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
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Who between the Plaintiffs and the 2nd Defendant has established ownership of Plot No.32 Kayole Shopping Centre?
- 2.Whether the Plaintiffs are entitled to the Orders as sought in the Plaint
- 3.Whether the 2nd Defendant is entitled to the Orders as sought in the Counterclaim
Key legal issues
#Ownership of the suit plot between competing allotment letters
The 2nd Defendant's allotment dated 18th January 1994 prevails; the plot was never repossessed or reallocated to Joseph Gateri Kimaru
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.
Whether the Plaintiffs proved their claim to the orders in the Plaint
Plaintiffs failed to prove their case against the 1st and 2nd Defendants; only the alternative refund claim against the 3rd Defendant succeeded
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.
Whether the 2nd Defendant is entitled to mesne profits on his counterclaim
Mesne profits of Kshs.1,000,000 awarded, to be borne by the 3rd Defendant as originator of the dispute
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
#- 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
#- 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.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.Order evicting the Plaintiffs from the suit property after ninety (90) days from the date of judgment
- 4.Permanent injunction against the Plaintiffs and 3rd Defendant from entering, developing or interfering with the suit property
- 5.Mesne profits of Kshs.1,000,000 awarded to the 2nd Defendant, to be borne by the 3rd Defendant
- 6.Costs of the suit and counterclaim awarded to the 1st and 2nd Defendants, to be borne by the 3rd Defendant
- 7.Costs of the Plaintiffs to be borne by the 3rd Defendant
The bench
#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
#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
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
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
#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.
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.
iii.An order be and is hereby issued evicting the Plaintiffs from the suit property after ninety (90) days from the date hereof.
v. Mesne profits awarded to the 2nd Defendant at Kshs. 1,000,000/= to be borne by the 3rd Defendant.
… tracing ownership of unregistered land is dependent on tracing the root of title.
This Court has on previous occasions found that in such a situation, the second allotment cannot stand.
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.
Issues in the judgment
#Demand letter date inconsistency
Impossible year in DW1's evidence
Authorities dated after commencement of suit relied on without comment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.