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ELCDismissed· [2024] KEELC 3807 (KLR)

Kebari & 19 others v County Government of Nyamira (Environment & Land Case E005 of 2021) [2024] KEELC 3807 (KLR)

Environment and Land Court
30 April 2024
2,561 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a Kshs. 285 million demolition compensation claim because the plaintiffs could not prove they owned the land.

What this practically means

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Executive summary

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Twenty plaintiffs claiming plots comprised in East Kitutu/Mwamangera/1142, purchased from the late Kebari Ndigiti, sued the County Government of Nyamira for compensatory damages of Kshs. 285,464,500, loss of rental earnings and general damages following the County's repossession of the land and demolition of their structures on 1/4/2020. They relied on orders issued by Justice V.V. Patel on 26/6/1987 in Kisii HCCC No. 99 of 1982, rent receipts, plot ownership cards and a valuation report. The Defendant denied the Plaintiffs' ownership, asserting the land is public land registered to its predecessors since 1970 and earmarked as an open-air market, and contended the Plaintiffs held forged documents and were strangers to the 1982 decree. The court found the register showed ownership in the County's name since 17/7/1970 with no change, and that no impeachment of the title was sought. The Plaintiffs failed to produce the pleadings in the earlier case to establish that the Patel orders referred to them; the decree caption was illegible save for '...and 11 others v Gusii County Council', and even the advocate who acted in that case could not confirm the nexus. The court held that persons awarded plots in 1982 should have executed those orders rather than file afresh, failing which such a suit would be res judicata. Holding that ownership was never proved, the court found no need to consider the remaining prayers, held that the Defendant's prior notices of repossession were sufficient warning, dismissed the suit in its entirety but spared the Plaintiffs costs. Judgment delivered at Nyamira on 30/4/2024 by Mugo Kamau, J.

Key legal issues

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01

Proof of ownership of the suit plots

Holding

The Plaintiffs failed to prove ownership; the only documents were two miscellaneous cashier's receipts, a plot ownership card and a conditional allotment letter of 1977, and the register showed the land belongs to the Defendant

Reasoning

The court scrutinised the payment receipts, ownership cards and the Keroka Township plots list and found they did not demonstrate allocation of the specific plots to the individual plaintiffs. The title abstract showed registration in the County's name since 1970 with no change of ownership, and no impeachment of the title was sought.

p. 6
02

Nexus between the Plaintiffs and the decree in Kisii HCCC No. 99 of 1982

Holding

No nexus was established between the present Plaintiffs and the litigants in the earlier case; the decree title only showed '...and 11 others v Gusii County Council'

Reasoning

The Plaintiffs never produced the pleadings from the earlier case to show the Patel orders referred to them. Even PW5, the advocate who acted for the plaintiffs in that case, could not confirm the nature of the claim or whether the title was in his client's name. The court declined to infer what was not evident from the documents.

p. 6
03

Res judicata as between the two suits

Holding

For the litigants in the earlier case, this suit would be res judicata; they ought to have executed the orders of the competent court rather than file afresh

Reasoning

The court noted that persons specifically awarded plots by Justice Patel's orders should have proceeded to execute those pronouncements. Filing a new suit to prove what had already been decided by a court with jurisdiction would offend res judicata. However, since the Plaintiffs did not establish they were the beneficiaries of that decree, the claim failed on proof of ownership.

p. 6
04

Sufficiency of notice of repossession and demolition

Holding

The Defendant's notice of intended repossession given before 1/4/2020/2021 sufficed to warn the Plaintiffs to remove their buildings and relocate

Reasoning

Although the Plaintiffs alleged the demolition was fraudulent and without notice, the court found that the Defendant had given prior notices of repossession, which afforded the Plaintiffs time to remove their buildings and wares. Consequently even the procedural complaint about the demolition could not sustain the claim once ownership was not proved.

Legal principles established

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  • A party seeking compensation for demolition must first establish ownership of the affected property; compensation cannot be awarded without proof of ownership
  • A litigant who obtained orders in a prior suit should execute those orders rather than file a fresh suit, and a fresh suit on the same subject would be res judicata
  • Where the identity of parties in a prior decree cannot be established from the documents produced, no nexus can be drawn to benefit the present plaintiffs

Court orders

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  1. 1.The suit is dismissed in its entirety
  2. 2.The Plaintiffs are spared the costs of the suit
Jurisdiction invoked
Original civil suit commenced by Plaint dated 26/5/2021; no specific constitutional or statutory provision invoked in the judgment

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, "Kebari & 19 others v County Government of Nyamira (Environment & Land Case E005 of 2021) [2024] KEELC 3807 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3807/eng@2024-04-30

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