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Court of AppealDismissedFirst Appeal from Chuka ELC (Petition dated 20th July 2010)· [2024] KECA 1385 (KLR)

Angelo Mucee Kithira & 2 others v The Honourable Attorney General & 5 others

Court of Appeal of Kenya
11 October 2024
3,707 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that once trust land is formally 'set apart', all customary claims over it die, so families claiming ancestral rights lost.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nyeri, under Section 16 of the Environment and Land Court Act, 2011, from the judgment of the Environment and Land Court at Chuka (P. M. Njoroge, J.) dismissing a petition by the three appellants challenging the setting apart of Land Parcel No. 1249 Gatunga Adjudication Section, allegedly reserved for Gatue Secondary School. The petitioners had sought declarations that the setting apart breached the former Constitution and the Trust Land Act (now repealed), a declaration of ownership, and a permanent injunction. The Court of Appeal, hearing the appeal by way of retrial, framed a single issue: whether the appellants had presented any evidence of wrongdoing by the respondents. The court held that the Land Adjudication Act, which exists to ascertain and record unrecorded rights in trust land, had no application to land already set apart, because setting apart under Section 117(2) of the former Constitution extinguishes all customary law rights, interests and benefits. Adopting its earlier decision in Flemish Investments Limited v Town Council of Mariakani, the court found no evidence that the appellants' families had initiated a setting-apart process before the declaration of the adjudication section, and concluded the critical date was the alleged 1990 setting apart. The appeal was dismissed in its entirety with no order as to costs. The judgment is one of the whole court, with no separate opinions.

Key legal issues

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01

Whether trust land subjected to the Land Consolidation Act and the Land Adjudication Act is different from setting apart of trust land

Holding

Yes; the two are distinct processes. The Land Adjudication Act exists to ascertain and record unrecorded rights in trust land, but once land has been set apart, rights are extinguished and there is nothing to adjudicate.

Reasoning

The court examined Sections 115, 116 and 117 of the former Constitution and Section 13 of the repealed Trust Land Act. Section 116(2) contemplated conversion of trust land through the Land Consolidation Act and Land Adjudication Act, whereas Section 117 governed setting apart, whose effect under Section 117(2) was to extinguish customary rights. The two statutory regimes operate on different premises and are not inconsistent.

p. 7
02

Whether the appellants' customary rights over the suit property survived and could be adjudicated after the alleged setting apart

Holding

No. By operation of Section 117(2) of the former Constitution, setting apart extinguished all customary rights, interests or benefits, so no rights remained to be ascertained and recorded under the Land Adjudication Act.

Reasoning

The court, relying on its earlier decision in Flemish Investments Limited v Town Council of Mariakani, held that once land is set apart for public purposes, all rights over it are immediately extinguished by operation of the Constitution, before any allotment letters or grants are issued. No allotment letters or grants were shown to have been issued to the appellants.

p. 7
03

Whether the trial court erred in failing to find that Section 13(2) of the Trust Land Act was not complied with

Holding

The appeal fails; there was no evidence that the appellants' families had initiated a setting-apart process with the County Council before the declaration of the Gatunga Adjudication Section, and the appellants failed to prove wrongdoing.

Reasoning

On a first appeal by way of retrial, the court re-evaluated the evidence and found no proof that a setting-apart process had been initiated by the appellants' families with the County Council of Tharaka before 2005. The critical date was the alleged setting apart in 1990, before the adjudication section was declared, so the Land Adjudication Act had no application.

p. 7

Legal principles established

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  • Once trust land has been set apart under Section 117(2) of the former Constitution, all customary law rights, interests or benefits over it are extinguished, and such land cannot subsequently be subjected to adjudication under the Land Adjudication Act.
  • Subjection of trust land to the Land Consolidation Act and the Land Adjudication Act is different from setting apart of trust land; the two regimes operate on land with unascertained rights and land from which rights have been extinguished respectively.

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.No order as to costs
On appeal from
Environment and Land Court, Chuka
Petition dated 20th July 2010
Jurisdiction invoked
Section 16 of the Environment and Land Court Act, 2011 (first appeal from the ELC)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Angelo Mucee Kithira & 2 others v The Honourable Attorney General & 5 others", Case Analysis (2024). First Appeal from Chuka ELC (Petition dated 20th July 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1385/eng@2024-10-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.