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ELCPartially AllowedNot stated in the judgment as provided· [2025] KEELC 151 (KLR)

Kipsiro & another v County Government of Uasin Gishu (Environment & Land Case 42 of 2022) [2025] KEELC 151 (KLR)

Environment and Land Court
22 January 2025
JOJ. M. Onyango
2,956 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a county government unlawfully occupied private land but refused compensation, saying the state must follow the proper compulsory acquisition process first.

What this practically means

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Executive summary

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The plaintiffs, administrators of the estate of the late husband of the 1st plaintiff and joint registered owners of land parcel Eldoret Municipality Block 7/255, sued the County Government of Uasin Gishu, alleging that in January 2022 the defendant's employees fenced the parcel and erected permanent structures. They sought declarations of ownership and unlawful encroachment, vacant possession, eviction, a permanent injunction, and, in the alternative, Kshs. 30,000,000/= as just compensation for constructive compulsory acquisition, plus costs. The defendant denied the plaintiffs' proprietorship, contended it bore a constitutional duty to protect public interests, and asserted the plaintiffs had no locus standi and no entitlement to compensation. At trial, the 1st plaintiff produced a certificate of lease, official search, survey and valuation reports. The defendant called a surveyor who was stood down to file a survey report that was never filed, and the defence case was closed. The court framed four issues: proprietorship, encroachment, compensation, and costs. Applying sections 24 and 26 of the Land Registration Act, it held the certificate of lease conclusive proof of the plaintiffs' ownership, uncontested by any contrary evidence. It found the defendant's entry, fencing and construction constituted unlawful encroachment, as no compulsory acquisition or other lawful basis was proved. On compensation, the court declined to award the Kshs. 30,000,000/=, holding that compulsory acquisition is a statutory process under the Land Act and that awarding compensation without compliance would usurp the National Land Commission's mandate and sanitise a flawed process. Judgment was entered declaring the plaintiffs lawful owners and the defendant an unlawful encroacher, with the defendant given six months to initiate proper compulsory acquisition, failing which vacant possession, eviction and a permanent injunction would follow. Costs were awarded to the plaintiffs.

Key legal issues

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01

Registered proprietorship of the suit parcel

Holding

The plaintiffs, holders of a certificate of lease issued on transmission, are the registered proprietors; the defendant adduced no contrary evidence

Reasoning

The plaintiffs produced the Certificate of Confirmation of Grant, lease, certificate of lease and official search. The defendant alleged the plaintiffs were not registered owners but neither challenged the ownership documents nor produced contrary proof. Sections 24 and 26 of the Land Registration Act render the certificate conclusive evidence of ownership, subject only to challenge on fraud or irregular acquisition, none of which was demonstrated.

p. 5
02

Whether the defendant's entry and construction amounted to unlawful encroachment

Holding

Yes - the defendant encroached without lawful justification, having complied with neither the Land Act acquisition procedure nor shown cancellation of the plaintiffs' lease

Reasoning

The defendant denied ownership but offered no justification for its entry onto the land. It produced no survey report despite undertaking to do so, called no witness to justify its use of the land, and proved neither compulsory acquisition nor conversion of interest. Property rights under Article 40 can only be deprived of in accordance with the Constitution and statute, which was not done.

p. 5
03

Whether the court could award Kshs. 30,000,000/= as compensation for constructive compulsory acquisition

Holding

No - compensation for acquisition can only follow the statutory process under the Land Act led by the National Land Commission

Reasoning

Sections 107, 110 and 111(1) of the Land Act mandate the National Land Commission to conduct compulsory acquisition and assess just compensation. The defendant admitted non-compliance with section 107 as read with Article 40(3). While both parties were open to a compensation award, the court held it could not sanitise a flawed process by assessing compensation, as that would usurp the Commission's mandate.

p. 6

Legal principles established

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  • A certificate of title/lease is prima facie and conclusive evidence of proprietorship under sections 24 and 26 of the Land Registration Act and cannot be challenged except on fraud, misrepresentation or irregular acquisition
  • Deprivation of private property is lawful only where the compulsory acquisition procedure under the Land Act and Article 40(3) of the Constitution is strictly followed
  • A court cannot award compensation for compulsory acquisition where the statutory process was not complied with, as that would usurp the National Land Commission's mandate

Court orders

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  1. 1.A Declaration that the Plaintiffs are the lawful owners of land parcel Number Eldoret Municipality Block 7/255
  2. 2.A Declaration that the Defendant has unlawfully encroached on land parcel Number Eldoret Municipality Block 7/255
  3. 3.The defendant is at liberty to initiate the process of compulsory acquisition of the suit parcel within six (6) months
  4. 4.Should the Defendant fail to carry out the compulsory acquisition, the Defendant shall render vacant possession within six (6) months failing which the Plaintiffs may apply for an eviction order
  5. 5.After the Defendant has been evicted, a permanent injunction restraining the defendant by its employees and/or agents from encroaching on the suit parcel
  6. 6.The costs of the suit shall be borne by the defendant

Authorities

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Legislation

  • Land Registration Actsection 24(a); sections 24 and 25; section 26(1)
  • Land Actsections 107, 110, 111(1), 113-119
  • Constitution of Kenya, 2010Article 40; Article 40(3); Chapter Five

Cases cited (5)

  • Penmain Company Ltd vs Likoni Community Development & 6 Others
    (2021) eKLR
  • Katra Jama Issa vs AG & 3 Others
    (2018) eKLR
  • Tonini Holdings Ltd vs Kenya Urban Roads Authority & Anor
    (2023) KEELC (25 July, 2023)
  • Annacherry Ltd vs the Attorney General
    (2014) eKLR
  • Patrick Musimba v National Land Commission & 4 others
    (2016) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcel Eldoret Municipality Block 7/255 (Article 162(2)(b) jurisdiction; not expressly 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, "Kipsiro & another v County Government of Uasin Gishu (Environment & Land Case 42 of 2022) [2025] KEELC 151 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/151/eng@2025-01-22

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