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ELCPartially AllowedNot stated in the judgment as provided· [2024] KEELC 6947 (KLR)

Angwenyi & another v County Government of Kajiado (Environment & Land Case 140 of 2018) [2024] KEELC 6947 (KLR)

Environment and Land Court
22 October 2024
MGM.N. Gicheru
1,244 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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The Kajiado Environment and Land Court confirmed the plaintiffs own the plot and barred the county from interfering, but refused claims against trespassers who weren't sued.

What this practically means

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Executive summary

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The plaintiffs sued the defendant (county government) claiming to be joint allottees and registered proprietors of Plot No. 152/Industrial Noonkopir T. Centre, purchased from George Pertet in October 1992 and supported by a letter of allotment dated 22/2/1995 and an official search of 12/2/2008. They alleged that from February 2008 the land was encroached on, subdivided and developed by third parties without redress, and sought declarations, cancellation of other allotments, possession, a permanent injunction, and costs. The defendant denied the claim entirely and pleaded limitation. At trial, the 1st plaintiff adopted his witness statement and documents; the defendant called its County Land Registrar, who produced a report dated 11/2/2021 confirming that the suit land is still officially registered in the plaintiffs' names and that the defendant has not failed to stop trespassers. The court framed three issues. On the first, it found the defendant not at fault; the plaintiffs should have joined the trespassers, and their probable non-compliance with the special conditions of the allotment letters may have contributed to the trespass. On the second, no evidence of subdivision or new allotment letters was produced, and the burden under Sections 107 and 108 of the Evidence Act was not discharged. The suit was allowed only in terms of prayers (a) and (e): declaration of the plaintiffs' interest and a permanent injunction. No order as to costs was made. Judgment was delivered virtually at Kajiado on 22 October 2024 without the benefit of counsel's submissions, which were not on record.

Key legal issues

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01

Whether the defendant failed to stop encroachment on the suit land

Holding

The defendant did not fail to stop the encroachment; the plaintiffs failed to prove fault on the defendant's part

Reasoning

It was for the plaintiffs to seek eviction of the occupiers, and they led no evidence showing the defendant allowed the trespassers in. The defendant's County Land Registrar confirmed the land remains officially registered in the plaintiffs' names. The court also noted the plaintiffs did not file the special conditions attached to the letters of allotment, and that their probable non-compliance may have contributed to the trespass.

p. 3
02

Whether the defendant subdivided the suit land and issued new letters of allotment

Holding

Not proved; the prayer fails for want of evidence

Reasoning

The plaintiffs averred subdivision and issuance of new allotment letters but produced no evidence of either. Under Sections 107 and 108 of the Evidence Act the burden lay on them as the party making the averment, and having discharged it not, the declaration sought could not issue.

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Which of the seven orders sought have been proved

Holding

Only prayers (a) and (e); suit allowed on those prayers only, with no order as to costs

Reasoning

The court found the plaintiffs' title as joint allottees and registered proprietors established, and the defendant's own witness confirmed the land is officially still registered in the plaintiffs' names. The remaining prayers failed for want of proof, so the suit succeeded only in part.

p. 4

Legal principles established

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  • A party who alleges subdivision and issuance of new allotment letters bears the burden of proving it under Sections 107 and 108 of the Evidence Act
  • Persons alleged to be in trespass should be joined as parties before an order for eviction is made against them

Court orders

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  1. 1.Declaration that the plaintiffs rightfully hold value interest as joint allottees and registered proprietors of Plot No. 152/Industrial Noonkopir T. Centre (prayer (a))
  2. 2.Permanent injunction restraining the defendant, its servants, employees, agents, contractors and all others other than the plaintiffs from constructing, fencing, developing, entering and/or trespassing on the suit land (prayer (e))
  3. 3.No order as to costs

Authorities

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Legislation

  • Evidence ActSections 107 and 108
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land (Plot No. 152/Industrial Noonkopir T. Centre); no specific provision cited 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, "Angwenyi & another v County Government of Kajiado (Environment & Land Case 140 of 2018) [2024] KEELC 6947 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6947/eng@2024-10-22

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