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ELCDismissedELC Case of 2021 (Kwale)· [2024] KEELC 1663 (KLR)

Kiruwa & another v Weindaba & 7 others (Environment & Land Case 14 of 2021) [2024] KEELC 1663 (KLR)

Environment and Land Court
26 March 2024
12,869 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~51 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kwale dismissed residents' claims over 1,000 acres in Shimoni, holding that unperfected allotment letters confer no title in Kenya.

What this practically means

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Executive summary

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The Plaintiffs, suing as chairperson and vice chairperson of Block 5041 Committee and representatives of residents of LR Kwale/Shimoni/5041 (1000 acres), claimed the land as ancestral land and as squatters allotted 5 acres each following a 2007 presidential decree, evidenced by letters of offer dated 16/6/2008. They discovered in 2018 that the 5th Defendant had issued 999-year certificates of lease over the land to the 1st to 4th Defendants, who in 2021 transferred the parcels to the 6th Defendant for Kshs 90,900,000. They sought declarations, cancellation of titles and transfers, and permanent injunctions. The court framed five issues and declined to dispose of the suit on preliminary objections concerning locus standi, lis pendens and compliance with Order 1 Rules 8 and 13, preferring determination on the merits. On the merits, the court found the Plaintiffs failed to prove ancestry: their own pleadings described them as squatters, their affidavits showed comparatively recent occupation, and the letters of offer referred only to 'Ramisi Phase 1' with no evidence linking it to parcel 5041. No presidential decree was proved, and following Arap Ng'ok and Torino Enterprises, unperfected allotment letters conferred no title. The fraud allegations were neither specifically pleaded with particulars nor proved, so the titles could not be impeached under Section 26 of the Land Registration Act. The 3rd and 4th Defendants' counterclaim failed because they admitted selling their title to the 6th Defendant. The Plaintiffs' suit was dismissed with no order as to costs.

Key legal issues

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01

Whether Plaintiffs proved an interest in the suit property by ancestral rights or letters of allotment

Holding

They did not; no evidence of ancestry was adduced, the letters of allotment referred to Ramisi Phase 1 and were never perfected, and the Plaintiffs are squatters

Reasoning

PW1 conceded he had no ownership documents and never applied for the land; the letters of offer made no reference to parcel 5041; no presidential decree was proved; the Court of Appeal in Arap Ng'ok and the Supreme Court in Torino Enterprises establish that an unperfected allotment letter confers no title. Supporting affidavits showed deponents living on the land only since the late 1980s-1990s, displacing ancestry claims.

p. 18
02

Whether the titles of the 1st to 4th and 6th Defendants should be impeached for fraud

Holding

No; fraud was not specifically pleaded with particulars nor proved to the required standard

Reasoning

The Plaint did not enumerate the specific actions constituting fraud by the 5th Defendant or in the transfer to the 6th Defendant. PW1 conceded he had no investigation report or OB report on the alleged fraud. Following Vijay Morjaria and Central Bank of Kenya v Trust Bank, allegations of fraud must be distinctly alleged and proved at a higher threshold than balance of probabilities.

p. 20
03

Whether the 3rd and 4th Defendants' counterclaim could stand

Holding

It could not; they admitted selling their title to the 6th Defendant and thus had no title

Reasoning

DW2 Ndabi admitted holding title jointly with David Matheri which they sold to the 6th Defendant. Having divested themselves of title, they lacked locus to counterclaim for ownership of LR No 5041/3.

p. 19
04

Whether preliminary objections on locus standi and representative-suit procedure should defeat the suit

Holding

The court declined to dispose of the suit on procedural grounds, preferring determination on the merits

Reasoning

Citing Raila Odinga v IEBC and Banco Arabe Espanol v Bank of Uganda, the court held that the substance of disputes should be investigated and decided on merits and that lapses should not necessarily debar a litigant. The court nonetheless went on to dismiss the suit on its merits.

p. 14

Legal principles established

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  • A letter of allotment does not by itself confer a transferable title; title arises only after issuance of the letter, fulfilment of its conditions and actual issuance of the title document
  • Fraud must be specifically pleaded, its particulars stated on the face of the pleading, and distinctly proved; it cannot be inferred from facts
  • A person who settles on land without any legal claim or title is a squatter, and resettlement of squatters is the responsibility of the National Government under Section 134 of the Land Act

