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ELCStruck Out· [2020] KEELC 3778 (KLR)

Benedict Nguma Singi & 34 others v William Nyamai & 6 others [2020] KEELC 3778 (KLR)

Environment and Land Court
31 January 2020
1,217 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 struck out a land suit because the property was in an adjudication section and the owners lacked the required written consent to sue.

What this practically means

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Executive summary

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The Defendants raised a Notice of Preliminary Objection dated 25th November 2017 contending that the Environment and Land Court lacked jurisdiction because the suit land in Kivandeni Area, Kanziko Location, was within an adjudication section. The Plaintiffs, who had sued by Plaint dated 1st July 2017 claiming occupation since 1894 and seeking a declaration of exclusive possession and the overturning of the Deputy County Commissioner's findings, opposed the objection, arguing that the notice establishing the adjudication section, issued on 16th May 2017, was valid for only four months and had lapsed, and that it had never been gazetted. The Defendants relied on Section 30 of the Land Adjudication Act, which ousts the court's jurisdiction over disputes concerning land in an adjudication section absent the written consent of the Land Adjudication and Settlement Officer, and produced the Land Adjudication Officer's letter of 16th May 2017 declaring Kivandeni an adjudication section with defined boundaries. The court found that the suit property fell within the established adjudication section, that the Plaintiffs admitted the land was being demarcated by government officials, and that the Plaintiffs had never obtained the required written consent before filing suit. The court accordingly upheld the Preliminary Objection and struck out the Plaint dated 1st July 2017 with costs on 31st January 2020.

Key legal issues

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01

Whether Section 30(1) of the Land Adjudication Act ousts the court's jurisdiction over the suit land

Holding

It does; the suit land falls within the Kivandeni Adjudication Section established under Section 5 of the Act, and the Plaintiffs filed suit without the required written consent of the Land Adjudication Officer

Reasoning

The Land Adjudication Officer had, by letter dated 16th May 2017, declared Kivandeni Sub-location an adjudication section under Section 5 of the Land Adjudication Act, with defined perimeter boundaries. Section 30(1) bars the institution and entertainment of civil proceedings concerning interests in land in an adjudication section absent written consent. The Plaintiffs did not deny the land fell within the adjudication boundaries and admitted demarcation by government officials was ongoing. Aggrieved parties may appeal to the Minister under Section 30(3). The Preliminary Objection was therefore meritorious.

p. 2
02

Whether the lapse of the four-month notice period for presenting claims defeated the Preliminary Objection

Holding

No; the ouster under Section 30(1) operates until the adjudication register becomes final, so the suit remained barred notwithstanding the Plaintiffs' argument on the notice period

Reasoning

The Plaintiffs argued that the notice establishing the adjudication section, issued on 16th May 2017, was valid for four months and had lapsed by the time the Preliminary Objection was filed on 27th November 2017. The court did not accept this as displacing the statutory bar: the barring provision in Section 30(1) applies until the adjudication register for the section has become final in all respects under Section 29(3), and the Plaintiffs admittedly never obtained the adjudication officer's written consent.

p. 2

Legal principles established

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  • Where land is within an adjudication section, no person may institute, and no court may entertain, civil proceedings concerning an interest in that land without the written consent of the adjudication officer until the adjudication register has become final

Court orders

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  1. 1.The Plaintiffs' Plaint dated 1st July, 2017 is struck out with costs

Authorities

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Legislation

  • Land Adjudication Act (Cap 284)Section 5
  • Land Adjudication Act (Cap 284)Section 30(1)
  • Land Adjudication Act (Cap 284)Section 30(3)
  • Land Adjudication Act (Cap 284)Section 29(3)
Jurisdiction invoked
Section 30(1) of the Land Adjudication Act (Cap 284) barring civil proceedings concerning land in an adjudication section

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, "Benedict Nguma Singi & 34 others v William Nyamai & 6 others [2020] KEELC 3778 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3778/eng@2020-01-31

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