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ELCDismissedPetition dated 9th October 2012 (filed 10th October 2012)· [2019] KEELC 4982 (KLR)

George Mwandoe & 8 others v Director of Land Adjudication & Settlement & 2 others; Austin Vita Mzee (Interested Party) [2019] KEELC 4982 (KLR)

Environment and Land Court
15 January 2019
CYC. Yano
2,279 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed the Mwachabo Settlement Scheme land is public government land, not community land, and dismissed the communities' petition with costs.

What this practically means

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Executive summary

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Five Petitioners, purporting to act for the Chawia, Wamuri, Sechu and Gambwa communities, petitioned the Environment and Land Court at Mombasa seeking declarations that the Mwachabo Squatters Settlement Scheme was unconstitutional, that the suit land was ancestral/trust landvable only through adjudication and subdivision registration, and an order compelling the Respondents to declare an adjudication section under the Land Adjudication Act. The Respondents and an Interested Party (Austin Vita Mzee, enjoined on 29th May 2014) countered that the land had always been unalienated government land, surrendered to the Settlement Fund Trustees in 1995 for settlement of squatters, with 1298 plots already allocated with Letters of Offer, some to the Petitioners themselves. The court framed four issues: the status of the land, the applicable allocation regime, whether property rights were infringed, and the appropriate orders. Relying on correspondence from 1972, 1973, 1995 and 1996, the court held the land to be government/public land; that Section 3 of the Land Adjudication Act applies only to trust/community land, and the settlement programme properly proceeded under Sections 167 and 168 of the Agriculture Act Cap 318, a function now vested in the National Land Commission under Sections 134 and 135 of the Land Act, 2012. The court found no infringement of property rights, observed that the process conferred proprietary rights on the Petitioners, and condemned the petition as an afterthought tainted with malice. The petition was dismissed with costs to the Respondents and the Interested Party.

Key legal issues

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01

Status of the suit land

Holding

The suit land is government/public land, not ancestral, trust or community land

Reasoning

Historical correspondence from 1972, 1973, 1995 and 1996 consistently referred to Mwachabo Settlement Scheme, and the land was reserved by Government for settlement and communicated to the Settlement Fund Trustees in 1995. The Petitioners adduced no proof of ancestral/community/trust land. Over half the plots had been allocated with titles issued, including to some Petitioners.

p. 3
02

Applicable allocation regime

Holding

The Land Adjudication Act is inapplicable; the settlement scheme was the correct legal route

Reasoning

Section 3 of the Land Adjudication Act governs only trust/community land. Having been reserved for the Settlement Fund Trustees, the land could only be dealt with under Sections 167 and 168 of the Agriculture Act Cap 318, a role now vested in the National Land Commission under Sections 134 and 135 of the Land Act, 2012.

p. 4
03

Infringement of property rights

Holding

No infringement of the Petitioners' property rights was demonstrated

Reasoning

The settlement process was ongoing and some Petitioners had already benefited, including receiving titles. The process was aimed at giving the Petitioners proprietary rights, not depriving them. The court found the petition an afterthought tainted with malice, given that some Petitioners led the exercise and benefited before objecting.

p. 4

Legal principles established

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  • Section 3 of the Land Adjudication Act applies only to the ascertainment of rights over trust/community lands, not government land reserved for settlement
  • Settlement of government land reserved for a settlement scheme proceeds under the Agriculture Act (Cap 318), now under the National Land Commission via Sections 134 and 135 of the Land Act, 2012

Court orders

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  1. 1.The petition is dismissed with costs to the Respondents and the Interested Party

Authorities

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Legislation

  • Land Adjudication ActSection 3
  • Agriculture Act Cap 318 (repealed by Agriculture and Food Authority Act No.13 of 2013)Sections 167 and 168
  • Land Act, 2012Sections 134 and 135

Cases cited (3)

  • Ann Itumbi Kiseli –v= James Muriuki Muriith
    (2013)eKLR
  • Stephen Wambua Kithuku –v- Abdul Karim Omar
    (2013)eKLR
  • Mohamed Ahmed Khalid & 11 others –v- Director Land Adjudication & 2 Others
    (2013)eKLR
Jurisdiction invoked
Constitution of Kenya petition (Article 40 property rights invoked through the reliefs sought)

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, "George Mwandoe & 8 others v Director of Land Adjudication & Settlement & 2 others; Austin Vita Mzee (Interested Party) [2019] KEELC 4982 (KLR)", Case Analysis (2019). Petition dated 9th October 2012 (filed 10th October 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4982/eng@2019-01-15

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