Khadondi v Charo

Environment and Land Court

8 November 2023

MOM.A. ODENY

2,518 words in judgment

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The bottom line

A Malindi court confirmed that a council-allocated squatter upgrading plot beats a land title whose deed plan pointed to the wrong location.

What this practically means

Executive summary

The Plaintiff sued for a declaration that he is the bona fide legal owner of unsurveyed plot no 9 under PDP ref no 55/MLD/5/2001 (Sabaki Squatter Upgrading Scheme), plus eviction and permanent injunction, alleging allocation by the then Malindi Municipal Council, possession since 1993, and a 2011 consent transferring S.K. Kenga's competing interest to him after a double allocation was discovered. The Defendant, registered proprietor of LR no 14034 Malindi (CR 52004), counterclaimed for vacant possession and an injunction, asserting the two parcels overlapped. Each party called a surveyor. PW2's report showed the Defendant's deed plan described a different property - a subdivision in Kivuhiu, Mayungu, about 8kms from Malindi - and that the acreage on the title did not match the physical location. DW2, the Defendant's own surveyor, agreed with findings in PW2's report and confirmed deed plan no 401352 referenced a portion in Kajiado. The court held the Plaintiff proved legal and beneficial ownership, uncontroverted by the Defendant, and that the Defendant's title was defective: he produced no allotment letter or part development plan and did not follow the allocation procedure under section 3 of the then Government Lands Act, under which only the President through the Commissioner of Lands could alienate unalienated government land. The Plaintiff's suit succeeded; the Defendant's counterclaim was dismissed. The court declared the Plaintiff bona fide legal owner, ordered the Defendant to vacate within 45 days failing which eviction would issue, granted a permanent injunction, and awarded the Plaintiff costs of both the suit and the counterclaim.

Key legal issues

Ownership of unsurveyed plot no 9 under the Sabaki Squatter Upgrading Scheme

Holding

Plaintiff proved legal and beneficial ownership through allocation by the Municipal Council and the consent transferring S.K. Kenga's interest

Reasoning

The Plaintiff was allocated the plot by the then Malindi Municipal Council and had been in possession since 1993. A double allocation to S.K. Kenga was resolved through a Council-brokered consent dated 12th January 2011 transferring Kenga's interest to the Plaintiff, supported by letters from the Commissioner of Lands and the Municipal Council. The Defendant never controverted this evidence.

Validity of the Defendant's title to LR no 14034 Malindi

Holding

The Defendant's title was defective; the deed plan did not tally with the survey plan and the parcel was located elsewhere

Reasoning

Both surveyors agreed that deed plan no 401352 referenced a portion in Kajiado, that portion no 14034 was a subdivision of another portion located in Kivuhiu/Mayungu, and that the acreage on the title did not correspond to the physical location. The Defendant produced no allotment letter or part development plan and did not follow the statutory allocation procedure.

p. 4

Legal principles established

Only the President through the Commissioner of Lands could make grants or dispositions over unalienated government land under the Government Lands Act
A valid allocation of government land requires an approved part development plan, allotment letter, cadastral survey and a deed plan tallying with the survey plan

Court orders

1.Declaratory order that the Plaintiff is the bona fide legal owner of unsurveyed plot no 9 delineated in development plan no 150 (departmental reference no 55/MLD/5/2001) allocated under the auspice of Sabaki Squatter Upgrading
2.Defendant to vacate the suit property within 45 days failing which an eviction order to issue and the court bailiff assisted by the OCS Malindi to hand vacant possession to the Plaintiff
3.Permanent injunction against the Defendant from interfering with the suit land or the Plaintiff's quiet enjoyment of it
4.Costs of the suit to the Plaintiff
5.Defendant's counterclaim dismissed with costs

Authorities

Legislation

Government Lands Act (then in force)Section 3
Civil Procedure RulesOrder 21 [1]

Cases cited (2)

Charterhouse Bank Limited (under statutory management) v Frank N. Kamau
[2016] eKLR
Plaintiff had adduced uncontroverted evidence to prove ownership of the suit land
Samuel Otieno Otieno v Municipal Council of Malindi
Civil Appeal no 135 of 2012
Guidance on disputes relating to the Sabaki Squatter Upgrading Scheme

Jurisdiction invoked: Original civil jurisdiction of the Environment and Land Court over disputes relating to ownership and occupation of land

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Khadondi v Charo", Case Analysis (2023). Civil Suit 86 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21451/eng@2023-11-08

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