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ELCPartially AllowedUnstated in the judgment (sued by Amended Plaint dated 23rd May 2018)· [2024] KEELC 688 (KLR)

Githinji v Mungai & another (Environment and Land Case 23 of 2018) [2024] KEELC 688 (KLR)

Environment and Land Court
15 February 2024
7,185 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff sued claiming ownership of unsurveyed residential plot No. 130 Naivasha Township, tracing his title from the original allottee Gibson Wahome (allotment letter dated 1/5/1991) through successive transfers to Margaret Wanjiku Karanja and finally to himself by purchase on 9th October 2017 for Kshs 3 million. He sought eviction, a permanent injunction, a declaration of validity of the allotment, and rectification of a double allocation by the 2nd Defendant (County Government). The 1st Defendant counterclaimed, claiming the same plot through her late husband from Enock Kungu Njogu under a Temporary Occupation Licence allegedly converted to an allotment letter. The court framed three issues and first established that both parties were claiming one and the same parcel. On the evidence, the Director of Land Administration confirmed the Commissioner of Lands' allotment to Gibson Wahome, which was never challenged, and that only the Commissioner could issue allotments and TOLs. The court held that a TOL is personal to the licensee, creates no assignable interest, and is extinguished on the licensee's death; consequently the 1st Defendant's deceased husband could not pass on his rights, and her occupation amounted to trespass. The Plaintiff, having proved the root of his title to the required standard, succeeded. The court declared him lawful proprietor, issued a permanent injunction against the 1st Defendant, allowed her 90 days to vacate, and directed the 2nd Defendant to rectify the double allocation and issue a title in the Plaintiff's name. Each party was ordered to bear its own costs, the wrong being attributed to the then Nakuru County Council. Judgment delivered at Nakuru on 15th February 2024 by A.O. Ombwayo, Judge.

Key legal issues

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01

Whether unsurveyed plot No. 130 Naivasha Township and Plot No. 130 Kabati Extension are one and the same

Holding

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

Reasoning

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.

p. 10
02

Whether the 1st Defendant's root of title via a TOL could sustain her ownership claim

Holding

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

Reasoning

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.

p. 12
03

Whether the Plaintiff proved ownership of the suit property

Holding

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

Reasoning

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.

p. 12

Legal principles established

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  • 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

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  1. 1.A declaration that the Plaintiff is the lawful proprietor of unsurveyed residential plot no. 130 within Naivasha township
  2. 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. 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. 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. 5.Each party to bear its own costs

Authorities

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Legislation

  • Land ActSection 2 (definition of TOL)
  • Land ActSection 40
  • Government Lands Act (Cap 280, now repealed)Section 40
  • Government Lands Act (Cap 280, now repealed)Section 42
  • Evidence ActSections 107 and 108
  • Local Government ActSection 144(5)

Cases cited (7)

  • Runda Coffee Estates Ltd v Ujagar Singh
    [1966] E.A 564
  • Faraj Maharus v J.B Martin Glass Industries & 3 Others
    [2005] eKLR
  • Dr. Joseph N.K Arap Ng'ok v Justice Moijo Ole Keiyua & 4 Others
    CA 60/1997
  • John Kariuki Maina v Town Clerk of the Municipal Council of Thika
    [2015] eKLR
  • Kirugi & Another v Kabiya & 3 Others
    [1987] KLR 347
  • Daudi Kiptugen v Commissioner of Lands Nairobi Lands & 4 others
    [2015] eKLR
  • Omar & 8 Others v Murania & Another
    [2006] 1 KLR (E&L) 206
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

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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, "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.