Stephen K.A. Sang & Another v Chebii Boiyo & Another [2020] KEELC 3038 (KLR)
The bottom line
#The Environment and Land Court dismissed a clan land claim, ruling that unadjudicated community land rights must be documented under the Community Land Act before courts can enforce them.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit land is community/ancestral land
The land is unadjudicated 'Chebabwa' land, not proven to be ancestral to any one clan; anybody could settle on it, and the parties form one community with common ancestry
All witnesses agreed the land had not been adjudicated or gazetted as an adjudication section. The court-ordered arbitration by the Deputy County Commissioner and panel of elders concluded that 'Chebabwa' is land not ancestral to anyone and that ancestral lands are marked with stones, which were absent. The parties share common ancestry, blood or marriage and ethnicity, making them one community rather than rival claimants to distinct clan land.
Whether the court could determine entitlement to unadjudicated community land
No - customary land rights must be recognized, adjudicated and documented under the Community Land Act before the court can ascertain them
Article 63 and the Community Land Act recognize and protect customary land rights, but the Act prescribes procedures for ascertainment and recognition of community land. Since the suit land had not been adjudicated, declared an adjudication section or documented for registration, the court found it difficult to ascertain the parties' rights and had properly urged alternative dispute resolution, which twice returned the same outcome.
Whether the plaintiffs proved their claim on a balance of probabilities
The plaintiffs' case was not proved and was dismissed
The plaintiffs admitted the land was not traditionally demarcated and had no title. The Tribunal, the DO and the Assistant County Commissioner arbitration all found the parties should remain on their respective portions as they had lived since time immemorial. The court adopted that arrangement, restrained the plaintiffs from interfering with it, and awarded the defendants costs.
Legal principles established
#- Unregistered community/customary land rights are protected and recognized in law only through the ascertainment, adjudication and documentation procedures laid down under the Community Land Act; a court cannot itself ascertain such rights where those procedures have not been followed.
- Unregistered community land is held in trust by county governments on behalf of the communities for which it is held.
- A member of a community may pursue interests over ancestral/community land individually, without Letters of Administration or clan registration.
- Traditional dispute settlement mechanisms have great utility in customary land disputes, and a court is not bound by traditional elders' opinion but must give it considerable weight.
Court orders
#- 1.The plaintiffs' suit is dismissed with costs to the defendants
- 2.The plaintiffs and the defendants to stay on their respective portions as per the elders' finding that they should live together as they have been living since time immemorial
- 3.The plaintiffs are restrained from interfering with the arrangement of staying together in their respective portions
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land; parties' claims pleaded in plaint and defence and counterclaim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen K.A. Sang & Another v Chebii Boiyo & Another [2020] KEELC 3038 (KLR)", Case Analysis (2020). ELC No. 377 of 2013 (lead file), consolidated with ELC No. 394 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3038/eng@2020-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.