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ELCDismissedNotice of Motion dated 6th April 2018 (suit at Malindi)· [2019] KEELC 2513 (KLR)

Joha Mkuzi Kakono v Mkuzi Saha Mkauma [2019] KEELC 2513 (KLR)

Environment and Land Court
11 July 2019
JOJ.O. Olola
1,043 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to stop a landowner from using disputed land because land adjudication decisions, once confirmed by the Minister, are final.

What this practically means

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Executive summary

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The Plaintiff, Joha Mkuzi Kakono, moved the court by Notice of Motion dated 6th April 2018 seeking an interlocutory injunction to restrain the Defendant, Mkuzi Saha Mkauma, from cultivating, alienating, sub-dividing, interfering with, leasing or dealing with parcel Kaliangombe/Jimba/580 pending the hearing of the suit. The Plaintiff claimed to be the registered owner and alleged that the Defendant had encroached upon and cultivated the land without authority or consent. The Defendant denied the Plaintiff's ownership, asserting that the land belonged to his late father who bequeathed it to him in 1962, that the Plaintiff's father had merely been allowed temporary shelter on a portion later carved out as a separate Plot No. 581 during adjudication, and that the suit property had been the subject of adjudication proceedings since 2000 in which the Rabai District Land Adjudication Arbitration Board ruled against the Plaintiff on 17th January 2003, ordering that the land remain registered in the Defendant's name. The Plaintiff appealed to the Minister. Applying the Giella v Cassman Brown principles and the definition of a prima facie case in Mrao Ltd v First American Bank of Kenya Ltd, the court found nothing demonstrating the Plaintiff's ownership of the suit property. The court also took judicial notice that under Section 29(1) of the Land Adjudication Act (Cap 284) the Minister's decision on appeal is final and the court could not interfere with it absent allegations of procedural violation or denial of natural justice. The application was dismissed with costs to the Defendant on 11th July 2019.

Key legal issues

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Whether the Plaintiff established a prima facie case with a probability of success for purposes of an interlocutory injunction

Holding

He did not; the adjudication proceedings show the Board ruled against the Plaintiff and declared the Defendant the owner of the suit parcel

Reasoning

The court applied the Giella v Cassman Brown principles. The Plaintiff, claiming to be the registered owner, alleged encroachment and cultivation by the Defendant. However, the annexed adjudication proceedings showed that on 17th January 2003 the Arbitration Board ruled against the Plaintiff and that the land remains registered in the Defendant's name. Nothing before the court demonstrated the Plaintiff's ownership, and the Minister's appellate decision under Section 29(1) of the Land Adjudication Act is final, which the court could not disturb absent allegations of procedural violation or breach of natural justice.

p. 2

Legal principles established

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  • Under Section 29(1) of the Land Adjudication Act (Cap 284), the Minister's decision on appeal is final and the Court may not interfere with it absent allegations of procedural violation or denial of natural justice

Court orders

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  1. 1.The application dated 6th April 2018 is dismissed with costs to the Defendant

Authorities

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Legislation

  • Land Adjudication ActSection 29(1)

Cases cited (2)

  • Giella –vs- Cassman Brown & Company Ltd
    (1973) EA 358
  • Mrao Ltd –vs- First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes

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, "Joha Mkuzi Kakono v Mkuzi Saha Mkauma [2019] KEELC 2513 (KLR)", Case Analysis (2019). Notice of Motion dated 6th April 2018 (suit at Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2513/eng@2019-07-11

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