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ELCAllowedEnvironment & Land Case 51 of 2021 (Formerly Nyeri ELC Case No. 280 of 2015)· [2023] KEELC 15911 (KLR)

Ndegwa & 3 others (Filed for and on behalf of Likii Umoja Community Based Organization) v Muriuki & 3 others

Environment and Land Court
15 February 2023
ABA K Bor
1,187 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nanyuki court protected a community school's land rights, ruling that defendants who allege public land must prove it with evidence.

What this practically means

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Executive summary

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The four Plaintiffs, officials and founder of Likii Umoja Community Based Organization, sued the four Defendants seeking a perpetual injunction restraining them from ejecting the Plaintiffs from the management of a nursery and primary school established on Plot No. E3, Likii Settlement Scheme, and from evicting them from the property. The Plaintiffs alleged the property was allocated to them by the Municipal Council of Nanyuki on 30/5/2000 and that the Defendants and Nyumba Kumi operatives had threatened to mobilise the community to evict them and take over the project. The Defendants denied the claim, asserting the Plaintiffs had no locus standi and that the property was public land. At the hearing before Waithaka J on 22/10/2018, the 1st Plaintiff testified and produced the allocation letter, registration certificates for the organisation and its predecessor self-help group, education and health inspection reports, and correspondence confirming the school as a community project. He conceded no title deed had been issued for the plot. The Defendants called no witness. Bor J found the Plaintiffs had proved allocation and establishment of the school on a balance of probabilities, and that the Defendants' allegation of public land was unsupported by any evidence. The court issued a perpetual order restraining the Defendants, their agents or servants from ejecting the Plaintiffs or interfering with the running of the school on Plot No. E3 Likii, and awarded the Plaintiffs costs of the suit.

Key legal issues

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01

Whether the Plaintiffs proved allocation of and entitlement to Plot No. E3 Likii Settlement Scheme

Holding

The Plaintiffs proved on a balance of probabilities that they were allocated the suit property by the Municipal Council of Nanyuki on 30/5/2000 and established a school on it, justifying a perpetual injunction.

Reasoning

The 1st Plaintiff testified and produced the letter of allocation from the Municipal Council of Nanyuki addressed to Likii Nursery School, inspection reports by the Ministries of Education and Health confirming suitability of the school, and correspondence confirming the community project. The Defendants filed a defence alleging the property was public land and denying locus standi but called no witness, leaving the allegation unsupported.

p. 3
02

Effect of the Defendants' failure to adduce evidence

Holding

The Defendants' unsupported defence allegations could not displace the Plaintiffs' proved claim; the case was closed on the Plaintiffs' evidence alone.

Reasoning

The Defendants did not call any witness despite pleading that the Plaintiffs lacked locus standi and that the property was public land. The court noted a cited authority where a defendant who raised a defence but declined to testify was held liable, though that case was a running down claim and of limited assistance.

p. 2

Legal principles established

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  • A party who alleges that land is public land bears the evidential burden of supporting that allegation; failure to tender evidence means the claimant's case on a balance of probabilities stands.

Court orders

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  1. 1.An order restraining the Defendants, their agents or servants from ejecting the Plaintiffs or interfering with the running of the school on Plot No. E3 Likii
  2. 2.The Defendants to pay the costs of the suit to the Plaintiffs

Authorities

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Cases cited (1)

  • Douglas Mwangangi Ngutu v Charles Maingi Njeri and Joseph Mundia Kuria
    Nairobi High Court Civil Case 1853 of 1998

    Defendant held liable where he declined to give evidence on the defence raised; distinguished as a running down claim

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land (suit transferred from Nyeri ELC to Nanyuki ELC)

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, "Ndegwa & 3 others (Filed for and on behalf of Likii Umoja Community Based Organization) v Muriuki & 3 others", Case Analysis (2023). Environment & Land Case 51 of 2021 (Formerly Nyeri ELC Case No. 280 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15911/eng@2023-02-15

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