Automated Summary
Key Facts
The case centers on a land ownership dispute between Hezekiah Macharia Wanyoike and Cecilia Wanjiru Wamaitha (appellants) and Kenya Medical Research Institute (KEMRI) and Jowa (KINS) Limited (respondents). The appellants claimed ownership of Plots T/MM/115/1 and T/MM/115 in Taveta using Temporary Occupation Licenses (TOLs) issued by the Town Council of Taveta. The respondents countered that these plots were part of a larger Plot No. Taita Taveta/Block 1/291, legally allocated to KEMRI via a Letter of Allotment in 1999. The Trial Court dismissed the appellants' case, finding their TOLs insufficient to establish ownership. The Appellants appealed, arguing procedural errors (e.g., no site visit, refusal to call additional witnesses) and legal misinterpretations (e.g., Kenya Gazette Notice No. 5039). The appellate court upheld the Trial Court's decision, citing that TOLs do not confer proprietary rights and the respondents' allotment documents (including a Beacon Certificate and survey plans) had legal precedence. The court found the appellants failed to provide evidence of their occupation or investment in the land and concluded the appeal lacked merit.
Issues
- a. Whether the issues raised by the 1st and 2nd Appellants from the filed Memorandum of Appeal dated 1st March, 2019 against the Judgement by the Trial Court delivered on 1st February, 2019 has any merit whatsoever and meets the threshold of an appeal.
- b. Whether the Parties herein are entitled to the relief sought from the filed Appeal herein; and
- c. Who will bear the Costs of the appeal.
Holdings
The appeal by the 1st and 2nd Appellants was dismissed for lack of merit. The Trial Magistrate's judgment in Civil Suit No. 22 of 2015 was upheld. Each party was ordered to bear their own costs of the appeal.
Remedies
- The judgment delivered by the Trial Magistrate Court in Civil Suit No. 22 of 2015 by the Honorable Senior Resident Magistrate Hon. Khapoya S. Benson is hereby upheld accordingly.
- Each party to bear their costs of the Appeal.
- The appeal by the 1st and 2nd Appellants through the Memorandum of Appeal dated 1st March, 2019 is hereby dismissed for lack of merit.
Legal Principles
- The court applied the principle of burden of proof under the Evidence Act, determining that the Appellants did not establish their ownership of the plots as required. The Respondents presented superior documentary evidence (Letter of Allotment) compared to the Appellants' Temporary Occupation License (TOL).
- The court cited established jurisprudence affirming that a Temporary Occupation License (TOL) cannot create or transfer legal title to property. This principle was central to invalidating the Appellants' claim based solely on TOLs.
- The court exercised its discretion under Section 27(1) of the Civil Procedure Act, concluding that the Appellants did not overturn the Trial Court's decision. Despite the usual 'costs follow the event' rule, the court ordered each party to bear their own appeal costs in the interest of justice.
Precedent Name
- Peter Versus Sunday Post Limited
- John Kariuki Maina –Versus- Town Clerk of the Municipal Council of Thika
- Pascal Obonyo Agwesa & 4 Others Versus Simon Juma Odiyo
- Waas Enterprises Limited –Versus- City Council of Nairobi and Anor
- Selle & Another - Versus- Associated Motor Boat Co. Limited & Others
- Oraro & Rachier Advocates Versus- Co-operative Bank of Kenya Limited
- Nelson Kazungi Chai and 9 Others -Versus- Pwani University college
Cited Statute
- Civil Procedure Act
- Registration of Title Act
- Land Act
- Evidence Act
- Constitution of Kenya
Judge Name
L.L. Naiyuni
Passage Text
- once an allotment Letter has been issued and the allottee meets the condition therein, the land in question is no longer available for allotment since a letter of allotment 'confers an absolute right of ownership or proprietorship unless it is challenged by the allocating authority or is acquired through fraud, mistake or misrepresentation or that the allocation was out rightly illegal or it was against public interest.'
- It is indeed settled law in Kenya that a Temporary Occupation License to occupy Government land is not sufficient to create or transfer title to the grantee or personal representative.
- a. That Judgement entered to the effect that the Appeal by the 1st and 2nd Appellants through the Memorandum of Appeal dated 1st March, 2019 be and is hereby dismissed for lack of merit.