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ELCDismissedNot stated in the judgment (plaint filed 15 October 2021)· [2024] KEELC 7164 (KLR)

Bungu & 2 others (Suing as Legal Representatives of the Estate of Jackson Bungu Ongata - Deceased) v Kisii National Polytechnic (Formerly Known as Gusii Institute of Technology & 3 others (Environment & Land Case 21 of 2021) [2024] KEELC 7164 (KLR)

Environment and Land Court
31 October 2024
5,421 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A family claiming plots allotted to their late father lost because the plots were never formally surveyed and their claim came decades too late.

What this practically means

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Executive summary

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The plaintiffs, legal representatives of the estate of Jackson Bungu Ongata, sued Kisii National Polytechnic, the County Government of Kisii, the Land Registrar Kisii and the National Land Commission, claiming ownership of plots they identified as Plots Y and Z adjacent to the Polytechnic, which they said were allotted to their late father. They sought cancellation of the 1st defendant's Certificate of Lease over Kisii Municipality/Block III/252, rectification of the Part Development Plan, preparation of a new PDP, a permanent injunction and general damages. The defendants maintained the suit plots were imaginary, that the Polytechnic holds title to land surveyed in 1977 under a fixed boundary survey, and that the disputed area falls within that parcel. The court, having heard five plaintiff witnesses and the Government surveyor and visited the site, found that the purported Plots Y and Z were never surveyed and do not exist as delineated parcels; the area the plaintiffs occupy partly falls within the Polytechnic's parcel and partly on a road reserve. Correspondences showed an intention to allocate the land to the deceased, but the Commissioner of Lands declined to approve the PDP upon realising the land fell within already alienated land for Gusii Institute of Technology. Under Section 3 of the Government Lands Act, only the President could allocate unalienated Government land, and no delegation permitted allocation to a private individual. No payment, survey, RIM amendment or lease followed the purported allotment letter. Any claim arising from the 1977 survey was also time barred. The suit was dismissed with costs, and the plaintiffs were granted three months to give vacant possession, after which they are permanently restrained from the parcel.

Key legal issues

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01

Whether valid allocation of the disputed land to the deceased ever occurred

Holding

No conclusive allocation was made; the process was abandoned when it was realised the land was already alienated public land, so the plaintiffs have no legitimate interest.

Reasoning

The correspondence showed intention to allocate but the Commissioner of Lands flagged that the proposed PDP fell on surveyed land belonging to Gusii Institute of Technology. No approved PDP, no payment of stand premium, no survey, no amendment of the RIM and no lease followed. The allotment letter did not identify Plots Y and Z. Allocation of already-alienated public land would in any event have been beyond the powers of the Commissioner of Lands.

p. 5
02

Whether the 1st defendant's title rests on a defective PDP including the plaintiffs' land

Holding

The 1st defendant's land was surveyed in 1977 under a fixed boundary survey with distinct coordinates and the disputed area falls within that survey plan; there is no evidence of Plots Y and Z or of any resurvey.

Reasoning

The Government surveyor testified the Polytechnic parcel was authenticated on 23 August 1977 with an area of 16.96 Ha; the disparity of 0.22 Ha on the ground is the portion occupied by the plaintiffs. The purported allotment letter dated 15 August 1999 postdates the survey and does not identify Plots Y and Z; the PDP exhibited was never approved.

p. 4
03

Limitation

Holding

Any claim against the 1977 fixed boundary survey is time barred; the cause of action did not arise in 2021 when fencing started.

Reasoning

The survey of 1977 was a fixed boundary survey with coordinates done on the ground. If the deceased was in occupation and aggrieved, he had 12 years to present his claim and did not. He never sued the Polytechnic before his death in 2013.

p. 9
04

Whether the alleged donation of land by the deceased to found the school was proved

Holding

No tangible evidence of donation; the evidence of PW-5 was insufficient to establish any donation.

Reasoning

The court noted there would ordinarily be documentation where Government requests land, but none was produced. PW-5, the former bodyguard of Mr. Onyonka, did not know the contents of documents allegedly handed over and remained outside discussions. The origin and arrangement under which the 1st defendant got its land could not be established, but its 1977 survey and title remain.

p. 5

Legal principles established

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  • Allocation of unalienated Government land was a power vested in the President under Section 3 of the Government Lands Act, and the powers delegated to the Commissioner of Lands did not extend to allocating unalienated Government land to a private individual in his discretion.
  • The Commissioner of Lands could not allocate land already alienated to a public educational institution for a public purpose.
  • A claim to land based on alleged encroachment must be brought within limitation from the time of the fixed boundary survey.
  • Fencing public property is a legitimate means of protecting public land against encroachment and trespass.

Court orders

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  1. 1.Plaintiffs' suit dismissed with costs
  2. 2.Order of eviction granted in favour of the 1st and 3rd defendants, stayed for three (3) months
  3. 3.The 1st defendant at liberty to put up its wall in line with the survey plan depicting the boundaries of its land
  4. 4.Within the three months the plaintiffs barred from undertaking any developments or wasting the land detrimental to the interests of the 1st defendant
  5. 5.After lapse of three months, the plaintiffs and any person in occupation on the basis of their title permanently restrained from being upon, entering, occupying, or in any way interfering with the 1st defendant's quiet possession of Kisii Municipality/Block III/252

Authorities

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Legislation

  • Government Land ActSection 3
  • Government Land Act (Cap 280)Cap 280 (repealed in 2012)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) of the Constitution, though not expressly quoted 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, "Bungu & 2 others (Suing as Legal Representatives of the Estate of Jackson Bungu Ongata - Deceased) v Kisii National Polytechnic (Formerly Known as Gusii Institute of Technology & 3 others (Environment & Land Case 21 of 2021) [2024] KEELC 7164 (KLR)", Case Analysis (2024). Not stated in the judgment (plaint filed 15 October 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7164/eng@2024-10-31

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