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ELCDismissedEnvironment & Land Case 155 of 2019· [2023] KEELC 17790 (KLR)

Wetangula v County Government of Nakuru

Environment and Land Court
29 May 2023
5,479 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a landowner's claim because his plot's original allocation lacked an approved Part Development Plan, making his title invalid from the start.

What this practically means

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Executive summary

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The plaintiff sued the County Government of Nakuru seeking a declaration that Plot No. 606 Industrial Area, Naivasha (14m x 30m) belonged to him, permanent injunctions against interference with the plot, and alternatively compensation by way of alternative land and damages. He claimed he purchased the plot in 2006 from Irene N. Mathenge, who was allotted it in 1991, obtained council approvals to build, and was later served with a notice to remove an alleged 4.6-metre encroachment onto the Stadium Road reserve under approved PDP R59/95/15. Interim injunction issued 17/12/2019, but the defendant demolished the structures in March 2020 during construction of Stadium Road under the KUSAP programme. The defendant denied interest in ownership, asserting the plot encroached on a road reserve and did not exist on the approved PDP. The court framed a single issue: whether the plaintiff was entitled to the prayers sought. Applying Nelson Kazungu Chai v Pwani University, it held a PDP must be approved by the Commissioner of Lands before allotment; the plaintiff's PDP was unapproved, uncertified and post-dated the allotment, so Mathenge had no valid interest to pass. The land was also already alienated for a public road and could not lawfully be allocated. Although the plaintiff held development approvals and paid rates, he failed to discharge the burden under section 107(1) of the Evidence Act of proving proper acquisition. Damages were refused to avoid rewarding developments on illegally acquired land. The suit was dismissed with costs to the defendant.

Key legal issues

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01

Whether the plaintiff proved valid root of title to Plot No. 606 Industrial Area

Holding

No - the allotment to Irene N. Mathenge preceded approval of any PDP, rendering the title documents invalid ab initio and incapable of passing an interest to the plaintiff

Reasoning

Relying on Nelson Kazungu Chai v Pwani University, the court held a PDP must be approved by the Commissioner of Lands before allotment. The plaintiff's PDP lacked approval number, signatures, dates and certification, and post-dated the allotment letter. The defendant's certified PDP R59/95/15A showed the land was alienated for a public road, which could not be allocated.

p. 8
02

Whether the plaintiff was entitled to damages for the demolition despite holding approvals to develop

Holding

No - approvals to develop do not cure an invalid root of title; compensation would set a bad precedent

Reasoning

Although the plaintiff obtained building approvals and paid rates, the court found he failed to prove proper acquisition of the suit property. Granting damages would encourage collusion between developers and public officers to procure approvals over illegally acquired land in the expectation of compensation upon demolition.

Legal principles established

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  • A Part Development Plan must be drawn and approved by the Commissioner of Lands before any unalienated Government land can be allocated; an allotment letter issued before approval of the PDP is invalid
  • The Commissioner of Lands had no power under the Government Lands Act to allocate land already alienated for a public road
  • He who alleges must prove; the plaintiff bears the burden under section 107(1) of the Evidence Act

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Costs of the suit awarded to the defendant

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 40(6)
  • Evidence ActSection 107(1)
  • Land Registration ActSection 26
  • Traffic ActSection 91(1)
  • Physical and Land Use Planning ActNo. 13 of 2019
  • Government Lands Act (repealed)

Cases cited (12)

  • Nelson Kazungu Chai & 9 others v Pwani University College
    [2014] eKLR

    A PDP must be approved by the Commissioner of Lands before allotment of unalienated Government land

  • African Line Transport Co. Ltd vs The Hon. AG
    Mombasa HCCC No. 276 of 2013

    Planning comes first, then surveying; allotment letter accompanied by a numbered PDP

  • Keroche Industries Ltd vs Kenya Revenue Authorities & 5 others
    [2017] eKLR
  • Republic vs Kenya Revenue Authority ex-parte Shake Distributors Limited
    HC Misc Civil Application No. 359 of 2012
  • Republic v District Land Registrar Ex Parte Stanley Kiptanui Rop
    [2013] eKLR
  • Metropolitan PSV Saccos Limited Union & 25 others vs County of Nairobi Government & 3 Others
    [2013] eKLR
  • Pharis Ndung'u Chege & 4 Others v Attorney General & 4 Others
    [2018] eKLR
  • Henry Muthee Kathurima v Commissioner of Lands & another
    [2015] eKLR
  • Adan Abdirahani Hassan & 2 others v Registrar of Titles, Ministry of Lands & 2 Others
    [2013] eKLR
  • Five Forty Aviation Limited v Erwan Lanoe
    [2019] eKLR
  • Vivian Muia v Mzoori Limited
    [2017] eKLR
  • Republic v National Employment Authority & 3 Others Ex Parte Middle East Consultancy Services Limited
    [2018] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (Article 162(2)(b) Constitution; ELC 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, "Wetangula v County Government of Nakuru", Case Analysis (2023). Environment & Land Case 155 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17790/eng@2023-05-29

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