https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4654

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELCLC E016 OF 2025** **DAVID NGUGI (Suing on his behalf and that of other** **plot owners whose plots were annexed by Kamahuha** **Girls High School)………………………...............................................................................PLAINTIFF** **VERSUS** **COUNTY GOVERNMENT OF MURANG’A .......................................................... 1ST DEFENDANT** **NATIONAL LAND COMMISSION……………………………….…………..…….2ND DEFENDANT** **AND** **LAND REGISTRAR, MURANG’A………………………………………….1ST INTRESTED PARTY** **THE BOARD OF MANAGEMENT** **KAMAHUHA GIRLS HIGH SCHOOL…………………………..……..…2ND INTRESTED PARTY** **MINISTRY OF EDUCATION …………………………………….…..…….3RD INTRESTED PARTY** **JUDGMENT** 1. The Plaintiff’s seek the following reliefs against the Defendants. 2. **A declaration be issued that the Plaintiff, alongside other persons suing through the Plaintiff, are the rightful beneficiaries to land parcel No. Loc. 17/Kamahuha/916 as compensation for land compulsorily acquired for the expansion of the 2nd interested party.** 3. **A permanent injunction restraining the Defendants from allocating or using land parcel No. Loc.17/Kamahuha/916 for any purpose other than compensation for the Plaintiff and fellow plot owners.** 4. **An order compelling the Defendants to immediately transfer the said property to the names of persons forwarded by the predecessor of the 1st Defendant, the County Council of Murang’a vide letter dated 13-2-1991 and approved by the Council vide minute 40/86 on 2-12-1986.** 5. **An order authorizing the 2nd interested party to execute all requisite documents for the subdivision and transfer of the said property.** 6. **Costs of subdivision of land Parcel No. Loc.17/Kamahuha/916 and issuance of titles be borne by the 2nd Interested party through the 3rd interested party.** 7. **Alternatively, the Defendants be compelled to make payment of just** **compensation in full for the compulsory acquisition of the annexed plots for use and expansion of Kamahuha Girl’s High School in monetary terms and/or alienate for transfer of an alternative parcel of land.** 1. **General damages for losses suffered by the Plaintiff due to the inordinate delay in transferring parcel No. Loc. 17/Kamahuha/916.** 2. **Costs and interest of this suit.** 3. **Any other relief this court may deem just and fit.** 4. The Plaintiffs’ case is as follows. Firstly, he and other plot owners are the registered owners of various plots that are currently occupied by the 2nd interested party. In the year 1986, the suit plots were alienated by the then Provincial Administration and then defunct County Council of Murang’a together with the 3rd interested party. Despite strong opposition by the Plaintiff and his family at the time, they were forcefully moved without any recourse or compensation. The 2nd interested party has since fenced off the land and built permanent house and multi-stroyed buildings on the land. 5. Secondly, years later, the Plaintiffs came to learn that the then County Council sat on 2-12-1986 and agreed to compensate the Plaintiff and his fellow proprietors on an equal basis from parcel No. Loc. 17/Kamahuha/916. The Plaintiff came across this crucial information by sheer coincidence when he sued the 2nd interested party in Civil case No. 200 of 2013; David Ngugi vs BOG Kamahuha Girls High School and the subsequent appeal in Murang’a ELC Appeal No. 12 of 2020 where he sought the 2nd interested party to vacate his two plots which are Loc. 17/Saba Saba/T.1229 and T.231. It is in the above case that the 2nd interested party tendered minutes of the defunct Murang’a County Council passing a resolution to compensate plot owners whose land was annexed for the expansion of the school. A total of 123 plot owners were to be compensated with L.R. No. Loc.17/Kamahuha/916 which is public land. It is on the basis of this resolution that the court found that the 2nd interested party had acquired title through adverse possession and that the Plaintiff had been offered compensation. To date, the Plaintiff as well as other plot owners have never been allocated their share from parcel No. Loc.17/Kamahuha/916. The said parcel is currently owned by the defunct Trust Land Board which automatically vested upon the 1st Defendant upon its commencement under the new Constitution. 6. Thirdly, the Plaintiff has made countless efforts to get audience and assistance from the Defendants but they all turned a blind eye. It is in the interests of justice that property owners deprived of their land through compulsory acquisition for public use be compensated promptly, justly and in full as envisioned both in the repealed constitution under Sections 117 and 118 and the 2010 Constitution under Article 40. 7. Finally, despite demand having been made and notice of intention to sue having been given, the Defendants have refused, failed and/or neglected to effect transfer or offer any compensation to the Plaintiff. 8. In support of his case, the Plaintiff filed the following material. 9. **Plaintiff’s witness statement dated 27-3-2025.** 10. **Copy of court order dated 23-6-2023 in ELC Murang’a Misc. Case No. 5 of 2021.** 11. **Copies of certificates of official search for L.R. No. Loc.17/Saba saba/T.129 and T. 231.** 12. **Copies of title deeds for L.R. No. Loc. 17/Saba saba/T. 229,T.231, T.215, T.188 in the names of David Ngugi, James Laban Mwangi and Lucy Wangari Macharia respectively.** 13. **Copies of the minutes of the social services committee of Murang’a County Council meeting held on 2-12-1986 and a letter from the County Council to the headmistress of the 2nd interested party.