Gisa & 2 others v National Land Commission & another (Environment & Land Case 281 of 2018) [2024] KEELC 7474 (KLR)
The bottom line
#A Kenyan court stopped a government land allotment because the land was already fully subdivided and occupied by a community for over 24 years.
What this practically means
#Executive summary
#Key legal issues
#Validity of the allotment of L.R 9363/27 for a police station
The allotment was irregular, unlawful and illegal because all plots arising from the subdivision of L.R 9363 had already been assigned, including plot 27 to Mbugua Kangethe.
The subdivision schedule showed plot 27 registered to Mbugua Kangethe and no plot set aside for a police station. The subdivision was never challenged. PW1, a director of the 4th Plaintiff, confirmed no plot was allocated for a police station. The Defendants called no evidence to contradict this, so the court inferred the National Land Commission had no unallocated land to allot.
Prescriptive rights of the 1st – 3rd Plaintiffs
The Plaintiffs' long, uninterrupted occupation of L.R 9363/21 conferred prescriptive rights justifying protection from eviction.
The Plaintiffs testified to occupation for 24 or more years, erecting a church, school and homes. This evidence was uncontradicted as the Defendants called no witnesses. The court found a prima facie case and held the Defendants and their agents should be restrained from interfering with peaceful possession and occupation.
Threat of eviction
The threat of eviction was proved by the Plaintiffs' uncontradicted evidence of the OCS Mwiki's visit and the allotment letter left on the land.
Although the 2nd Defendant denied in its defence that a threat of eviction was proved, it called no evidence to contradict the Plaintiffs' testimony that the OCS Mwiki and other officials visited the land, left an allotment letter dated 8th January 2018 in favour of the Cabinet Secretary to the Treasury, and asked the occupants to vacate for construction of a police station.
Legal principles established
#- Uncontradicted evidence of occupation for a considerable period without interruption supports acquisition of prescriptive rights
- Where land has been fully subdivided and all plots assigned, no further allotment can issue over it
Court orders
#- 1.A declaration that the issuance of an allotment of L.R 9363/27 over the same ground position as L.R No. 9363/21 in favour of the Cabinet Secretary to the Treasury for purposes of a Police Station is irregular, unlawful and illegal
- 2.A permanent injunction restraining the Defendants, their agents, servants and assignees from evicting the 1st – 3rd Plaintiffs from L.R 9363/21
- 3.Costs of the suit to the Plaintiffs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (specific provision not cited in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gisa & 2 others v National Land Commission & another (Environment & Land Case 281 of 2018) [2024] KEELC 7474 (KLR)", Case Analysis (2024). Plaint dated 13th June 2018, amended 9th July 2018 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7474/eng@2024-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.