Githinji v Mungai & another (Environment and Land Case 23 of 2018) [2024] KEELC 688 (KLR)
The bottom line
#A Kenyan court confirmed that a Temporary Occupation Licence dies with the licensee and cannot be inherited, so buyers must demand proper title documents.
What this practically means
#Executive summary
#Key legal issues
#Whether unsurveyed plot No. 130 Naivasha Township and Plot No. 130 Kabati Extension are one and the same
The court found both parties were claiming the same parcel of land, albeit with different documents, since the materials and fence of both referred to one plot
It was not in dispute that the construction materials and perimeter fence placed by both parties referred to one and the same plot. The 2nd Defendant's physical planner could not physically confirm whether the two plots were separate. The court therefore found the dispute arose from both parties claiming the same parcel with different documents.
Whether the 1st Defendant's root of title via a TOL could sustain her ownership claim
No. The TOL was personal to the licensee, could not be assigned or inherited, and her husband's rights terminated on his death, making her occupation trespass
The 1st Defendant's claim emanated from a TOL issued to Enock Kungu Njogu, allegedly transferred to her late husband. The TOL was not issued by the Commissioner but by the Municipal Council, and she had no sale agreement or current allotment letter. Judicial authority establishes that such a licence is personal, creates no assignable interest, and dies with the licensee.
Whether the Plaintiff proved ownership of the suit property
Yes. The Plaintiff established the root of his title through a chain from the original allottee Gibson Wahome, whose 1/5/1991 allotment letter was never challenged
The Plaintiff produced the original allotment letter, sale agreements, transfer, beacon certificate and receipts, and the Director of Land Administration confirmed the allotment letter dated 1/5/1991 issued to Gibson Wahome by the Commissioner of Lands, which neither defendant challenged. The court found the Plaintiff proved his case to the required standard.
Legal principles established
#- A licence over land is extinguished upon the death of the licensee and cannot be inherited or be the subject of succession
- A Temporary Occupation Licence is personal to the licensee and creates no assignable interest in the land
Court orders
#- 1.A declaration that the Plaintiff is the lawful proprietor of unsurveyed residential plot no. 130 within Naivasha township
- 2.A permanent injunction restraining the 1st Defendant, her servants or agents from trespassing upon, entering, remaining, dealing in or otherwise interfering with unsurveyed residential plot no. 130 within Naivasha township
- 3.The 1st Defendant to vacate the property within 90 days, failing which the Plaintiff may engage a court bailiff or auctioneer, with the OCS Naivasha Police Station to assist with security
- 4.The 2nd Defendant ordered to rectify the anomaly of double allocation and issue a title to the suit property in the Plaintiff's name
- 5.Each party to bear its own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (not expressly cited in the extract)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githinji v Mungai & another (Environment and Land Case 23 of 2018) [2024] KEELC 688 (KLR)", Case Analysis (2024). Unstated in the judgment (sued by Amended Plaint dated 23rd May 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/688/eng@2024-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.