** 14. **Copy of sketch plan for Loc.17/Kamahuha/916 showing a total of 123 plots as compensation of plots annexed by the 2nd interested party.** 15. **Copy of certificate of official search for L.R. No. Loc.17/Kamahuha/916.** 16. **Correspondence between the Plaintiff and the National Land Commission between the years 2017 and 2019 over this dispute as a historical injustice case.** 17. **Copy of judgment in Murang’a CM’s case No. 200 of 2013.** 18. **Copy of judgment in Murang’a ELC Appeal case No. 12 of 2020 dated 28-1-2021.** 19. **Copy of demand letter to the National Land Commission dated 21-2-2025.** 20. **Copy of demand letter to the Murang’a County Coordinator dated 21-2-2025.** . 1. It its written statement of defence dated 23-10-2025 the first Defendant responds as follows. Firstly, the Plaintiff’s claim is denied. Secondly, the Plaintiff lacks capacity to institute the suit on behalf of other plot owners as none of them has filed their written authority authorizing the Plaintiff to claim on their behalf. Thirdly, the Plaintiffs’ suit is time barred by virtue of the provisions of Public Authorities Limitation Actions Act. The Court therefore lacks jurisdiction to hear and determine the claim. Fourthly, the Plaintiff is guilty of laches to the detriment and prejudice of the 1st Defendant. Fifthly, the Plaintiff ought to have ought compensation under the repealed Land Acquisition Act by 1989. Sixthly, the alleged compulsory acquisition occurred during the regime of the old Constitution and the case cannot be entertained under the current constitution on alleged historical injustice grounds. Seven, by the time the 2010 Constitution came into force and L.R. No.Loc. 17/Kamahuha/916 came under its management, the Plaintiff’s claim to the suit land as compensation had already lapsed. The land was therefore acquired by the 1st Defendant free of any claims. Eight, the Plaintiff did not exhaust remedies laid down in law before coming to Court. Nine, the land occupied by Kamahuha Girls High School was not ancestral land but public land allocated to or set aside for use by the school. The Plaintiff did not acquire the said land legally. His occupation of the said land was illegal ab initio. Finally, the suit is res judicata because the Plaintiff filed and prosecuted Murang’a CMCC 200 of 2013 in which he ought to have litigated the issue of compensation as an alternative prayer. The suit was dismissed for being time barred. For the above and other reasons, the 1st Defendant prays for the dismissal of the suit with costs. The Defendant’s defence was not accompanied by any witness statements or documents. 1. The Honourable the Attorney General filed a statement of defence for the interested parties dated 5-5-2024 in which it is stated as follows. One, all the averments in the plaint are denied. Two, the interested parties are strangers to all the averments and they have no knowledge of them. Finally, the prayers sought are untenable and ought to be denied and the Plaintiffs’ suit dismissed with costs. The interested parties defence was not accompanied by any witness statement or documents. 1. When the case came up for hearing on 17-6-2026, only the Plaintiff’s Counsel attended court. The case proceeded the absence of the other counsel notwithstanding, for reasons on record. At the trial, the Plaintiff testified by adopting his witness statement and documents as his evidence in chief. 2. The Plaintiff’s counsel filed written submissions dated 1-7-2026 and identified the following issues in the submissions. 3. **Whether the former County Council of Murang’a held L.R. No. Loc.17/Kamahuha/916 as Trust Land and whether minute No. 40/86 created an enforceable obligation in favour of the Plaintiff.** 4. **Whether the 1st Defendant as the successor to the former County Council of Murang’a inherited the obligations arising from that resolution.** 5. **Whether the Plaintiff has proved on a balance of probabilities, that the Defendant has failed to honour the said obligations and is therefore liable to transfer the suit property to the beneficiaries.** 6. **Whether the Defendant’s pleaded defences of limitation, laches, res jurisdiction, want of capacity and all other technical objections and sustainable in law and in fact.** 7. **Whether the Plaintiff is entitled to the orders sought.** 8. I have carefully considered all the evidence adduced in this case by the Plaintiff as well as the issues identified by the 1st Defendant’s counsel in the defence dated 23-10-2025. I find that in addition to the issues identified by the Plaintiff’s counsel, these others also arise. 1. **Whether the Plaintiff can properly represent the other claimant without their written authority.** 2. **Whether the Plaintiff’s suit is time barred by virtue of the Public Authorities Limitation Act.** 3. **Whether the Plaintiff’s suit is caught up by laches.** 4. **Whether the Plaintiff ought to have sought compensation under the Land Acquisition Act.** 5. **Whether the Plaintiff exhausted all the remedies laid down in law before coming to court.** 6. **Whether the Plaintiffs’ land acquired by the School was public or private land.