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ELCDismissedELC No. 377 of 2013 (lead file), consolidated with ELC No. 394 of 2013· [2020] KEELC 3038 (KLR)

Stephen K.A. Sang & Another v Chebii Boiyo & Another [2020] KEELC 3038 (KLR)

Environment and Land Court
23 April 2020
3,553 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Two consolidated Environment and Land Court suits (ELC No. 377 of 2013 as lead file and ELC No. 394 of 2013) concerned competing clan claims over unadjudicated land in Sagatia, Emsea location, Elgeyo-Marakwet. The plaintiffs, claiming as members of the Kaptoyoi clan, sought a permanent injunction restraining the defendants from encroaching on, trespassing on or interfering with the suit land. The defendants, claiming as members of the Kobil clan, filed a defence and counterclaim seeking a declaration that the land belonged to them and a permanent injunction against the plaintiffs. After failed arbitration pursuant to a court order, the matter proceeded to full hearing. The plaintiffs relied on Articles 61 and 63 of the Constitution and authorities on locus standi of clan members over ancestral land; the defendants relied on the Community Land Act and Article 159(2)(c) on alternative dispute resolution, highlighting the arbitration report of the Deputy County Commissioner and elders which found the land to be 'Chebabwa' - land not ancestral to anyone, unmarked by stones, on which anybody could settle. The court found the parties formed one community with common ancestry, that the land was unadjudicated and undocumented for registration, and that customary rights must be recognized through the procedures laid down in the Community Land Act, which the court could not itself perform. Holding that the plaintiffs had not proved their case on a balance of probabilities, the court dismissed the suit with costs to the defendants and ordered the parties to stay on their respective portions as they had lived since time immemorial, restraining the plaintiffs from interfering with that arrangement.

Key legal issues

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01

Whether the suit land is community/ancestral land

Holding

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

Reasoning

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.

p. 5
02

Whether the court could determine entitlement to unadjudicated community land

Holding

No - customary land rights must be recognized, adjudicated and documented under the Community Land Act before the court can ascertain them

Reasoning

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.

p. 6
03

Whether the plaintiffs proved their claim on a balance of probabilities

Holding

The plaintiffs' case was not proved and was dismissed

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The plaintiffs' suit is dismissed with costs to the defendants
  2. 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. 3.The plaintiffs are restrained from interfering with the arrangement of staying together in their respective portions

Authorities

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Legislation

  • Constitution of KenyaArticle 61
  • Constitution of KenyaArticle 63
  • Constitution of KenyaArticle 159(2)(c)
  • Community Land ActSections 5 and 12; definition of 'community'
  • Evidence ActSection 109
  • Land Adjudication Act (referred to as 'land Adjudication Act')Not specified

Cases cited (5)

  • Mwangagi & 64 Others v Wote Town Council
    KLR (E & L) 616
  • Mureithi & 2 Others v Attorney General & 4 Others
    KLR (E&L) 707
  • Bahola Mkalindi Rhigho v Michael Seth Kaseme & 2 Ors
    [2012] eKLR
  • Koinange & 13 Ors v Koinange
    [1986] eKLR
  • Kalenyan Cheboi & Ors v William Syter & Anor
    [2014] eKLR
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

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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, "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.