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ELCPartially AllowedELC Case No. 307 of 2017

Dr. Rev Humphrey Irungu, Nelson Nyoike Nganga & Elisha Odhiambo Abuonji (suing for and on behalf of Kakoe Anglican Church of Kenya) v The City County of Nairobi, Walter Ojwang Dibogo & Catherine Njeri Nduati

Environment and Land Court
23 September 2026
6,281 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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A Nairobi church lost its Kayole plot because the seller didn't own it, but won back its full purchase price with interest.

What this practically means

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Executive summary

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The plaintiffs, officials of the Kakoe Anglican Church of Kenya, sued the City County of Nairobi, Walter Ojwang Dibogo and Catherine Njeri Nduati over Plot No.32 Kayole Shopping Centre. The church bought the plot from the 3rd Defendant for Kshs.1,350,000 on 14th January 2013, tracing title through Joseph Gateri Kimaru, said to have been allotted a repossessed plot by Letter of Allotment dated 12th July 2003. The 1st Defendant maintained the plot was allotted to the 2nd Defendant on 18th January 1994 and was never repossessed; the 2nd Defendant counterclaimed for ownership, eviction, injunction and mesne profits. The court framed three issues: ownership of the plot, entitlement to the Plaint's orders, and entitlement to counterclaim relief. It held that ownership of unregistered land is proved by tracing the root of title; that repossession must be evidenced, for example by Housing Committee minutes, and none existed; and that a second allotment cannot stand where an earlier one subsists. The 1st Defendant, as allotting authority and custodian of records, consistently confirmed the 2nd Defendant's ownership. The unregistered Power of Attorney used in the Gateri Kimaru transaction could not confer legal right. The plaintiffs' suit against the 1st and 2nd Defendants was dismissed, but they succeeded on the alternative refund claim against the 3rd Defendant. The court declared the 2nd Defendant absolute owner, ordered eviction of the plaintiffs after 90 days, a permanent injunction, refund of the purchase price with interest, and Kshs.1,000,000 mesne profits borne by the 3rd Defendant, who also bears the costs of all parties.

Questions the Court framed

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

  1. 1.Who between the Plaintiffs and the 2nd Defendant has established ownership of Plot No.32 Kayole Shopping Centre?
  2. 2.Whether the Plaintiffs are entitled to the Orders as sought in the Plaint
  3. 3.Whether the 2nd Defendant is entitled to the Orders as sought in the Counterclaim

Key legal issues

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01

Ownership of the suit plot between competing allotment letters

Holding

The 2nd Defendant's allotment dated 18th January 1994 prevails; the plot was never repossessed or reallocated to Joseph Gateri Kimaru

Reasoning

The 1st Defendant, the allotting authority and custodian of records, confirmed through DW1 that the plot was allocated to the 2nd Defendant and no minutes of repossession by the Housing Development Committee existed. The Plaintiffs and 3rd Defendant, who alleged repossession and reallocation, bore the burden of proving it but tendered no such evidence. Competing authorities confirm a second allotment cannot stand where an earlier one subsists.

p. 31
02

Whether the Plaintiffs proved their claim to the orders in the Plaint

Holding

Plaintiffs failed to prove their case against the 1st and 2nd Defendants; only the alternative refund claim against the 3rd Defendant succeeded

Reasoning

The Plaintiffs' chain of title rested on an allotment to Joseph Gateri Kimaru of a supposedly repossessed plot, but no evidence of repossession was tendered. The Power of Attorney used in the transaction was unregistered and could not confer legal right. Since the plot did not belong to Gateri Kimaru, the 3rd Defendant sold what she did not own, entitling the Plaintiffs only to a refund.

p. 32
03

Whether the 2nd Defendant is entitled to mesne profits on his counterclaim

Holding

Mesne profits of Kshs.1,000,000 awarded, to be borne by the 3rd Defendant as originator of the dispute

Reasoning

Although the 2nd Defendant was wrongfully deprived of his property and entitled to mesne profits under Section 2 of the Civil Procedure Act, he quantified the claim only at submissions without proof. The court considered the Plaintiffs' trespass but noted they were not doing business on the plot, and awarded a minimum amount, with liability placed on the 3rd Defendant who originated the dispute.

