County Government of Tana River v Mohamed Gorre Bulale & 3 others [2021] KEELC 245 (KLR)
The bottom line
#A Kenyan court voided the sale of unregistered community land, confirming that no individual can sell land held in trust for a community.
What this practically means
#Executive summary
#Key legal issues
#Status of the suit property as unregistered community land
The suit property is unregistered and un-surveyed community land held in trust by the County Government of Tana River on behalf of the Munyoyaya community.
The plaintiff's testimony that the suit property is unregistered and un-surveyed community land held in trust by the County Government was unchallenged and uncontroverted, as the defendants filed no defence and did not participate in the trial. Article 63(3) of the Constitution and Section 6 of the Community Land Act place unregistered community land in the hands of county governments as trustees.
Validity of the sale of unregistered community land by individual defendants
The sale agreement dated 14th December 2017 was irregular, illegal, null and void, and was revoked/annulled.
The 3rd and 4th defendants had no authority or capacity to alienate or sell unregistered community land; they showed no process to convert the land to private property and did not engage the community or the County Government. Article 64 prohibits disposition of community land except as provided by legislation, and Section 6(8) of the Community Land Act bars sale or disposal of unregistered community land held in trust.
Claim for general damages
The claim for general damages was not proved and was refused.
Although the plaint pleaded general damages and the nature of those damages was categorised at the hearing, the plaintiff's witnesses did not testify on the particulars of the loss, so the claim was not proved to the required standard.
Legal principles established
#- Community land cannot be individually owned against the interest of the larger community, and any sale of community land that does not adhere to the Community Land Act and the Constitution, including public participation and involvement of vulnerable members, is illegal and discriminatory.
- Unregistered community land is held by the County Government in trust for the communities for which it is held, and cannot be disposed of otherwise than in accordance with the Community Land Act.
Court orders
#- 1.A declaration that the Suit Property is and remains unregistered and un-surveyed community land held in trust by the plaintiff on behalf of the local community, and revocation/annulment of the Sale Agreement dated 14th December 2017
- 2.A permanent injunction restraining the defendants jointly and/or severally, their agents and employees, from clearing bushes, dealing in, trespassing, fencing, transferring, disposing, erecting structures or otherwise interfering with the suit property and any other community land owned by the local community until the land adjudication programme is commenced and completed and community land title documents are issued
- 3.Costs of the suit with interest at court rates from the date of judgment till payment in full, borne by the defendants jointly and severally
- Jurisdiction invoked
- Article 63 and 64 of the Constitution and the Community Land Act, No. 27 of 2016
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "County Government of Tana River v Mohamed Gorre Bulale & 3 others [2021] KEELC 245 (KLR)", Case Analysis (2021). ELC Case No. 24 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/245/eng@2021-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.