[2018] KEELC 3488 (KLR)
The court found that the applicant failed to demonstrate any legal right or ownership over the disputed land, as evidence showed the land was registered in the name of the Settlement Fund Trustees and not the applicant. Without such a right, the applicant was not entitled to the interlocutory order sought for...
Source-derived case information.
- Citation
- [2018] KEELC 3488 (KLR)
- Parties
- Applicant: Zedekiah Evans Nyamongo Achira; Respondent: National Land Commission; Respondent: Settlement Fund Trustee; Respondent: Board of Management Saiwa Secondary School; Respondent: Sammy Kurgat; Respondent: Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Petition 6 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Valuation Access
- Outcome
- application dismissed
- Judges
- FM Njoroge
- Legal Topics
- Public Land Ownership, Interlocutory Applications, Valuation of Land, Trespass and Damage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zedekiah Evans Nyamongo Achira
Applicant
National Land Commission
Respondent
Settlement Fund Trustee
Respondent
Board of Management Saiwa Secondary School
Respondent
Sammy Kurgat
Respondent
Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Valuation Access
Legal Issues
- 1 Whether the applicant is entitled to an order allowing a valuer to access the disputed land for assessment purposes.
- 2 Whether the applicant has demonstrated any legal right or ownership over the suit land to justify the application.
Ratio Decidendi
The court found that the applicant failed to demonstrate any legal right or ownership over the disputed land, as evidence showed the land was registered in the name of the Settlement Fund Trustees and not the applicant. Without such a right, the applicant was not entitled to the interlocutory order sought for valuation access. The absence of a demonstrated proprietary interest was sufficient to dismiss the application at this stage, leaving the substantive issues for determination at the hearing of the main petition.
Court Disposition
application dismissed
Orders
- The application dated 5/2/2018 is dismissed.
- The main petition to be prepared and listed for hearing on its merits.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
PETITION NO. 6 OF 2017
IN THE MATTER OF CONTRAVENTION OF ARTICLE 40 (1) (2) (A) 3(B) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF ARTICLES 22 (1), 23 (1) AND 64 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF DEPRIVATION OF LAND MEASUIRNG 1 HA (2. 5 ACRES)
BETWEEN
ZEDEKIAH EVANS NYAMONGO ACHIRA.......................PETITIONER
VERSUS
NATIONAL LAND COMMISSION ...............................1ST DEFENDANT
SETTLEMENT FUND TRUSTEE..................................2ND DEFENDANT
BOARD OF MANAGEMENT
SAIWA SECONDARY SCHOOL....................................3RD DEFENDANT
SAMMY KURGAT............................................................4TH DEFENDANT
ATTORNEY GENERAL..................................................5TH DEFENDANT
R U L I N G
1. The application dated 5/2/2018 seeks an order that a Valuer be allowed to access the disputed piece of land for purposes of assessing the value of the land, the various types of trees and structures built within the land and any other damage as to the bringing down of those trees and structures.
2. The application is supported by the affidavit of the petitioner sworn on 5/2/2018. The said affidavit states that he had to pay for the trees on the land and that he had planted napier grass and more trees on the land. The petitioner avers that the 3rd respondent’s agents invaded the land and harvested the trees without any colour of right and they also caused other damage upon the land. It is alleged that the respondents are now covering up their tracks by burning the remnants of the tree stumps.
3. The application is opposed. The 2nd, 3rd, 4th and 5th respondents filed two replying affidavit of Oluoch A.M. Eric and Sammy Kurgat both dated 8/2/2018. In those affidavits it is averred that the suit land is public land registered in the name of the Settlement Fund Trustees which was allocated to Saiwa Secondary School and on which school infrastructure has been developed. The respondents term the plaintiff a squatter who did not have any legal right or claim to the suit land. They say he has not demonstrated that he bought the said land and therefore the request for a Valuer to enter the land is not justified.
4. I find that sufficient evidence has been adduced that the said Plot No. 288 is registered in the name of the Settlement Fund Trustees and not the petitioner. The prayer in the application dated 5/2/2018 is not merited on this ground alone. I therefore dismiss the application dated 5/2/2018 and order that the main petition be prepared for hearing and be listed for hearing on its merits.
Dated, signed and delivered at Kitale on this 20th day of April, 2018.
MWANGI NJOROGE
JUDGE
20/4/2018
Coram:
Before - Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Barongo for the Applicant
Ms. Munialo for 2nd -5th Respondent
Ms. Munialo for Njuguna for 1st Respondent
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
20/4/2018