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ELCPartially AllowedEnvironment and Land Case Civil Suit 774 of 2012· [2023] KEELC 21465 (KLR)

Bondeni Properties Company Ltd v Director, Ministry of Housing & 3 others

Environment and Land Court
9 November 2023
4,309 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Nairobi landowner won Kshs 9.2 million compensation for plots used for public toilets, but lost the right to evict.

What this practically means

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Executive summary

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The Plaintiff, Bondeni Properties Company Ltd, sued the Director, Ministry of Housing, the Attorney General, Starehe Constituency Development Fund and Nairobi County Government seeking vacant possession of four plots (L.R Nos 209/11770-11773), alternatively payment of their market value, mesne profits, supervised eviction, damages for trespass, costs and interest. It claimed the Ministry trespassed in 2009 and constructed structures on its plots, which it acquired under an Indenture dated 5th April 1995. The 1st and 2nd Defendants denied ownership was proved, asserting they only funded construction while the 3rd and 4th Defendants identified the site; the 4th Defendant denied the existence of the suit properties. The 3rd Defendant did not participate. The court framed two issues: whether the Plaintiff proved its case on a balance of probabilities, and the appropriate reliefs. Relying on the Indenture, certificate of postal search and Deed Plans, the court found the Plaintiff established proprietorship of the suit plots as sub-divisions of L.R 367/AXI/1913. However, because the structures are public toilets benefiting the public, the court declined vacant possession and awarded compensation instead: Kshs 9,200,000 (Kshs 8,000,000 for four plots plus 15% uplift), with interest at court rates from filing. The mesne profits claim failed for want of specific proof. The 1st and 2nd Defendants were held not liable, liability falling jointly and severally on the 3rd and 4th Defendants, who were also ordered to bear the costs of the suit.

Key legal issues

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01

Whether the Plaintiff proved ownership of the suit plots as sub-divisions of L.R 367/AXI/1913

Holding

Yes - on a balance of probabilities the Plaintiff established proprietorship of the suit properties as sub-divisions of L.R No 367/AXI/1913

Reasoning

The Indenture of Conveyance dated 5th April 1995 and the certificate of postal search both referenced L.R 367/AXI/1913, whose ownership by the Plaintiff was undisputed. The Deed Plans showed the suit property lay within a registered sub-division emanating from that parcel. There being no evidence to the contrary, proprietorship was established on a balance of probabilities.

p. 7
02

Whether the Plaintiff was entitled to vacant possession

Holding

No - the court opted for compensation instead, since the structures are public toilets serving a public utility

Reasoning

The suit property has public toilets constructed by the Defendants, a utility that benefits the public. As the Plaintiff was amenable to an alternative remedy of compensation, the court declined vacant possession and awarded the value of the land instead.

p. 8
03

Whether the Plaintiff was entitled to mesne profits

Holding

No - the claim failed for lack of specific pleading and proof

Reasoning

Mesne profits are defined in Section 2 of the Civil Procedure Act and are in the nature of special damages. The Plaintiff was obliged to place material before the court demonstrating how the amount claimed was arrived at; having merely claimed mesne profits without substantiation, the claim failed.

p. 8
04

Which Defendants are liable for compensation

Holding

The 3rd and 4th Defendants, who identified the site, are jointly and severally liable; the 1st and 2nd Defendants, who only funded construction, are not liable

Reasoning

The 1st and 2nd Defendants adduced unrebuted correspondence showing the 3rd and 4th Defendants identified the site while the Ministry merely funded construction at the CDF's request. The court therefore held the 1st and 2nd Defendants not liable and directed the 3rd and 4th Defendants to compensate the Plaintiff.

p. 9

Legal principles established

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  • A party who asserts proprietorship of land bears the burden of proving it on a balance of probabilities (Sections 107, 109 and 112 of the Evidence Act)
  • A Deed Plan affirms the existence of a surveyed parcel of land but does not prove ownership of it
  • A claim for mesne profits is in the nature of special damages and must be specifically pleaded and proven
  • Failure to rebut correspondence attributing site identification to the 3rd and 4th Defendants leaves them liable while the funder (1st and 2nd Defendants) escapes liability

Court orders

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  1. 1.The 3rd and 4th Defendants are jointly and severally directed to compensate the Plaintiff for the value of the suit properties to the tune of Kshs 9,200,000 (Kshs 8,000,000 for 4 plots plus 15% of Kshs 1,200,000)
  2. 2.Interest on the above amount at court rates from the date of filing the suit until payment in full
  3. 3.The 3rd and 4th Defendants shall bear jointly and severally the costs of the suit

Authorities

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Legislation

  • Evidence ActSections 107, 108, 109 and 112
  • Land Registration ActSections 24, 25, 26 and 26(2)
  • Civil Procedure ActSection 2 (definition of mesne profits)
  • Civil Procedure RulesOrder 2 Rule 11; Order 21 Rule 13
  • Government Lands ActCap 280 (now repealed)

Cases cited (5)

  • Rajan Shah T/A Rajan S. Shah & Partners vs Bipin P. Shah
    [2016] eKLR

    Definition of mesne profits as pecuniary benefits lost to the person entitled to possession by wrongful exclusion

  • Margaret Wairimu Warima vs Phylis Wanjiru Thairu & 2 Others
    [2017] eKLR

    Failure to traverse a pleading under Order 2 Rule 11 amounts to admission of those facts

  • Mumbi M'Nabea vs David M. Wachira
    [2016] eKLR

    Standard of proof in civil claims is the balance of probabilities

  • Maria Ciabaitaru M'mairanyi & Others v. Blue Shield Insurance Company Limited
    Civil Appeal No. 101 of 2000 [2005] 1 EA 280

    Evidentiary burden lies on the party who asserts the affirmative of the issue

  • Attorney General vs Halal Meat Products Limited
    [2016] eKLR

    Mesne profits are profits accrued while the rightful owner was excluded from his land

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) of the Constitution; 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, "Bondeni Properties Company Ltd v Director, Ministry of Housing & 3 others", Case Analysis (2023). Environment and Land Case Civil Suit 774 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21465/eng@2023-11-09

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