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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether valid allocation of the disputed land to the deceased ever occurred
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.
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.
Whether the 1st defendant's title rests on a defective PDP including the plaintiffs' land
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.
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.
Limitation
Any claim against the 1977 fixed boundary survey is time barred; the cause of action did not arise in 2021 when fencing started.
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.
Whether the alleged donation of land by the deceased to found the school was proved
No tangible evidence of donation; the evidence of PW-5 was insufficient to establish any donation.
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.
Legal principles established
#- 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
#- 1.Plaintiffs' suit dismissed with costs
- 2.Order of eviction granted in favour of the 1st and 3rd defendants, stayed for three (3) months
- 3.The 1st defendant at liberty to put up its wall in line with the survey plan depicting the boundaries of its land
- 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.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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.