the plaintiff's conduct in filing suit while already sued in CMCC No 3552 of 2010 and building without approvals, undermined the plaintiff's case

Reasoning

PW2 and PW3 gave inconsistent accounts of Simon Nyoro's acquisition (purchase, presidential scheme, squatter). The plaintiff filed this suit months after being sued in the magistrates' court, which the court found was meant to scuttle those proceedings.

p. 11

Legal principles established

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  • Certificates of ownership over unallocated/unregistered plots do not confer proprietorship but are analysed with the whole evidence to determine a claimant's interest
  • Proof of ownership of unregistered land requires an unbroken documentary chain leading to the root of title, on a balance of probabilities

Court orders

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  1. 1.The suit filed by the plaintiff is dismissed
  2. 2.The counterclaim of the 1st and 2nd defendants is allowed
  3. 3.Declaration that the 2nd defendant is the legitimate owner of Plot No 44 on Parcel LR No 14235
  4. 4.Permanent injunction restraining the plaintiffs from interfering with Plot No 44 in Parcel LR No 14235
  5. 5.Damages for trespass of Kshs 2,000,000 awarded to the 2nd defendant against the plaintiff
  6. 6.Plaintiffs condemned to pay costs of the suit to the 1st and 2nd defendants only; no costs awarded to the 3rd defendant

Authorities

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Legislation

  • Evidence Actsection 107
  • Evidence Actsection 109
  • Land Registration Actsections 24 and 25

Cases cited (10)

  • Jennifer Nyambura Kamau v Humphrey Mbaka Nandi
    [2013] eKLR

    He who alleges bears the burden of proving the case

  • Attorney General & 6 others v Mohamed Balala & 11 others
    [2014] eKLR

    Court may decide a suit on materials actually before it where a party fails to prove its claim

  • Salem Ahmed Hasson Zaidi v Faud Hussein Humeidan
    [1960] EA 92

    Decision on available materials has force of a decree on the merits notwithstanding a party's defaults

  • Danson Kimani Gacina & another v Embakasi Ranching Company Ltd
    [2014] eKLR

    Proof of ownership of unregistered land requires an unbroken chain of documents to the root of title

  • Fleetwood Enterprises Ltd v Kenya Power & Lighting Co Ltd
    [2015] eKLR

    Award of damages for trespass is discretionary

  • Habiba Ali Mursal & 4 others v Mariam Noor Abdi
    [2018] eKLR

    Cited by 1st and 2nd defendants on injunction being overtaken by events

  • Moses M Wairimu & 24 others v Kenya Power & Lighting Co Ltd & another
    [2020] eKLR

    Cited by 1st and 2nd defendants on injunction

  • Joseph Oduor Anode v Kenya Red Cross Society
    [2012] eKLR

    Cited by 1st and 2nd defendants on injunction

  • Park Towers v John Mithamo Njika et all
    [2014] eKLR

    Cited by 3rd defendant

  • Nakuru Industries Limited v SS Mehata & Sons
    [2016] eKLR

    Cited by 3rd defendant

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, "Twin Properties Investment Limited v Kasarani Settlement Limited (Formerly Known as Kasarani Resettlement Project) & 2 others", Case Analysis (2022). Environment & Land Case 532 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15625/eng@2022-12-08

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