** 9. Regarding the first issue framed by the Plaintiffs’ counsel, I find that the 1st Defendant cannot avoid the obligation of the former County Council of Murang’a to the Plaintiffs. There is a commitment in writing that the Plaintiff would be compensated with land belonging to the County Council. The land is specified. It is then not allocated as expected. The 1st Defendant inherits the land earmarked for the Plaintiff and then refuses to transfer as expected. This is not fair. It also not being allocated for free. It is in exchange of two parcels which belong to the Plaintiff and which are still in his name but which are occupied by the 2nd interested party. There is uncontroverted evidence that it is only during the hearing of Murang’a CM’s case No. 200 of 2013 that the Plaintiff learnt of the commitment by the County Council of Murang’a to compensate him for his annexed land. The moment he learnt of this he filed claims of historical land injustice with the 2nd Defendant. It would be unconscionable for the 1st Defendant to refuse to compensate the Plaintiff after previously promising to do so. The Plaintiff is not at fault at all. The fault is on the part of the defunct County Council and the first Defendant for failing to honour their responsibilities. The 1st Defendant is bound by the National values and principles of governance in Article 10 of the Constitution which bind all state organs whenever they make or implement public policy decisions. These values include equity, good governance and transparency. The County Government cannot run away from this commitment. This finding covers the second issue. 1. It is my finding that the Plaintiff cannot purport to represent the other claimants of the suit land without naming them and them complying with **Order 1 rule 13** of the **Civil** **Procedure Rules** as to filing of a signed authority. The rule provides­- 1. **“ Where there are more Plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding, an in the like manner, where there are more Defendants than one, any one or more of them may be authorized by any other or them to appear, plead or cut for such other in any proceeding.** 2. **The authority shall be in writing signed by the party giving it and shall be filed in the case.”** The Plaintiff did not file even a single authority signed by his co-beneficiaries of the suit land. This requirement is mandatory because of the use of the word “shall”. Failure to file the requisite authorities duly singed by the co-beneficiaries means that the Plaintiff only represents himself in this case. For the reasons given in paragraph [12] above, I find that the Plaintiff’s suit is not time barred. This finding covers the 3rd and 4th issues in paragraph [11] of this judgment. 1. The Defendant has talked of the Plaintiff’s failure to exhaust all remedies laid down in law before coming to Court. I cannot think of any such remedies and the 1st Defendant has not mentioned any. I have seen a copy of a letter dated 21-2-2025 written by the Plaintiff’s counsel to the 1st Defendant. The first Defendant should have responded to the letter and suggested those remedies. More importantly, as a state organ bound by Article 10, and expected to apply the National values and principles of governance, it should have sought to address this grave injustice of the Plaintiff’s land acquired for a public purpose without compensation despite a written commitment. *“ Commodum ex injuria sua nemo habere debet*” translates into “no one should benefit from their own wrong doing.” It was the 1st Defendant to compensate the Plaintiff. He has been waiting for this compensation since the year 1986. He has filed a suit, an appeal and written to the National Land Commission. He has not succeeded. What else was he expected to do after writing the demand letter dated 21-2-2025. Filing this suit was the next option for him. The first Defendant should not have let this case come to Court. It should have been settled the case immediately after the demand letter was received. 1. On the final issue lifted from the 1st Defendant’s defence, I find that the Plaintiff’s land is private land and the land earmarked for compensating him is public land. The Defendant had all the chance to file evidence and prove the alleged fraud in the Plaintiffs’ acquisition of the two plots Loc. 17/Saba Saba/T.1229 and T.231. No such evidence was filed. The averments in the defence by the first Defendant are not proved at all. 1. Looking at the Plaintiff’s third issue in paragraph [10] above, I find from the totality of the above findings is that the Plaintiff has proved that the 1st Defendant has failed to honour its obligations and is therefore liable to transfer the suit property to the Plaintiff. 2. Finally on whether Murang’a CM’s Case No. 200 of 2013 dealt with the issues raised in this case, I find it did not. In that case, the Plaintiff sought to evict the 2nd interested party from Plot Nos. Loc. 17/Saba saba/T.1229 and T.231 by removing their buildings and in the alternative, he sought compensation. In this case he seeks none of the above. He seeks to be allocated part of L.R. No. Loc.17/Kamahuha/916. Those are two different causes of action. Further to this, the Plaintiff is still the registered owner of Loc. 17/Saba saba/T.1229 and T.231. The 1st Defendant has not obtained any judgment against the Plaintiff to say that it is the new owner of the two parcels. I am therefore persuaded by the argument by the Plaintiff’s counsel that failure to register the Plaintiff as the owner of the part of Loc.17/Kamahuha/916 is a continuing breach and his cause of action against the Defendants and the interested parties remains fresh until he is compensated with land equivalent in value to the land registered in his name. 3. For the above stated reasons, I find that the Plaintiff has proved his case against the 1st Defendant. I enter judgment for the Plaintiff against the 1st Defendant in terms of prayers **a, b, c, d, e** and **f** but for the Plaintiff alone. Costs to the Plaintiff. **It is so ordered.** **Dated, signed and delivered virtually at Murang’a this 20th day of July, 2026.** **M. N. GICHERU** **JUDGE** **Delivered online in the presence of:-** **Court Assistant– Jackline** **Plaintiff’s Counsel – Mr Chahilu** **Defendant’s Counsel – Absent** **Interested parties Counsel - Absent**