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ELCDismissedELC Case No. 249 of 2013· [2018] KEELC 1544 (KLR)

Peter Tomito & 2 others v Korinko N. Nkoliai & 12 others [2018] KEELC 1544 (KLR)

Environment and Land Court
5 October 2018
JMJ. M. Mutungi
8,594 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~34 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The three plaintiffs, members of Olomismis Group Ranch, sued the group's officials, the Group Ranch, the District Land Registrar Transmara and the National Land Commission as a representative suit, challenging the survey, subdivision and allocation of LR No. Transmara/Olomismis/1 (9,640 hectares). They alleged allocations to non-members, unequal acreages contrary to an agreed 60 acres per member, and sought permanent and mandatory injunctions, declarations of nullity, fresh adjudication and survey, and an enquiry by the National Land Commission. The defendants maintained the dissolution consent was lawfully obtained in 1992/1993, the subdivision was transparent, and variances arose from sales to purchasers, family subdivisions, roads and utility plots. The court framed four issues: locus standi, exhaustion of internal dispute resolution and jurisdiction, disclosure of a cause of action, and proof on a balance of probabilities. It found the authority schedule unauthenticated - containing dead persons, persons denying authority, and next of kin without grants of representation - but held the plaintiffs could sue in their own right. It held the Group Ranch Constitution's dispute mechanism had to be exhausted, ousting the court's jurisdiction to review the officials' exercise of mandate absent blatant abuse. On the merits, the plaintiffs' generalized allegations were unsupported; their own allocations were explained, and no genuine member was shown to have been left out. The suit was dismissed, the subdivision of 1,699 parcels upheld, the area list and RIM endorsed for title processing, and each party ordered to bear its own costs.

Key legal issues

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01

Whether the plaintiffs had locus standi to institute a representative suit

Holding

The authority list was not authentic; the plaintiffs lacked capacity to represent the members but could sue in their own right as members with specific claims

Reasoning

The schedule included persons dead before filing, persons who denied giving authority, and next of kin who lacked capacity to represent deceased estates without grants of representation. No evidence connected signatories to membership of the Group Ranch. The court found the list unauthenticated. However, the three plaintiffs were themselves members with specific claims in their witness statements and could prosecute the suit in their own right.

p. 6
02

Whether the court had jurisdiction given the dispute resolution mechanism in the Group Ranch Constitution

Holding

The court lacks jurisdiction to interfere where the group representatives executed their mandate in accordance with the Constitution and the internal dispute resolution mechanism was not exhausted

Reasoning

The Group Ranch Constitution (reproducing Schedule II of the Land (Group Representatives) Act) allowed one fifth of members to requisition a general meeting. The plaintiffs' complaint was essentially that the officials were conducting the group's affairs oppressively; they were obliged to invoke that mechanism first. Having not done so over the 20-year subdivision process, and not demonstrating utter impunity or blatant abuse of mandate, the plaintiffs could not invoke the court's jurisdiction.

p. 8
03

Whether the subdivision and allocation of the Group Ranch land was irregular and unlawful

Holding

The subdivision creating 1,699 parcels was validly and procedurally carried out; variances in acreage were credibly explained by sales to purchasers, family subdivisions and roads/utility plots

Reasoning

The chairman explained the extra plots arose from purchasers from members, the Ilkambongi age group, acceptees, commercial plots and impracticality of consolidating 60 acres in one piece. The plaintiffs' own entitlements were shown to have been met, the 3rd plaintiff having purchased additional land. No specific witness proved being a member allocated no land, and the defendants' assertion was not rebutted.

p. 9
04

Whether the consent for 380 subdivisions limited the number of resultant parcels

Holding

The consent was fundamentally to enable subdivision for settlement of members; the group representatives were empowered to determine the number of subdivisions, so no fresh consent was needed

Reasoning

The modalities of subdivision and allottees were not fixed until 2009. The consent of 1993 was to facilitate settlement of members; the scope altered materially with the Ilkambongi group, acceptees and commercial plots. The land board consent was deemed amended to reflect the subdivisions in the mutation registered on 13th May 2013.

p. 9

Legal principles established

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  • Where a constitution of an incorporated group provides a mechanism for resolving disputes about the conduct of its affairs, that procedure must be exhausted before court jurisdiction is invoked
  • Where there is a clear procedure for redress of a grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
  • Only a duly appointed legal personal representative can represent a deceased person's estate for purposes of giving authority to institute a suit

Court orders

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  1. 1.The suit is dismissed
  2. 2.The subdivisions carried out in respect of LR No. Trans Mara/Olomismis/1 creating 1699 subtitles are held to have been validly and procedurally carried out
  3. 3.The Area list furnished to the Land Registrar together with the mutation form registered on 13th May 2013 should be utilized to process the individual title deeds for the persons whose names appear in the area list
  4. 4.The Registry Index Map(s) (RIM) furnished together with the mutation form should be used to identify and locate the parcels of land
  5. 5.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Land (Group Representatives) ActCap 287, Laws of Kenya
  • Land (Group Representatives) ActSection 10
  • Land (Group Representatives) ActSection 8(2)
  • Land (Group Representatives) ActSchedule II
  • Law of Succession ActCap 160, Section 82(a)

Cases cited (2)

  • The Speaker of the National Assembly -vs- James Njenga Karume
    [1992] eKLR
  • Patel & Others -vs- Dhanji & Others
    [1975] EA 301
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court); suit instituted under the Land (Group Representatives) Act, Cap 287, Laws of Kenya

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, "Peter Tomito & 2 others v Korinko N. Nkoliai & 12 others [2018] KEELC 1544 (KLR)", Case Analysis (2018). ELC Case No. 249 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1544/eng@2018-10-05

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