Legal principles established

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  • Ownership of unregistered land is proved by tracing the root of title through an unbroken chain of documentary evidence
  • A second allotment of land cannot stand where a valid earlier allotment subsists and has not been cancelled
  • Repossession of an allotted plot must be proved by evidence such as committee minutes; it cannot merely be inferred

Court orders

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  1. 1.Declaration that Plot No.32 situated at Kayole Shopping Centre (commercial) within the City County of Nairobi belongs absolutely to the 2nd Defendant
  2. 2.The 3rd Defendant to refund to the Plaintiffs the purchase price of Kshs.1,350,000 with interest at court rates from the date of judgment until payment in full
  3. 3.Order evicting the Plaintiffs from the suit property after ninety (90) days from the date of judgment
  4. 4.Permanent injunction against the Plaintiffs and 3rd Defendant from entering, developing or interfering with the suit property
  5. 5.Mesne profits of Kshs.1,000,000 awarded to the 2nd Defendant, to be borne by the 3rd Defendant
  6. 6.Costs of the suit and counterclaim awarded to the 1st and 2nd Defendants, to be borne by the 3rd Defendant
  7. 7.Costs of the Plaintiffs to be borne by the 3rd Defendant

The bench

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

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and the Environment and Land Court Act

Relief refused

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Plaintiffs' declaration of ownership of the suit plot and injunction against the Defendants

Plaintiffs failed to prove repossession of the plot and reallocation to Joseph Gateri Kimaru; claims pegged on a Letter of Allotment for a plot that was never repossessed

p. 31

2nd Defendant's mesne profits claim of Kshs.100,000 x 12 x 13 years

Insufficient proof of the quantum in pleadings or exhibits; only a mabati structure and foundation wall existed

p. 34

Costs

Costs of the suit and Counterclaim awarded to the 1st and 2nd Defendants to be borne by the 3rd Defendant; costs of the Plaintiffs to be borne by the 3rd Defendant.

Quotable passages

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

i. A declaration be and is hereby issued that Plot No.32 situated at Kayole Shopping Centre (commercial) within the City County of Nairobi belongs absolutely and continue to be owned by the 2nd Defendant being the genuine, true and just registered proprietor.
p. 35Declaration of ownership - final orders
ii. The 3rd Defendant be and is hereby ordered to refund to the Plaintiffs, the purchase price of kshs.1,350,000/=, together with interest thereon at Court rates from the date of this judgement until payment in full.
p. 36Refund of purchase price
iii.An order be and is hereby issued evicting the Plaintiffs from the suit property after ninety (90) days from the date hereof.
p. 36Eviction
v. Mesne profits awarded to the 2nd Defendant at Kshs. 1,000,000/= to be borne by the 3rd Defendant.
Mesne profits
… tracing ownership of unregistered land is dependent on tracing the root of title.
p. 26Root of title in unregistered land
This Court has on previous occasions found that in such a situation, the second allotment cannot stand.
p. 27Double allocation
It is further worthnoting that the Power of Attorney used to effect the transaction between the 3rd Defendant and Plaintiffs was not even registered and hence could not confer any legal right.
p. 30Unregistered power of attorney

Issues in the judgment

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minor

Demand letter date inconsistency

minor

Impossible year in DW1's evidence

minor

Authorities dated after commencement of suit relied on without comment

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, "Dr. Rev Humphrey Irungu, Nelson Nyoike Nganga & Elisha Odhiambo Abuonji (suing for and on behalf of Kakoe Anglican Church of Kenya) v The City County of Nairobi, Walter Ojwang Dibogo & Catherine Njeri Nduati", Case Analysis (2026). ELC Case No. 307 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5560/eng@2026-09-23

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