Court orders

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  1. 1.The Plaintiffs' suit against the Defendants is dismissed
  2. 2.No further orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(1)
  • Land Registration ActSection 26(1)(b)
  • Evidence ActSections 107, 108, 109
  • Land ActSection 134
  • Government Land Act (Repealed)
  • Civil Procedure RulesOrder 1 Rules 8 and 13; Order 2 Rule 4
  • Land Titles Ordinance1908

Cases cited (29)

  • Munyu Maina v. Hiram Gathiha Maina
    [2013] eKLR
  • Elizabeth Wanjiru Githinji and 29 Others v. Kenya Urban Roads Authority
    [2019] eKLR
  • Daudi Kiptugen v. Commissioner of Lands & 4 Others
    [2015] eKLR
  • Bubaki Investment Company Ltd –vs- National Land Commission & 2 Others
    [2015] eKLR
  • Mohamed v Duba & another (Civil Appeal 83 of 2019)
    [2022] KECA 442 (KLR)
  • Katende v. Haridar & Company Limited
    [2008] 2 E.A.173
  • Linus Nganga Kiongo & 3 Others v. Town Council of Kikuyu
    [2012] eKLR
  • Peter Ngigi Kuria & another v. Thomas Ondili Oduol & another
    [2019] eKLR
  • Julian Adoyo Ongunga –vs- Francis Kiberenge Abano
    Migori Civil Appeal No.119 of 2015
  • Law Society of Kenya vs Commissioner of Lands & Others
    Nakuru High Court Civil Case No.464 of 2000
  • National Environmental Tribunal vs Overlook Management Limited & 5 Others
    (2019) eKLR
  • Mumo Matemu vs Trusted Society of Human Rights Alliances & 5 Others
    (2014) eKLR
  • Joseph Wamalwa Murutu V Robert Maina
    [2021] EKLR
  • Rukaya Ali Mohamed -Vs- David Gikonyo Nambachia & Another
    Kisumu HCCA.9/2004
  • Joseph Arap Ng'ok Vs Justice Moijo Ole Keiwua
    [1997] EKLR
  • Christopher Ndaru Kagina Vs Esther Mbandi Kagina & Another
    [2016] eKLR
  • Demutila Nanyama Pururmu V Salim Mohamed Salim
    [2021] eKLR
  • Vijay Morjaria Vs Nansingh Madhusingh Darbar & Another
    [2000] EKLR
  • Ruth Wamboi Muturi V Joseph Karisa Katsoma & 4 Others
    [2007] eKLR
  • Raila Odinga & 3 Others V IEBC
    (2013) eKLR
  • Banco Arabe Espanol v Bank of Uganda
    [1999] 2 EA 22
  • Nuru Ruga Ali & another v Commodity House Limited & 3 others
    [2021] eKLR
  • Leonard Otieno Versus Airtel Kenya Limited
    [2018] eKLR
  • Henry Wambega & 733 others v Attorney General & 9 others
    [2020) eK.LR
  • Said Omar Mwitu & 5 Others Vs. Kwale International Sugar & 8 Others
    Constitutional Petition No. 8 of 2019 (formerly Mombasa CP No. 65 of 2011)
  • Torino Enterprises Ltd Vs. Attorney General
    (Petition 5(E006) of 2022 (2023) KESC 79 (KLR)
  • Central Bank of Kenya Limited v Trust Bank Limited & 4 Others
    (1996) eKLR
  • Nelson Kazungu Chai & 9 Others Vs. Pwani University
    (2017) eKLR
  • Kuria Karies & 2 Others Vs. Sammy Magera
    (2018)
Jurisdiction invoked
Article 162(2)(b) of the Constitution read with the Environment and Land Court Act - original jurisdiction over disputes relating to title to land

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, "Kiruwa & another v Weindaba & 7 others (Environment & Land Case 14 of 2021) [2024] KEELC 1663 (KLR)", Case Analysis (2024). ELC Case of 2021 (Kwale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1663/eng@2024-03-26

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