B2 Yatta Ranching Co-operative Society Ltd v County Council of Kitui & 12 others [2020] KEELC 3005 (KLR)
The bottom line
#A Kenyan court voided a land consent order made without the government's involvement, showing that parties left out of such deals can have them undone.
What this practically means
#Executive summary
#Key legal issues
#Joinder of the Attorney General on behalf of the Administration Police
The joinder was allowed since it was unopposed and necessary because the Administration Police claims 5,300 acres of the suit land
The court noted the prayer was unopposed and that parties who admitted the Administration Police's entitlement to 300 acres could not oppose it. Since the Administration Police now asserts a larger entitlement and occupies the land with installations, its participation through the Attorney General enables the court to completely adjudicate all questions in the suit.
Validity of the consent order of 14th June 2010 and consequential orders
The consent order and the orders of 22nd January 2019 and 18th June 2019 were set aside as a nullity because the Attorney General was not enjoined when the consent was recorded
Parties recorded a consent surrendering 300 acres to the Administration Police and later obtained orders directing the surveyor to excise that land, yet the Attorney General, representing the beneficiary government department, was never a party. The court held such a consent is a nullity and set the orders aside ex debito justitiae.
Entitlement of the 2nd to 7th Defendants to an injunction
Refused; no prima facie case established, and their own pleadings admit the land is Trust Land held by the 1st Defendant
The Defendants admitted the suit land is Trust Land held in trust and sought adjudication, survey and registration. The court held that adjudication of rights on trust/community land is a statutory process for the County Government and National Land Commission, which an injunction would only stop. Their evidence of occupation was also weak: undated photographs and a letter of 16th November 2011 that was not a formal Letter of Allotment supported by council minutes.
Leave to amend Defence and file Counter-claim
Allowed; no prejudice not compensable in costs was shown
Applying Order 8 Rule 5(1) and the Central Bank of Kenya v Trust Bank principle that amendments be freely allowed, the court found the Plaintiff, 1st Defendant and Intended 13th Defendant had not demonstrated prejudice. All parties would have an opportunity to respond to the Amended Defence and Counter-claim, so the amendment was permitted.
Legal principles established
#- A consent order affecting a party who was not enjoined in the proceedings is a nullity
- Amendments to pleadings should be freely allowed at any stage unless they cause prejudice not compensable in costs
- The court is not the entity mandated to allocate land or declare an adjudication area; that mandate lies with the County Government and the National Land Commission
Court orders
#- 1.The consent order of 14th June 2010 and the orders of 22nd January 2019 and 18th June 2019 are set aside
- 2.The 2nd to 7th Defendants' Notice of Motion dated 18th July 2019 (for joinder and amendment) is allowed in terms of prayer numbers 2 and 3
- 3.The 2nd to 7th Defendants' Notice of Motion dated 26th July 2019 is dismissed
- 4.The Notice of Motion by the Attorney General dated 18th July 2019 is allowed in terms of prayer numbers 3 and 4
- 5.The Notice of Motion dated 22nd August 2019 by the Attorney General is dismissed
- 6.The Attorney General and the 2nd to 7th Defendants to file their Defence and Amended Defence respectively within thirty (30) days of the Ruling
- 7.Each party to bear his/its own costs
- Jurisdiction invoked
- Inherent jurisdiction and Civil Procedure Rules (Order 1, Order 8 Rule 5(1)) over interlocutory applications in an originating suit filed by plaint on 14th February 2008
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "B2 Yatta Ranching Co-operative Society Ltd v County Council of Kitui & 12 others [2020] KEELC 3005 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3005/eng@2020-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.