Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment as provided

Odhiambo (Suing as the Holder of Power of Attorney on Behalf of Benjamin Ouma Otiende) ((Suing as the Holder of Power of Attorney on Behalf of Benjamin Ouma Otiende)) v County Government of Kisumu & another (Environment & Land Case E029 of 2024) [2025] KEELC 4165 (KLR)

Environment and Land Court
29 May 2025
2,662 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Kisumu confirmed a landowner's title, stopped Kisumu County from demolishing the property, but denied unproven rental income damages.

What this practically means

#

Executive summary

#
The plaintiff, acting through a Power of Attorney holder for the donor Benjamin Ouma Otiende, sued over land parcel Kisumu/Mamboleo/UNS.BCR 8A in Kisumu, valued with its developments at over Kshs.20,000,000. He claimed that on 31st March 2021 the Defendants, without notice, marked the property ready for demolition on the allegation that it was public land designated for a slaughter house, and sought declarations that the land was lawfully acquired and not public land, a permanent injunction, damages for loss of rental income and costs. The Defendants denied the claim, and their witness testified that the parcel did not exist on the Deed Plan, which showed the land as L.R. No.29515 belonging to the defunct Municipal Council of Kisumu, now the County Government, designated as the Mamboleo Slaughter House. The court framed five issues. It held that the assertion that the land was public land was never pleaded and, in any event, the Defendants failed to discharge the burden of proof under sections 107 to 109 of the Evidence Act, as the Deed Plan produced did not relate to the suit land. The allotment letter issued by the Commissioner of Lands was unchallenged by any pleaded case of irregularity, and the plaintiff had paid rates and complied with its conditions, so the allotment was lawful. The Defendants' marking of the building for demolition without notice violated the plaintiff's right to property under Article 40. Judgment was entered for the plaintiff with declarations and a permanent injunction plus costs, but the claim for damages for loss of rental income failed for want of proof.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether or not the suit land is public land and whether or not the Plaintiff is liable for trespass onto public land
  2. 2.Whether or not the allotment of the suit land to the Plaintiff was unlawful and irregular
  3. 3.Whether or not the Defendants trespassed onto and unlawfully placed marks on the building on the suit land for demolition
  4. 4.Whether or not the Plaintiff is entitled to the reliefs sought
  5. 5.Costs of the suit

Key legal issues

#
01

Whether the suit land is public land

Holding

The court found no evidence that the suit land is public land; the claim was not pleaded and was not proved

Reasoning

The claim that the land was public land designated for a slaughter house was never pleaded in the defence, which merely denied the plaintiff's claim. Even on the evidence, the Deed Plan produced did not show the relationship between the suit land and the land on the Deed Plan, and the defendants were unclear whether the plot did not exist or the plaintiff had encroached. The burden under sections 107-109 of the Evidence Act lay on the defendants and was not discharged.

p. 4
02

Whether the allotment of the suit land to the Plaintiff was unlawful and irregular

Holding

The allotment was lawful; irregularity was alleged only by DW1 without supporting evidence and was not pleaded

Reasoning

The allotment letter dated 25th September 1998, Ref. No.262867, was issued by the Commissioner of Lands and its allotment was not denied. Irregularity was neither pleaded nor proved by evidence. The plaintiff had paid all rates and dues and there was no complaint of non-compliance with the conditions of the Letter of Allotment.

p. 5
03

Whether the Defendants unlawfully trespassed and marked the building for demolition

Holding

The Defendants' actions were unlawful and violated the Plaintiff's constitutional right to property under Article 40

Reasoning

Having found the allotment lawful, the Plaintiff was entitled to the protection of Article 40 of the Constitution and the Land Registration Act. The Defendants descended on the property on 31st March 2021 without notice and marked it with a red X for demolition on the unproved allegation that it was public land, which actions were unlawful.

p. 5
04

Whether the Plaintiff is entitled to the reliefs sought

Holding

The plaintiff proved the case on a balance of probabilities and was granted the declarations, permanent injunction and costs, but not damages for loss of rental income

Reasoning

The plaintiff proved lawful allotment and the defendants' unlawful trespass and marking of the building. However, special damages for loss of rental income, though pleaded, was not proved: no tenancy agreements, receipts, rent books or KRA returns were produced to establish the existence of the rental income or its loss.

p. 6

Legal principles established

#
  • Parties are bound by their pleadings; evidence at variance with the pleadings must be disregarded
  • The party asserting that land is public land bears the burden of proving it
  • Costs follow the event under Section 27 of the Civil Procedure Act

Court orders

#
  1. 1.A declaration that the suit land parcel Kisumu/Mamboleo/UNS.BCR 8 A was legally and procedurally acquired by the Plaintiff
  2. 2.A declaration that the suit land parcel Kisumu/Mamboleo/UNS.BCR 8 A is not public land or for public use as a slaughter house
  3. 3.An order of permanent injunction restraining the Defendants, their agents, representatives, servants and any other person authorized by them from demolishing, destroying or interfering with the developments on the suit land parcel number Kisumu/Mamboleo/UNS.BCR 8A
  4. 4.Costs of the suit to the Plaintiff

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land; constitutional provisions cited include Articles 40, 62 and 68

Relief refused

#

Damages for loss of rental income

Rental income was pleaded but not proved; no tenancy agreements, receipts, rent books or KRA returns were produced

p. 5

Costs

Costs of the suit awarded to the Plaintiff, costs following the event under Section 27 of the Civil Procedure Act

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

What makes a matter an issue for determination in a suit is that it is pleaded by a party and denied by the opposite party in its pleadings.
p. 3Parties bound by pleadings
I find that no evidence has been tendered that the suit land is public land.
p. 4Burden of proving public land
I find that the allotment of the suit land to the Plaintifi was lawful.
p. 5Lawfulness of allotment
The actions of the Defendants were unlawful and in violation of the Plaintifi’s right to property.
p. 5Violation of Article 40 right to property
No evidence was produced in the form of tenancy agreements, receipts or rent books or KRA returns to show the existence of the rental income and loss thereof due to the unlawful actions of the Defendants.
p. 5Proof of special damages for loss of rental income
the court finds that the Plaintifi has proved his case on a balance of probabilities and enters judgment in his favour for:
p. 6Final orders and disposition

Issues in the judgment

#
minor

The Defendants are not individually named in the judgment text; they are referred to only as 'the Defendants' throughout

minor

The suit's case number is not stated anywhere in the judgment

minor

The suit land parcel number appears with inconsistent spellings in the judgment (UNS. BCR 8A / Maboleo / Moaboleo)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Odhiambo (Suing as the Holder of Power of Attorney on Behalf of Benjamin Ouma Otiende) ((Suing as the Holder of Power of Attorney on Behalf of Benjamin Ouma Otiende)) v County Government of Kisumu & another (Environment & Land Case E029 of 2024) [2025] KEELC 4165 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4165/eng@2025-05-29

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