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ELCDismissedPetition No. 8 (E010) of 2021· [2025] KEELC 7405 (KLR)

Mahungu & another v Wabiru & another (Environment and Land Appeal 12 of 2023) [2025] KEELC 7405 (KLR)

Environment and Land Court
28 October 2025
LKL.G. Kimani
3,664 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~15 min to read original · ~4 min brief

The bottom line

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Buyers of Kenyan urban plots must verify plot size with surveys before purchase, because courts will not cancel neighbouring allocations without solid proof.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Nyeri against the judgment of Hon. D.K. Matutu, Senior Principal Magistrate, Mukurweini, in ELC Case No. 6 of 2018 delivered on 16th May 2023. The Appellants, who purchased Plot No. 4 at Kiahungu Trading Centre in December 2009, alleged that Plot No. 100 was illegally, unprocedurally and through collusion excised from their plot and allotted to the 1st Respondent, and had sought a declaration that the excision was illegal, cancellation of Plot No. 100, restoration of Plot No. 4 and demolition of structures. The trial court dismissed the suit, finding the Appellants had failed to prove their case on a balance of probabilities. On appeal, L.G. Kimani J consolidated the four grounds of appeal into a single issue: whether the trial magistrate disregarded the Appellants' evidence of the illegal excision. The court found that no document exhibited by either side stated the size of either plot; the sale agreement sold the plot 'as is'; the Appellants produced no beacon certificate or surveyor evidence, and comparison with adjoining plots was unsatisfactory proof of encroachment. Plot No. 100 was shown to have been allotted as a general kiosk in 1995 and converted to a permanent plot in 2006, long before the Appellants' purchase. Applying Sections 107 and 108 of the Evidence Act and the Part Development Plan jurisprudence, the court held the Appellants failed to discharge their burden, including on collusion. The appeal was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the Appellants proved that Plot No. 100 was illegally and unprocedurally excised from Plot No. 4

Holding

The appeal was dismissed; the Appellants failed to prove the size of their plot or the alleged illegal excision, and the trial court's finding was not disturbed.

Reasoning

The court found that none of the documents exhibited by either side stated the size of Plot No. 4 or Plot No. 100. The Appellants did not seek confirmation of the plot size before purchase, produced no beacon certificate, and comparison with adjoining plots was unsatisfactory evidence of size. Plot No. 100 had been allocated to the 1st Respondent (kiosk in 1995, converted to permanent plot in 2006) long before the Appellants bought Plot No. 4 in 2009.

p. 6
02

Burden of proof and proof of collusion

Holding

The Plaintiffs bore the burden of proving the alleged collusion between the 1st Defendant and officials of the 2nd Defendant's predecessor and failed to discharge it.

Reasoning

Relying on Sections 107 and 108 of the Evidence Act and the Mbuthia Macharia decision, the court held that whoever desires a court to give judgment on asserted facts must prove them; the Plaintiffs' assertion that creating a plot from already allocated land proved collusion 'by itself' was rejected as far from the truth.

p. 7
03

Procedure for allocation of plots within urban areas

Holding

Allocation requires an approved Part Development Plan, letter of allotment, cadastral survey and certificate of lease; the Appellants' failure to produce a beacon certificate or surveyor evidence weakened their case.

Reasoning

The court adopted the reasoning in Nelson Kazungu Chai and African Line Transport on the PDP-based allocation process under the repealed Government Lands Act, and noted the Plaintiffs produced a map but called no surveyor to authenticate it, while the County Government called no witnesses at all.

p. 6

Legal principles established

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  • A party who alleges a fact must prove it; the plaintiffs bore the burden of proving their case on a balance of probabilities.
  • On a first appeal the court reconsideres and evaluates the evidence afresh while making allowances for not having seen or heard the witnesses.
  • Allocation of urban plots must be accompanied by an approved Part Development Plan, followed by a letter of allotment, survey and issuance of a certificate of lease.

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondents.

Authorities

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Legislation

  • Evidence ActSection 107
  • Evidence ActSection 108
  • Evidence ActSections 107-109
  • Government Lands Act (repealed)Part Development Plan requirements

Cases cited (4)

  • Gitobu Imanyara & 2 others v Attorney General
    [2016] e KLR
  • Nelson Kazungu Chai & 9 Others vs. Pwani University
    [2014] eKLR
  • African Line Transport Co. Ltd v The Hon. Attorney General, Mombasa, HCCC No. 276 of 2003
    [2007] eKLR
  • Mbuthia Macharia v Annah Mutua Ndwiga & another
    Civil Appeal No. 297 of 2015 {2017} e KLR
On appeal from
Senior Principal Magistrate's Court, Mukurweini
ELC Case No. 6 of 2018
Jurisdiction invoked
First appeal from the Senior Principal Magistrate's Court under 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 (15)

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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, "Mahungu & another v Wabiru & another (Environment and Land Appeal 12 of 2023) [2025] KEELC 7405 (KLR)", Case Analysis (2025). Petition No. 8 (E010) of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7405/eng@2025-10-28

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