Ramadhan Mohamed Mwamatezo & another v Salim Ramadhan Mwamatezo & others [2015] KEELC 183 (KLR)
The bottom line
#A Mombasa court confirmed two brothers' ancestral land share but could not subdivide it until the deceased co-owners' estates go through succession.
What this practically means
#Executive summary
#Key legal issues
#Status of unadopted Land Disputes Tribunal decisions
The Msambweni LDT and Lands Appeal Committee proceedings were treated as evidence, not decrees, because there was no evidence they were adopted as court orders under section 8 of the LDT Act (repealed).
Section 8 of the (repealed) Land Disputes Tribunals Act required tribunal awards to be adopted as orders of the court before they take effect as decrees. Since the plaintiffs did not show that the tribunal award or the appellate committee decision was ever confirmed by a court, the court could not enforce them directly, but in the absence of contrary evidence from the defendants it relied on them as evidentiary material supporting the plaintiffs' claim to a share of the ancestral land.
Rights of defendants where registered co-owners are deceased without administration
The 2nd to 6th defendants, not being administrators of the deceased registered owners, had no right to interfere with the plaintiffs' possession.
The suit land was registered in the names of five proprietors in common in equal shares. Apart from the 1st defendant, all co-registered owners were deceased and no letters of administration had been taken out for their estates. The 2nd to 6th defendants had taken no legal steps to acquire any stake in the property and thus lacked standing to interfere with proprietorship, making it difficult for the court to order subdivision directly and supporting the injunction.
Plaintiffs' entitlement to a share of the suit land
The plaintiffs proved they are entitled to the half share belonging to the Mwamatezo family according to existing ancestral boundaries.
The 1st plaintiff testified without contradiction from any statement of defence or contrary evidence. His account of amalgamation during adjudication, omission of his father's name from the title, and the ancestral boundaries was accepted. The court was satisfied the plaintiffs had a share in the land, warranting the permanent injunction against the 2nd to 6th defendants while remitting the subdivision to a succession-based route.
Legal principles established
#- Decisions of Land Disputes Tribunals that were never adopted as orders of the Court are treated as evidence and not decrees
- Where property is held in common, on the death of co-owners their shares pass to the beneficiaries of their estates
Court orders
#- 1.Plaintiffs directed to cite the families of Omar Mohamad, Said Mwambwe, Bakari Mohamed Mpamba and Hasan Mohamed to take out letters of administration so administrators can secure titles and execute documents signing the land into the plaintiffs' name
- 2.In default, plaintiffs may apply to the High Court to be declared administrators of the estates of the said deceased registered owners and, on receipt of the grant, be at liberty to subdivide land parcel No. Kwale/Ukunda/703 to secure a title in their names
- 3.Permanent injunction restraining the 2nd to 6th defendants, their kin, servants or persons claiming through them from interfering with the plaintiffs' use and occupation of a portion of land comprised in Kwale/Ukunda/703
- 4.No award against the 7th defendant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land parcel Kwale/Ukunda/703
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Makupa Transit Shade Limited v County Director of Planning and Architecture, County Government Of Mombasa [2017] KEELC 1983 (KLR)[2017] KEELC 1983 (KLR)24 Jul 2017
Cite this brief
#Cite this brief
Caselaw, "Ramadhan Mohamed Mwamatezo & another v Salim Ramadhan Mwamatezo & others [2015] KEELC 183 (KLR)", Case Analysis (2015). Environment and Land Case No. 161 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/183/eng@2015-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.