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ELCPartially AllowedELC Case No. 168 of 2012 (consolidated with Petition No. 18 of 2012)· [2016] KEELC 1015 (KLR)

Bahola Mkalindi Rhigho & 9 others v Michael Seth Kaseme & 3 others [2016] KEELC 1015 (KLR)

Environment and Land Court
15 April 2016
OAO. A. Angote
5,229 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled land allocations made by a county council in Hola, ruling the land still belonged to the family that originally occupied it.

What this practically means

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Executive summary

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Two matters - ELC Case No. 168 of 2012 (a plaint by Mkalindi Righo Duko claiming approximately 15 acres at Hola Town, Tana River County, as ancestral land inherited from the Duko family) and Petition No. 18 of 2012 (brought by members of the same family asserting Trust land rights under the former Constitution and Articles 40, 60 and 63 of the 2010 Constitution) - were consolidated and determined on viva voce evidence. The Plaintiff and Petitioners relied on colonial-era letters, sketch maps and payment vouchers showing that Paulo Bahola Duko was paid rent by the colonial government for the pump-house land, evidencing continued family occupation of unadjudicated Trust land. The Defendants, who held allotment letters issued by the Town Clerk of the defunct County Council, contended the land became Government land upon the 1987 town plan (revised in 2006). The court held that preparation of a physical development plan does not amount to setting apart Trust land under Section 118 of the repealed Constitution or sections 7 and 8 of the Trust Land Act; no setting-apart procedure, council resolution or compensation was proved, and Council officials gave no evidence. The allocations to the 1st and 2nd Defendants were declared illegal, null and void. The court declared the land belongs to the Petitioners, the Plaintiff and their family, quashed the two allocations by certiorari, ordered vacant possession and eviction of the 1st and 3rd Respondents, and awarded costs against the Respondents and Defendants. It declined, however, to declare the Plaintiff individually the owner, since the wider family and the Uta clan had interests in the land.

Key legal issues

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01

Whether the suit property was Government land or Trust land

Holding

The suit property was Trust land; the Defendants failed to prove it was ever set apart under Section 118 of the repealed Constitution or sections 7 and 8 of the Trust Land Act.

Reasoning

The court set out the legal regime for Government and Trust land under the repealed Constitution and the Trust Land Act. Setting apart required Gazette notice, specification of boundaries and purposes, and prompt payment of full compensation. Apart from the 1987 and 2006 physical development plans, the Defendants produced no evidence that the statutory setting-apart procedure was followed, so the designation of Hola Town as Government land was not established.

p. 8
02

Whether the allocation of the suit property by the County Council to the 1st and 2nd Defendants was lawful

Holding

The allocation was illegal, null and void, as no council minutes or evidence of the statutory process or compensation were produced, and the Council officials did not testify.

Reasoning

Even on the Council's own power under section 13 of the Trust Land Act to set apart Trust land, a full council resolution, Gazette publication and compensation to affected parties were required. The Defendants did not produce the full council minutes; the letter of allotment was of no prima facie evidential value without them; and the Plaintiff's family was never compensated for the land where the pump house stands.

p. 8
03

Whether the Plaintiff and Petitioners proved ownership of the suit property

Holding

They proved their cases on a balance of probabilities as against the allocations, but the court declined to vest sole ownership in the Plaintiff, declaring the land belongs to the Petitioners, the Plaintiff and their family.

Reasoning

Historical letters and payment vouchers showed the colonial government rented the pump-house land from Paulo Bahola Duko, corroborating occupation. However, because the land was family/clan property, the court tempered the relief, declaring ownership in favour of the family and community rather than the Plaintiff individually.

p. 8

Legal principles established

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  • The preparation or revision of a physical development plan does not in itself constitute the setting apart of Trust land.
  • A letter of allotment issued by a Town Clerk rather than the Commissioner of Lands demonstrates allocation by the Council, not the Government, in respect of unalienated Government land.
  • A letter of allotment has no prima facie evidential value in the absence of the minutes of the full council meeting authorising the allocation.
  • For as long as Trust land remains unadjudicated and unregistered, it belongs to the local tribes, groups, families and individuals of the area.

Court orders

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  1. 1.A declaration that the Petitioners' and the Plaintiff's rights to property guaranteed in Article 40, 50 & 63 of the Constitution of Kenya 2010 and Section 75 of the former Constitution were infringed by the 4th Respondent's action in allocating part of the Petitioners' land at Hola town to the 1st and 2nd Respondents and in approving the development plans thereon
  2. 2.A declaration that all the parcels of land measuring 15 acres or thereabouts situated at Hola town in Tana River County near Hola water supply site and Laza Primary School belong to the Petitioners and the Plaintiff and their family to the exclusion of the 1st, 2nd and 3rd Respondents
  3. 3.A prerogative Order of Certiorari quashing the allocation by the 4th Respondent to the 1st Respondent of the portion of land measuring 0.72 hectares or thereabouts within the 15 acres parcel
  4. 4.A prerogative order of Certiorari quashing the allocation by the 4th Respondent to the 2nd Respondent of the portion of land measuring 150 feet by 100 feet or thereabouts within the 15 acres parcel
  5. 5.An Order of vacant possession of the said portion of land and the eviction therefrom of the 1st and 3rd Respondents
  6. 6.The 1st, 2nd, 3rd and 4th Respondents to pay the costs of the Petition, and the 1st, 2nd and 3rd Defendants to pay the costs of the suit in ELC Case No. 168 of 2012

Authorities

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Legislation

  • Constitution of Kenya (repealed)Sections 114(1), 115, 115(2), 115(4), 116, 117(1), 117(2), 117(4), 118(1), 75
  • Constitution of Kenya, 2010Articles 40, 50, 60, 63
  • Trust Land ActSections 7, 8, 13, 13(3)
  • Government Lands ActSection 3
  • Physical Planning Act, 1996Section 16
  • Local Government Act (repealed)null
  • Town Planning Act (repealed)null
  • Land Adjudication Actnull
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land claims and constitutional petitions concerning land (Article 162(2) framework; declarations sought under Articles 40, 50, 63 and former Section 75)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bahola Mkalindi Rhigho & 9 others v Michael Seth Kaseme & 3 others [2016] KEELC 1015 (KLR)", Case Analysis (2016). ELC Case No. 168 of 2012 (consolidated with Petition No. 18 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1015/eng@2016-04-15

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