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ELCPartially AllowedApplication dated 31st October 2012· [2013] KEELC 68 (KLR)

Mkalindi v Kaseme & 2 others (Environment and Land Case 168 of 2012) [2013] KEELC 68 (KLR)

Environment and Land Court
27 September 2013
OAO. A. Angote
3,840 words in judgment
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The bottom line

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Kenya's Environment and Land Court halted construction on land in Tana River because the county council had no legal power to allocate it in the first place.

What this practically means

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Executive summary

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This is a ruling on the Plaintiff's application dated 31st October 2012 under Order 40 of the Civil Procedure Rules seeking temporary injunctions restraining the 1st Defendant from trespassing on and developing a portion of unsurveyed land next to the Redeemed Church Hola, restraining the 2nd Defendant from constructing additional structures, and restraining the 3rd Defendant (the County Council of Tana River) from allocating the land to third parties pending the hearing of the suit. The Plaintiff claimed as heir and member of the larger Duko family, asserting ancestral occupation and beneficial ownership of community land. The Defendants denied the claim: the 1st and 2nd Defendants asserted lawful allotments (the 2nd having purchased from a prior allottee), while the 3rd Defendant deponed that the land was Government land under the repealed Government Lands Act and that Hola town had been planned in 1967, 1976 and 2006. The court, having earlier confirmed the Plaintiff's locus standi, analysed the distinction between Trust land and Government land under the repealed Constitution and held that a County Council had no power to allocate unalienated Government land, making the purported allocation prima facie null and void ab initio. In the absence of full council minutes authorising the allocation, the letter of allotment had no prima facie evidentiary value, and the parcel was not in fact surveyed. Finding a prima facie case with chances of success and likely irreparable injury, the court allowed the application as drawn on 27th September 2013, with no separate costs order recorded.

Key legal issues

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01

Locus standi of a family member in respect of community/ancestral land

Holding

Members of a community, collectively or individually, may contest dealings in community or trust land; the Plaintiff had locus standi

Reasoning

The court relied on its earlier Ruling of 13th December 2012, holding that members of a community have rights over community and trust land and may contest dealings therein individually or collectively. The court found as a fact that the Plaintiff could sue on his own behalf and as a member of the Duko family.

p. 3
02

Status of the suit property - Trust land or Government land

Holding

The property was prima facie Trust land, not Government land as the Defendants deponed

Reasoning

The court set out the distinction between Trust land under sections 114-118 of the repealed Constitution and Government land under the Government Lands Act. It noted that County Councils had no role in allocating unalienated Government land, and that the Defendants' own deposition that the land was Government land undermined the legality of the 3rd Defendant's allocation, rendering it prima facie null and void ab initio.

p. 5
03

Legality of the allocation by the 3rd Defendant

Holding

The allocation was prima facie null and void ab initio for want of full council minutes and because a council cannot allocate Government land

Reasoning

Trust land allocations require resolutions of the full council meeting under the Local Government Act, with compensation for affected customary rights-holders. The 1st Defendant did not annex the full council minutes; the 'agendum (G)' resolution of the Education and Social Service Committee was unexplained. The letter of allotment was therefore of no prima facie evidentiary value.

p. 6
04

Whether the criteria for a temporary injunction were met

Holding

The Plaintiff established a prima facie case with chances of success and likely irreparable injury; the application was allowed

Reasoning

Applying the Order 40 principles, the court found a prima facie case arising from the defective allocation, and held that construction of the tourism and environmental conservation project would change the use of the land to the Plaintiff's detriment, constituting irreparable injury not compensable by damages, justifying injunctive relief pending trial.

p. 8

Legal principles established

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  • A County Council could not allocate unalienated Government land; allocation of Government land is the prerogative of the President or the Commissioner of Lands, so a purported council allocation is null and void ab initio
  • A letter of allotment issued by a local authority has no evidentiary value in the absence of minutes of the full council meeting authorising the allocation
  • A regional or part development plan is not an instrument for the allocation of land to individuals
  • Trust land belongs to the local tribes, groups, families and individuals for so long as it remains unadjudicated and unregistered
  • A parcel of land is only surveyed after approval of the survey plan by the Director of Survey, who allocates it a land reference number; PDP numbers do not denote surveyed parcels

Court orders

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  1. 1.The Plaintiff's Application dated 31st October 2012 is allowed as drawn (temporary injunction restraining the Defendants pending hearing and determination of the suit)

Authorities

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Legislation

  • Civil Procedure RulesOrder 40
  • Constitution of Kenya (repealed)Sections 114, 115(2), 115(4), 116, 117(1), 117(2), 117(4), 118(1)
  • Trust Land Actnot specified
  • Land Adjudication Actnot specified
  • Local Government Act (repealed)not specified
  • Government Lands Act, Cap 280 (repealed)Sections 3, 9; Sections 21, 22, 25 and 26 of the Constitution of Kenya (Amendment) Act 1964
  • Physical Planning Act, 1996Section 16
  • Land Planning Act / Town Planning Act (repealed)not specified
  • Law of Succession Actletters of administration
  • Crown Lands Ordinance, 1915not specified
  • Kenya Independence Order in Council, 1963Schedule 2, sections 204 and 205
Jurisdiction invoked
Order 40 of the Civil Procedure Rules (injunctive relief); land dispute under the repealed Constitution (sections 114-118) and Trust Land Act regime

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, "Mkalindi v Kaseme & 2 others (Environment and Land Case 168 of 2012) [2013] KEELC 68 (KLR)", Case Analysis (2013). Application dated 31st October 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/68/eng@2013-09-27

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