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ELCDismissed· [2025] KEELC 6058 (KLR)

County Government of Kakamega & another v Nyandieki & 4 others (Environment and Land Case 134 of 2016) [2025] KEELC 6058 (KLR)

Environment and Land Court
18 September 2025
3,258 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kakamega County lost its land claim because it produced no proof of compulsory acquisition, and the court struck out a bank counterclaim for lacking jurisdiction.

What this practically means

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Executive summary

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The County Government of Kakamega, as sole surviving plaintiff after the Second Plaintiff's case was withdrawn, sued over land parcel S. Wanga/Ekero/1676, alleging it was hived off parcel S. Wanga/Ekero/472 which had been compulsorily acquired by the Government around 1972. It sought a permanent injunction against the Fourth and Fifth Defendants (chargee and chargee's agent), a declaration that the suit property belongs to it, and cancellation of title. The Fourth and Fifth Defendants counterclaimed for KShs 1,161,942 outstanding under a KShs 2 million loan secured by a charge over the suit property in favour of the Second Defendant. The court framed three issues: jurisdiction, compulsory acquisition, and reliefs. Applying binding Court of Appeal authority (Co-operative Bank v Kangethe Njuguna and successors), it held the counterclaim, being purely for recovery of sums due under a charge, fell outside Article 162(2)(b) jurisdiction and struck it out. On compulsory acquisition, the plaintiff produced no register, search or evidence of compliance with the Land Acquisition Act (repealed) procedures, so acquisition was not established. The Second Defendant's registered title was protected under Sections 24 and 26 of the Land Registration Act and Article 40, and the Amended Pleant pleaded no Section 26(1) ground against the Second Defendant. The plaintiff's suit was dismissed with costs to the First to Third Defendants, to be borne by the plaintiff.

Key legal issues

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01

Jurisdiction over the Fourth and Fifth Defendants' counterclaim for loan arrears under a charge

Holding

The Court lacks jurisdiction; the counterclaim is purely a commercial claim for recovery of sums due under a charge and is struck out

Reasoning

The Court of Appeal has severally held that the ELC lacks jurisdiction over claims for sums due under mortgages and charges. The counterclaim is purely for recovery of KShs 1,161,942 under a lending contract secured by a charge. Binding precedent (Co-operative Bank v Kangethe Njuguna) holds such claims fall within the High Court's civil jurisdiction. The dominant issue test confirms the counterclaim is not about use of, or title to, land.

p. 6
02

Whether compulsory acquisition of S. Wanga/Ekero/472 was established

Holding

Not established; the Plaintiff adduced no evidence of compliance with the Land Acquisition Act (repealed) procedure

Reasoning

The alleged acquisition occurred around 1972 when the Land Acquisition Act (repealed) was in force. That Act prescribed elaborate procedures at Part II. The Plaintiff produced neither the register nor certificate of search for parcel 472 and adduced no evidence of compliance with the acquisition procedure, so the claim of compulsory acquisition failed.

p. 6
03

Whether the Second Defendant's title to the suit property should be cancelled

Holding

Title stands; the Amended Plaint does not plead any of the Section 26(1) grounds against the Second Defendant

Reasoning

The Second Defendant is the undisputed registered proprietor, entitled to Article 40 constitutional protection and Sections 24 and 26 of the Land Registration Act. Section 26 obligates the Court to accept the certificate of title as prima facie evidence of proprietorship unless fraud or illegality is proved against the proprietor. The fraud pleaded was against the First Defendant only and concerned the statutory power of sale.

p. 6

Legal principles established

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  • The ELC lacks jurisdiction to hear and determine claims for recovery of sums due under mortgages and charges; the dominant issue in the dispute determines jurisdiction
  • A registered proprietor's title is prima facie evidence of proprietorship and can only be nullified on the grounds in Section 26(1)(a) or (b) of the Land Registration Act
  • Parties cannot confer jurisdiction on a court; jurisdiction flows from the Constitution or legislation

Court orders

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  1. 1.The Fourth and Fifth Defendants' counterclaim is struck out for want of jurisdiction
  2. 2.The Plaintiff's case is dismissed
  3. 3.The First to Third Defendants shall have costs of the suit, to be borne by the Plaintiff

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticles 42, 69 and 70
  • Environment and Land Court ActSections 13(1)-(4)
  • Land Registration ActSections 24, 26 and 26(1)(a) and (b)
  • Land ActSection 150 (referenced in quoted authority)
  • Land Acquisition Act (repealed)Part II

Cases cited (6)

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • R v. Karisa Chengo
    [2017] eKLR
  • Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others
    [2017] eKLR
  • Joel Kyatha Mbaluka t/a Mbaluka & Associates Advocates v Daniel Ochieng Ogola t/a Ogola Okello & Co Advocates
    [2019] eKLR
  • Bank of Africa Kenya Limited & another v TSS Investment Limited & 2 others
    [2024] KECA 410 (KLR)
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Sections 13(1)-(4) of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "County Government of Kakamega & another v Nyandieki & 4 others (Environment and Land Case 134 of 2016) [2025] KEELC 6058 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6058/eng@2025-09-18

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