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ELCDismissedMalindi HCCC No. 26 of 2010 (Plaint dated 18th March, 2010)· [2016] KEELC 1016 (KLR)

Raphael Mlewa Mkare & 515 others v Agricultural Development Corperation [2016] KEELC 1016 (KLR)

Environment and Land Court of Kenya
15 April 2016
5,005 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Malindi dismissed 516 people's ancestral land claim, ruling historical injustices must go to the National Land Commission, not self-help.

What this practically means

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Executive summary

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This was a first-instance land suit commenced by 516 Plaintiffs by a Plaint dated 18th March 2010, seeking only a permanent injunction restraining the Agricultural Development Corporation from interfering with land at Kisiwani which they claimed as ancestral land. The Defendant denied the claim, asserting the Plaintiffs were trespassers on land registered in the name of Lands Limited, its wholly owned subsidiary, which purchased the parcels from Kisima Farm Limited in 1976 for Kshs.1,309,900 with Land Control Board consent, on land surveyed in 1933. The Defendant's purported amended Defence and Counter-claim filed in 2013 without leave was excluded from the pleadings. Only three of the 516 Plaintiffs testified. The court found they gave no cogent evidence of their lineage, family trees, relationship to each other or individual acreages, and that the Plaintiffs did not live on the land but seasonally cultivated it and retreated home. The court held the suit property to be government land held by Lands Limited, and that no person may invade private or government land to remedy a historical land injustice; such grievances fall to the National Land Commission under Article 67(2)(e) of the Constitution. Following the Court of Appeal decision in Mombasa Technical & Training Institute, the court held the Plaintiffs were illegal squatters whose conduct could not be countenanced. The Plaint dated 18th March 2010 was dismissed with costs. The Defendant's counter-claim was not adjudicated owing to its exclusion.

Key legal issues

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01

Whether the Plaintiffs proved entitlement to the suit land as their ancestral land

Holding

The Plaintiffs failed to prove their claim; their witnesses gave no cogent evidence of their origins, lineage or individual claims, and the evidence showed they cultivated the land and retreated home rather than living on it.

Reasoning

Only three of 516 Plaintiffs testified. None explained their relationship to the others, their family trees, or the acreage each claimed. The court found the Plaintiffs did not reside on the land but seasonally cultivated it. Without proof of ancestral connection or possession, the claim failed on a balance of probabilities.

p. 6
02

Ownership of the suit property

Holding

The suit property belongs to Lands Limited, a wholly owned subsidiary of the Defendant, which purchased the parcels from Kisima Farm Limited in 1976 with Land Control Board consent; it is government land.

Reasoning

The Defendant proved an Indenture dated 7th June 1976 for Kshs.1,309,900, registered 3rd July 1976, with Kilifi Land Control Board consent granted 14th April 1976. The land was surveyed in 1933. Before the purchase it was private land, as even the Plaintiffs' witnesses admitted.

p. 7
03

Whether self-help invasion of land is a permissible remedy for historical land injustice

Holding

No. Historical land injustices must be pursued through the National Land Commission under Article 67(2)(e) of the Constitution, not by invading and appropriating land.

Reasoning

The court held that the Constitution mandates the National Land Commission to investigate historical land injustices and recommend redress. Pending legislation on the mechanism, individuals cannot investigate their own grievances and appropriate land, as that would lead to anarchy and a constitutional crisis.

p. 7
04

Whether the Defendant's amended Defence and Counter-claim could be considered

Holding

No. It was filed without leave of the court contrary to the Civil Procedure Rules and was excluded as a pleading.

Reasoning

The Defendant purported to file an amended statement of Defence and Counter-claim on 16th October 2013 without obtaining the court's leave, contrary to the Civil Procedure Rules. The court therefore declined to consider it, with the result that the Defendant's counter-claim was not adjudicated.

p. 1

Legal principles established

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  • No person has a right, under the Constitution or land statutes, to invade private or government land and appropriate it on the ground of remedying a historical land injustice; such grievances must be channelled to the National Land Commission.
  • A legitimate expectation for allocation of government land cannot arise out of occupation declared illegal by statute.

Court orders

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  1. 1.The Plaintiffs' Plaint dated 18th March, 2010 is dismissed
  2. 2.The Plaintiffs to pay the Defendant's costs of the suit
Jurisdiction invoked
Original civil jurisdiction over land claims (Plaint under Civil Procedure Rules; claims concerning ancestral/historical land injustices under the Constitution, 2010)

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, "Raphael Mlewa Mkare & 515 others v Agricultural Development Corperation [2016] KEELC 1016 (KLR)", Case Analysis (2016). Malindi HCCC No. 26 of 2010 (Plaint dated 18th March, 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1016/eng@2016-04-15

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