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ELCAllowedNot stated in the judgment· [2024] KEELC 5659 (KLR)

Drywood Hotel Limited & another v Ngari & 18 others (Environment and Land Case Civil Suit E206 of 2021) [2024] KEELC 5659 (KLR)

Environment and Land Court
18 July 2024
LMLUCY N. MBUGUA
2,230 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court ordered Mukuru encroachers off three Nairobi plots, confirming that proper title plus lawful eviction notices win eviction cases in Kenya.

What this practically means

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Executive summary

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The Plaintiffs, two companies registered as proprietors of Nairobi/Block 97/2362, 97/2430 and 97/2429 following allotments by the Commissioner of Lands between 1998 and 2001, sued unidentified encroachers from the Mukuru informal settlement seeking declarations of ownership, a permanent injunction, an order to vacate, demolition of illegal structures, enforcement assistance and costs. The Defendants were served by substituted service and did not participate; the suit proceeded by formal proof. PW1, John Karume Kiguru, a director of both companies, testified to the allotment and registration history, and to years of violent resistance to attempts to recover the land, including involvement of the chief, District Officer, Provincial Commissioner, police and politicians, and criminal charges against some of the encroachers' alleged leaders. He confirmed that statutory notices to vacate dated 19.10.2020 were published in the Standard and Daily Nation and posted on the parcels, in compliance with Section 152E of the Land Act. The court found the Plaintiffs' evidence of title cogent and unchallenged, characterised the Defendants' occupation as a brazen invasion by brute force akin to the Orbit Chemicals litigation, and held that the notices complied with Section 152E and went unchallenged for over three years. Finding the claim proved on a balance of probabilities, the court allowed the claim as prayed in the plaint and awarded costs to the Plaintiffs.

Key legal issues

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01

Proof of ownership of the suit parcels

Holding

The Plaintiffs proved ownership through unchallenged evidence of allotment letters and registration as lessees

Reasoning

PW1 gave a cogent account of how each parcel was acquired: Plot K allotted by the Commissioner of Lands by letter of 16.12.1998 becoming Nairobi/Block 97/2430; Plot No. 5 allotted by letter of 27.2.2001 becoming Nairobi/Block 97/2362; and the 2nd Plaintiff allotted a plot by letter of 9.3.1999 becoming Nairobi/Block 97/2429. The Defendants did not enter appearance and the evidence was unchallenged.

p. 4
02

Compliance with Section 152E of the Land Act before eviction

Holding

The notices to vacate dated 19.10.2020, published in the newspapers and posted on the parcels, satisfied Section 152E of the Land Act

Reasoning

The Plaintiffs issued a notice to vacate dated 19.10.2020, published it in the Daily Nation of 29.10.2020 and the Standard of 4.11.2020, and led unchallenged evidence that notices were posted in visible areas throughout the parcels. The Defendants never challenged the notices yet continued in occupation, so there was no legal basis for their continued invasion of private property.

p. 5

Legal principles established

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  • The first step in an eviction is for the lawful owner to serve a notice of eviction in accordance with the law, giving affected persons an opportunity to seek relief in court under Section 152E of the Land Act
  • Unchallenged evidence of title and lawful eviction notices suffices to prove a trespass/eviction claim on a balance of probabilities

Court orders

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  1. 1.Judgment entered for the Plaintiffs as prayed in the plaint
  2. 2.Declaration that the 1st Plaintiff is the duly registered proprietor of Nairobi/Block 97/2362 and Nairobi/Block 97/2430
  3. 3.Declaration that the 2nd Plaintiff is the duly registered proprietor of Nairobi/Block 97/2429
  4. 4.Permanent injunction restraining the Defendants from selling, transferring or building on the suit parcels
  5. 5.Order that the Defendants and all encroaching individuals quit, move out and vacate the suit parcels
  6. 6.Order that the Defendants pull out, demolish and remove all illegal temporary structures erected on the property
  7. 7.Enforcement orders against the District Commissioner Embakasi and the Officer Commanding Police Station, Embakasi should the Defendants fail to comply within 30 days
  8. 8.Costs of the suit to the Plaintiffs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Land ActSection 152
  • Land ActSection 152E

Cases cited (9)

  • Ringera v Muhindi (Environment and Land Miscellaneous Application E128 of 2021) KEELC 2481 (KLR) (7 July 2022)
    KEELC 2481 (KLR)
  • Salome Naliaka Wabwile v Alfred Okumu Musinaka [2022] eKLR
    [2022] eKLR
  • Unity 45 Housing Co-operative Society Limited v Kamuyu & 3 others; Awuor Suing on Behalf of Dorice Auma Owuor & 2 others (Interested Parties) (Environment & Land Case 994 of 2014) [2024] KEELC 4972 (KLR) (24 June 2024)
    [2024] KEELC 4972 (KLR)
  • Kiarie & 4 others v Orbit Chemicals Industries Limited & 4 others (Environment & Land Case E048 of 2023) [2023] KEELC 19340 (KLR) (15 August 2023)
    [2023] KEELC 19340 (KLR)
  • Mukuru Kwa Njenga Slum Residents & 12 Others, Petition No. 62 of 2018 (2020) eKLR
    (2020) eKLR
  • Amina Mohamed & 7 Others vs Chief Embakasi Location & 2 Others, J.R Misc Application No. 748 of 1996 (2005) eKLR
    (2005) eKLR
  • Orbit Chemical Limited vs The Hon. Attorney General, HCCC No. 876 of 2004
  • Zipporah Muthoni Ndungu & 5 Others vs National Bank of Kenya Ltd & 12 Others [2021]
    [2021]
  • Atik Mohamed Omar Atik & 3 others v Joseph Katana & Another [2019] eKLR
    [2019] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over title to land, trespass and eviction (claim founded on registered title, Article 40 of the Constitution and the Land Act invoked by the parties)

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, "Drywood Hotel Limited & another v Ngari & 18 others (Environment and Land Case Civil Suit E206 of 2021) [2024] KEELC 5659 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5659/eng@2024-07-18

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