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ELCPartially AllowedELC No. 164 of 2018· [2025] KEELC 4677 (KLR)

Kasuki t/a Glory Secondary School & 2 others v County Government of Kajiado & 2 others (Environment and Land Case 164 of 2018) [2025] KEELC 4677 (KLR)

Environment and Land Court
19 June 2025
6,514 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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The High Court's land court confirmed two Emali plot owners' rights against Kajiado County, but refused them compensation because they couldn't prove the destruction with proper evidence.

What this practically means

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Executive summary

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The 1st and 2nd Plaintiffs sued the County Government of Kajiado, its officers, and a former Member of the County Assembly for Emali Ward, claiming that on 11th June 2015 the Defendants unlawfully entered their plots at Emali Trading Centre, pulled down fences, dug trenches, marked buildings for demolition with red X signs, threatened repossession, and injured students, with the 3rd Defendant allegedly threatening to evict non-Maasais. They sought a declaration of unlawfulness, a permanent injunction, general damages and costs. The Defendants denied involvement, contended the allotment letters were fraudulently and irregularly acquired, did not confer title, and that the land was reserved for a public cemetery. The 3rd Plaintiff withdrew his claim. The court framed three issues: proof of ownership, reliefs, and costs. It found the Plaintiffs had traced their titles through allotment letters, transfers, rates payments, amalgamation and change of user, that the pleaded fraud was not proved to the elevated standard required, and that the lack of certificates of lease was excused by the Makueni-Kajiado boundary dispute. The Defendants' surveyor's 2019 report and illegible Part Development Plan did not establish that the plots were cemetery land at the time of allocation. However, the trespass and damages claim failed for want of proof, as photographs were uncertified and witnesses did not witness the events. Judgment was entered for the 1st and 2nd Plaintiffs with a declaration of unlawfulness and a permanent injunction, but no damages; each party was ordered to bear its own costs.

Key legal issues

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01

Whether the 1st and 2nd Plaintiffs proved ownership of the suit properties

Holding

The Plaintiffs proved ownership on a balance of probabilities; no evidence showed the allotment letters were illegally or unlawfully acquired

Reasoning

The court traced the documentary trail for each plot: allotment letters, transfer agreements, rates clearance certificates, receipts, amalgamation letter of 15th August 2006 and certificates of search. The Defendants pleaded fraud but did not prove it to the elevated standard required. The absence of certificates of lease was excused by the ongoing Makueni–Kajiado boundary dispute.

p. 11
02

Whether the suit properties were public land reserved for a cemetery

Holding

The Defendants failed to prove the land was reserved as a public cemetery at the time of allocation

Reasoning

The surveyor's report and Part Development Plan post-dated the allocations (the map was prepared in 2018 following a validation exercise), and the PDP was illegible. The court was not provided with the PDP or area map existing at the time of allotment to confirm the land was public. Even if public, reclamation must follow lawful procedures.

p. 11
03

Whether the Defendants trespassed and destroyed property warranting damages

Holding

The claim for general damages failed for want of proof

Reasoning

The Plaintiffs admitted they fled and did not witness the events; no County official was charged with any offence; vehicles were not identified; photographs lacked certification under Section 106B of the Evidence Act and showed no County employees causing destruction. The claim was therefore hearsay and unproven.

p. 11

Legal principles established

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  • A letter of allotment does not confer ownership of land; it is a promise upon meeting certain conditions
  • Fraud must be proved to a standard higher than a balance of probabilities but lower than beyond reasonable doubt
  • Reclamation of public land must follow established legal procedures and mechanisms
  • A party claiming trespass and damages bears the burden of proof, and unauthenticated photographs lack probative value

Court orders

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  1. 1.A declaration that the Defendants' acts of threatening to repossess the plots lawfully allocated to the Plaintiffs by the defunct Ol Kejuado County Council and the destruction to their developments is unlawful
  2. 2.An order of permanent injunction restraining the Defendants, their agents, servants and/or contractors from trespassing on, cutting trenches in, pulling down fences on, demolishing buildings on, interrupting learning activities on, subdividing, repossessing, reallocating or in any other way interfering with the Plaintiffs' Plot Nos. 951, 438A, 70, 72, 86B and 22 at Emali Trading Centre, Kajiado County
  3. 3.Each party to bear own costs
  4. 4.The 3rd Plaintiff's claim marked as withdrawn with no orders as to costs

Authorities

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Legislation

  • Evidence ActSection 107
  • Evidence ActSection 106B(2)
  • Government Lands Act (repealed)Sections 3 and 9

Cases cited (10)

  • Wanjao vs Oyugi & another
    [2022] KEELC 360 (KLR)
  • Torino Enterprises Ltd vs Attorney General
    [2023] KESC 79 (KLR)
  • Dr. Joseph NK Arap Ngok vs Justice Moijo Ole Keiyua & 4 others
  • Munyu Maina vs Hiram Gathiha Maina
    [2013] eKLR
  • Lagat vs Kebut
    [2023] KEELC 18432 (KLR)
  • Harison Mwangi Nyota vs Naivasha Municipal Council & 20 others
    [2019] eKLR
  • Nelson Kazungu Chai & 9 others vs Pwani University College
    (2014) eKLR
  • Dina Management Ltd vs County Government of Mombasa & 5 others
    [2023] KESC 30 (KLR)
  • Speaker of the County Assembly of Kisumu & another vs The Clerk Kisumu County Assembly Service Board & others
    [2015] eKLR
  • Elizabeth Kamene Ndolo v George Matata Ndolo
    [1996] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution over disputes relating to land; suit first filed at ELC Nairobi and transferred to Kajiado

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, "Kasuki t/a Glory Secondary School & 2 others v County Government of Kajiado & 2 others (Environment and Land Case 164 of 2018) [2025] KEELC 4677 (KLR)", Case Analysis (2025). ELC No. 164 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4677/eng@2025-06-19

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