Hassan Maalim Abdalla v County Government of Marsabit & another [2018] KEELC 3775 (KLR)
The bottom line
#A Kenyan court confirmed that families can protect unregistered community land in court, and blocked Marsabit County from alienating the disputed land.
What this practically means
#Executive summary
#Key legal issues
#Whether a representative suit on behalf of families requires leave under Order 1 rule 8(1) of the Civil Procedure Rules
The preliminary objection on this ground fails; the families had given the plaintiff written authority and the provisions of Order 1 rule 8 were not violated
The plaint pleaded that the plaintiff sued on behalf of his own family and three other families. The family members had availed an 'Authority to sign' dated 6.1.2017 authorising the plaintiff to sign pleadings on their behalf. Given this authority, the court found no violation of Order 1 rule 8, which permits proceedings to be commenced by one or more persons representing all where numerous persons share the same interest.
Whether failure to identify a registered or registrable suit property defeats the suit
The objection fails; although the plaint does not name an actual parcel, it describes approximately 300 hectares in Yaballo sub-location, and unregistered community land is recognised under Article 63 of the Constitution
The land is unregistered but identifiable and located in Yaballo sub-location of Nana location. Article 63 recognises community land including ancestral lands and lands traditionally occupied by communities. The court held that non-registration does not bar claims of rights and interests, noting that the 2nd defendant also claims the same land and knows where it is.
Whether the plaintiff was required to exhaust the dispute resolution mechanisms in sections 39–42 of the Community Land Act before approaching the court
The objection fails; the Community Land Act does not oust the court's jurisdiction under Article 165 of the Constitution
While some proceedings showed an attempt to resolve the dispute in a joint consultative meeting, the nature and extent of that forum was unknown to the court. In any event, the statutory dispute resolution mechanisms in the Community Land Act do not remove the jurisdiction conferred on the court by Article 165 of the Constitution.
Whether an interlocutory injunction should issue restraining the defendants from interfering with the suit land
Partially: an injunction issued only against the 1st defendant to restrain alienation, since the County Government's input is crucial; the injunction against the 2nd defendant was refused
Neither party had conclusive ownership documents; whether the land falls under Article 63 (community land) or Article 64 (private land) cannot be determined at the interlocutory stage. The extent of the land is also unknown, making enforcement of an injunction against the 2nd defendant impractical. However, the 1st defendant was served but did not respond, and orders preventing alienation were necessary pending determination.
Legal principles established
#- A preliminary objection must be a pure point of law and cannot be blurred with factual details requiring proof through evidence
- The Community Land Act does not oust the jurisdiction of the court conferred by Article 165 of the Constitution
- In dealing with an application for an injunction, the court does not decide issues of fact but weighs the relative strength of each side's proposition
- Unregistered land does not preclude the assertion of rights and interests over it; community land under Article 63 need not be registered for claims to subsist
Court orders
#- 1.A temporary order of injunction restraining the 1st defendant/respondent from alienating the suit land situated in Yaballa sub-location, Nana Location of Moyale Sub-county
- 2.Parties directed pursuant to Order 46 rule 1 to explore Alternative Dispute Resolution Mechanism in terms agreeable to all the parties
- 3.The order to be served upon the 1st defendant within 14 days
- 4.The preliminary objection dated 27.3.2017 dismissed with costs to the plaintiff
- Jurisdiction invoked
- Article 165 of the Constitution (jurisdiction of the High Court/ELC over land disputes); suit founded on Articles 63 and 64 of the Constitution and the Community Land Act
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.
Cite this brief
#Cite this brief
Caselaw, "Hassan Maalim Abdalla v County Government of Marsabit & another [2018] KEELC 3775 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3775/eng@2018-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.