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ELCDismissed· [2020] KEELC 1375 (KLR)

Said Sadiki Abdalla (Suing on behalf of the Estate of the late Swadiki Abdalla Kofik v National Land Commission & another [2020] KEELC 1375 (KLR)

Environment and Land Court
18 September 2020
JOJ. O. Olola
2,239 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court dismissed a family's bid to stop a county ice plant project, ruling they had no provable private ownership of unregistered community land.

What this practically means

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Executive summary

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The Plaintiff, suing on behalf of the Estate of the late Swadiki Abdalla Kofik, claimed four acres of un-adjudicated land at Kipini occupied by his family since 1985 and sought declarations, a permanent injunction, an order compelling the National Land Commission to alienate the plot and issue title, or alternatively compensation from the County Government of Tana River, which intended to build an ice plant and cold storage facility on the land. Both Defendants raised preliminary objections: the 1st Defendant contended the suit offended Section 30 of the Land Adjudication Act for want of the adjudication officer's written consent, while the 2nd Defendant argued the Court lacked jurisdiction over un-adjudicated land and that the Plaintiff had not exhausted the dispute resolution mechanisms under the Land Consolidation Act and Land Adjudication Act. The court held that both statutes apply only to areas declared and gazetted as adjudication areas by the Minister, and the Defendants had placed nothing before the court demonstrating such gazettment. The consent provisions do not oust the Court's jurisdiction; they merely defer litigation until the adjudication process is complete. Both preliminary objections were accordingly dismissed. On the injunction application, applying the Nguruman triple test, the court found the Plaintiff had admitted the land was unregistered community land held in trust by the County Government under Article 63(3) of the Constitution and had failed to demonstrate how private proprietary interests were acquired. The application was dismissed with costs of the objections and application in the cause. Judgment delivered at Malindi on 18th September 2020 by J.O. Olola, Judge.

Key legal issues

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01

Whether the suit was barred for want of the adjudication officer's consent under Section 30(1) of the Land Adjudication Act

Holding

The preliminary objections failed because the Defendants did not demonstrate that the suit land had been gazetted as an adjudication area, so the statutory consent requirement was not triggered and the Court's jurisdiction was not ousted.

Reasoning

The court held that both the Land Consolidation Act and Land Adjudication Act apply only to areas declared and gazetted by the Minister. The Defendants, despite protracted preliminary objections, placed nothing before the court showing the suit premises fell within a gazetted adjudication area or section. Consequently there was no basis for requiring the Plaintiff to obtain the adjudication officer's consent, and the two provisions merely defer litigation until adjudication is complete rather than ousting jurisdiction.

p. 3
02

Whether the Plaintiff established a prima facie case for an interlocutory injunction

Holding

No - the Plaintiff admitted the land was unregistered community land and did not show how he acquired private proprietary interests over it.

Reasoning

Applying the Nguruman triple test, the court noted the Plaintiff's own admission that the entire land within Kipini is unregistered community land under the control of the County Government, held in trust under Article 63(3) of the Constitution. Being communal, such land can only be owned communally, and the Plaintiff did not explain how he or his deceased father acquired private proprietary interests. Nor did he dispute that community meetings were held and the land identified and offered to the County Government for the cold storage project.

p. 3

Legal principles established

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  • The Land Consolidation Act and the Land Adjudication Act apply only to areas duly declared and gazetted as adjudication areas by the Minister
  • Sections 8(1) of Cap 283 and 30(1) of Cap 284 do not oust the jurisdiction of the Court; they merely stay proceedings until the adjudication process is complete
  • Unregistered community land is held in trust by County Governments on behalf of communities

Court orders

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  1. 1.The two Preliminary Objections are dismissed as without basis
  2. 2.The Plaintiff's Notice of Motion application for injunction is dismissed
  3. 3.The costs of both the Objections and the Plaintiff's application shall be in the cause

Authorities

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Legislation

  • Land Adjudication ActSection 30(1)
  • Land Adjudication ActSection 29(3)
  • Land Adjudication ActSection 13(1)
  • Land Adjudication ActSection 3(1)
  • Land Consolidation Act (Cap 283)Section 8(1)
  • Land Consolidation Act (Cap 283)Section 2(1)
  • Constitution of KenyaArticle 63(3)
  • Constitution of KenyaArticle 63(5)
  • Land ActSection 92(d)

Cases cited (1)

  • Nguruman Ltd –vs- Jan Bonde Nielsen & 2 Others
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction under Article 162(2)(b) of the Constitution (Environment and Land Court) - implied by the nature of the land dispute; no express provision cited

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, "Said Sadiki Abdalla (Suing on behalf of the Estate of the late Swadiki Abdalla Kofik v National Land Commission & another [2020] KEELC 1375 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1375/eng@2020-09-18

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