[2020] KEELC 3062 (KLR)
The court found that while the plaintiff was allocated plot 1A and permitted to extend to plot 1B, the extension was conditional upon development within 12 months. The plaintiff only fenced plot 1B and did not provide evidence of further development. The court held that mere fencing did not satisfy the development...
Source-derived case information.
- Citation
- [2020] KEELC 3062 (KLR)
- Parties
- Plaintiff: Laban Masinjila; Defendant: Suluman Sumba; Defendant: Min. for Lands County Ministry of Lands; Defendant: County Government of Kakamega
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 279 of 2014
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- suit dismissed with costs
- Judges
- NA Matheka
- Legal Topics
- Public Land Trusteeship, Allocation of Public Land, Licencee Rights, Conditions of Allocation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Laban Masinjila
Plaintiff
Suluman Sumba
Defendant
Min. for Lands County Ministry of Lands
Defendant
County Government of Kakamega
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is the lawful owner of Plot No. 1 Idakho/Shikulu market and its extension.
- 2 Whether the defendants trespassed on the plaintiff's property without consent or authority.
- 3 Whether the plaintiff fulfilled the conditions attached to the allocation of the extension (plot 1B).
Ratio Decidendi
The court found that while the plaintiff was allocated plot 1A and permitted to extend to plot 1B, the extension was conditional upon development within 12 months. The plaintiff only fenced plot 1B and did not provide evidence of further development. The court held that mere fencing did not satisfy the development condition, and thus the County Government was entitled to repossess the extension. The plaintiff failed to prove ownership or entitlement to the extension on a balance of probabilities. Consequently, the plaintiff's suit was dismissed with costs, as he did not fulfill the conditions necessary to claim the disputed property.
Court Disposition
suit dismissed with costs
Orders
- The plaintiff's suit is dismissed with costs to the defendants.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KAKAMEGA
ELC CASE NO. 279 OF 2014
LABAN MASINJILA.........................................................................PLAINTIFF
VERSUS
SULUMAN SUMBA, MIN. FOR LANDS COUNTY MINISTRY OF LANDS
COUNTY GOVERNMENT OF KAKAMEGA.........................DEFENDANTS
JUDGEMENT
The plaintiff avers that at all material times to this suit he is and was the owner of and entitled to the possession of Plot No. 1 Idakho/Shikulu market and its extension situated in Kakamega South District. The defendant has without any colour of right, consent and or authority of the plaintiff entered into the said plot and thereby trespassed and is still trespassing thereon and has interfered with his peaceful enjoyment of the said plot by fencing and has started constructing a toilet on the extension of the said plot. The defendant threatens and intends, unless restrained by this honourable court to continue to waste the said plot by constructing and being in wrongful occupation of the said plot and trespass thereon. The plaintiff has been deprived of the use and enjoyment of the said plot and has thereby suffered loss and damage. The plaintiff prays for judgment against the defendant for:-
1. A declaration that the plaintiff is the lawful owner of the said plot.
2. An order for vacant possession.
3. A permanent injunction restraining the defendant by himself, his servants and/or agents or otherwise howsoever from remaining on or continuing in occupation of the said plot.
4. Mesne profits.
5. Costs of this suit.
The defendants deny that they have without any colour of right, consent and/or authority of the plaintiff entered into the said plot and thereby trespassed and still trespassing thereon and interfered with his peaceful enjoyment of the said plot by fencing and constructing a toilet on the extension of the said plot. The defendants aver that the plaintiff is a mere licencee over the subject property which is public land held by the County Government of Kakamega in trust for the larger public. The defendants further aver that the 3rd defendant has the right to take over possession and use the subject property as it deems fit for the benefit of the larger public.
This court has considered the evidence and the submissions herein. PW1 the plaintiff testified that he was allocated plot 1A in 1960 and he developed it. He has been paying rent and rates for it. In 1973 he was given a permit to extend his business to plot 1B, PEx3. He then fenced the same. The defendant has without any colour of right, consent and or authority of the plaintiff entered into the said plot and thereby trespassed and is still trespassing thereon and has interfered with his peaceful enjoyment of the said plot by fencing and has started constructing a toilet on the extension of the said plot (PEx 5 are the photos). DW1, a County Surveyor produced the surveyor’s report DEx1 and the map DEx2. The defence admits that the plaintiff was allocated plot 1A in 1960. He was allocated the extension in 1973 plot 1B with conditions that he was to develop the same within 12 months which he failed to do and the County repossessed the same. I have read the said extension permit and it is true that one of the conditions is that the same be developed within 12 months. The plaintiff stated he only fenced the portion. I find that he cannot now claim the same. Whether or not he paid rent or rates is not the issue here, the question is whether or no he fulfilled the condition for the extention of his plot. The plaintiff apart from putting up a fence never developed the said plot 1B, if he did then he never produced any evidence to establish the same. For these reasons I find that the plaintiff has failed to prove his case on a balance of probabilities and I dismiss it with costs.
It is so ordered.
DELIVERED, DATED AND SIGNED THIS 16THDAY OF APRIL 2020.
N.A. MATHEKA
JUDGE