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ELCPartially AllowedPetition dated 27th February 2017 (Kericho ELC)· [2018] KEELC 4885 (KLR)

Joseph Langat & 2 others v Kericho County Government, & 3 others [2018] KEELC 4885 (KLR)

Environment and Land Court
12 July 2018
JOJ.M Onyango
2,753 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kericho court stopped evictions of a community that had occupied land for over 50 years, ruling that long occupation counts as a protectable interest.

What this practically means

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Executive summary

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The Petitioners, members of Koita Welfare Self-Help Group (343 members), filed a petition dated 27th February 2017 seeking a permanent injunction against the 1st Respondent (formerly the defunct Municipal Council of Kericho) restraining trespass, demarcation, sub-division, leasing and sale of un-surveyed land known as L.R No. 5468/R, together with declarations of ownership as community land, demolition orders and directions for investigation. Simultaneously they sought interlocutory injunctive relief. The Respondents opposed through the Replying Affidavit of John Mibei, contending that the land earmarked for an Agricultural Show ground was public land, L.R No. 631, not L.R No. 5468, and that the application was defective, brought in bad faith and an abuse of process. The court framed the sole issue as whether the Petitioners were entitled to injunctive orders. Applying the Giella v Cassman Brown test, the court found that the Petitioners' long occupation, evidenced by developments including a school, houses, churches and shops and a 1987 Ministry of Lands letter, established an interest in the land and a prima facie case with a probability of success, guided by Luka Kitumbi. The disputed boundary question between L.R 631 and 5468 was left for trial. The court invoked the doctrine of lis pendens to preserve the subject matter, found substantial loss occasioned by the Respondent's failure to follow sections 5(4) and 6 of the Community Land Act, 2016, and ordered maintenance of the status quo, compliance with Order 11 within 30 days, and costs in the cause. The judgment is interlocutory only; ownership remains for trial.

Key legal issues

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01

Prima facie case for interlocutory injunction

Holding

The Petitioners established a prima facie case with a probability of success by demonstrating long occupation and development of the suit land and a violation of that interest

Reasoning

The court applied the Giella v Cassman Brown test. Affidavit evidence including a 1987 Ministry of Lands letter showed occupation for over 50 years with schools, houses, churches and shops. Following Luka Kitumbi, long occupation confers a practical indicia of ownership. The disputed question of whether the show ground fell within L.R 631 or 5468 was left for trial.

p. 3
02

Substantial loss and Community Land Act protections

Holding

The Petitioners would suffer substantial loss since the 1st Respondent evicted them without following the procedure in section 6 of the Community Land Act, 2016 and without compensation or alternative settlement

Reasoning

Section 5(4) of the Community Land Act, 2016 protects interests in community land from compulsory acquisition except by law, for a public purpose and with just compensation. The Respondent only issued notices ordering the Petitioners to move for a show ground, without offers of alternative settlement, occasioning them substantial loss and damage.

p. 4
03

Preservation of the subject matter under lis pendens

Holding

The subject matter had to be preserved pending determination of ownership in accordance with the doctrine of lis pendens

Reasoning

Relying on Mawji v US International University and Naftali Ruthi Kinyua, the court held that the doctrine of lis pendens, recognised as substantive law of general application, prohibits parties from giving others rights to property in dispute pending litigation. Status quo orders preserving occupation were therefore warranted.

p. 4

Legal principles established

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  • A party occupying land for many years, even without formal title, establishes an interest in it capable of protection by interlocutory injunction
  • The doctrine of lis pendens applies pending litigation over land, prohibiting parties from conferring rights over the disputed property
  • Interests in community land cannot be compulsorily acquired except in accordance with the law, for a public purpose and upon payment of just compensation

Court orders

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  1. 1.That the status quo be maintained pending the hearing and determination of the suit, with the Petitioners continuing to use or occupy the properties they have been occupying but no party selling, transferring or parting with possession of the suit land
  2. 2.That the parties comply with Order 11 of the Civil Procedure Act within 30 days to expedite the hearing and disposal of the suit
  3. 3.That the costs of the application shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(3)
  • Community Land ActSections 5(4) and 6
  • Land Registration ActSection 107
  • Trust Land Act Cap 288(as discussed in Luka Kitumbi)
  • Civil Procedure ActOrder 11
  • Transfer of Property Act (TPA)Section 52 (as discussed in Mawji)
  • Registration of Titles Act (RTA)Section 23 (as discussed in Mawji)

Cases cited (8)

  • Giella V Cassman Brown & Company Ltd
    1973 EA 358
  • Amir Suleiman V Amboseli Resort Limited
    (2004) eKLR
  • Films Rover International
    1986 3 All ER 772
  • Mrao V First American Bank of Kenya Limited
    (2003) eKLR
  • Mbuthia Vs Jimba Credit Corporation Ltd
    (1988) KLR 1
  • Luka Kitumbi and 8 others V Commissioner of Mines and Another
    (2010) eKLR
  • Mawji vs US International University & another
    [1976] KLR 185
  • Naftali Ruthi Kinyua V Patrick Thuita Gachure and another
    (2015) eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (Environment and Land Court jurisdiction; Community Land Act, 2016)

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, "Joseph Langat & 2 others v Kericho County Government, & 3 others [2018] KEELC 4885 (KLR)", Case Analysis (2018). Petition dated 27th February 2017 (Kericho ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4885/eng@2018-07-12

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