Marete v Koome & 2 others (Environment and Land Case 97 of 2000) [2024] KEELC 5068 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that officially approved re-planning and re-survey of urban plots is valid, protected the registered owner with a permanent injunction, but refused damages.
What this practically means
#Executive summary
#Key legal issues
#Validity of the re-planning and re-survey of the plaintiff's plot
The re-planning and re-survey creating Block II/788 were lawfully undertaken; the defendants failed to prove they were fraudulent or void
The court relied on expert evidence of the County Physical Planning Officer, County Surveyor and District Land Registrar, together with the joint report of 24th October 2017 and the physical planning report of 19th September 2017. The re-planning was approved by the Commissioner of Lands, and the disputed portion fell within the plaintiff's parcel Block II/788. The plaintiff's plot took over the government land (public road).
Entitlement to permanent injunction
The plaintiff proved his case on a balance of probabilities and was entitled to a permanent injunction
The court found on the documentary and expert evidence that the disputed portion of land falls within the plaintiff's parcel Block II/788 and not on the defendants' plot. Having established his registered leasehold interest, the plaintiff was entitled to protection of that title by way of permanent injunction against the defendants.
Defendants' counterclaim
The counterclaim for declarations of invalidity, mandatory injunction and compensation failed as unproved
The defendants failed to prove their counterclaim on a balance of probabilities. Their own documents showed discrepancies between the allotment letter (0.030 hectares, freehold) and the certificate of lease (0.32 hectares, leasehold), and the survey evidence established that the re-survey superseded the earlier plan and parcels.
General damages
General damages refused
Although a party need not prove specific damage to be awarded damages, the court held that the dispute arose through re-planning and re-survey carried out by lands officials and could not be attributed to any party, so no damages were awardable against the defendants.
Legal principles established
#- Plots within urban centres are subject to re-planning and re-survey, especially where planning of public utilities such as public roads is affected
- A party asserting a legal right or liability bears the burden of proving it on a balance of probabilities
Court orders
#- 1.A permanent injunction issued to stop the defendants, their servants or agents from entering or whatsoever interfering with the plaintiff's Parcel No. Meru Municipality Block II/788 (old Block II/207)
- 2.The defendants' counterclaim is dismissed
- 3.The defendants to pay the plaintiff the costs of and incidental to this suit
- Jurisdiction invoked
- Suit transferred from the Chief Magistrate's Court to the High Court (Environment and Land Court); jurisdiction under the court's original jurisdiction over land disputes (transfer noted as effected by Oundu, Resident Magistrate).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marete v Koome & 2 others (Environment and Land Case 97 of 2000) [2024] KEELC 5068 (KLR)", Case Analysis (2024). Meru CMCC 83 of 2000 (as transferred; exact High Court/ELC number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5068/eng@2024-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.