Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Case No. 25 of 2018· [2021] KEELC 790 (KLR)

County Government of Tana River v Mohammed Amin Muhumed & 3 others [2021] KEELC 790 (KLR)

Environment and Land Court
26 November 2021
ECE.C. CHERONO
2,017 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court ruled that unregistered community land belongs to the community, and private individuals cannot lawfully sell it.

What this practically means

#

Executive summary

#
The County Government of Tana River sued four defendants over an approximately 820 metres by 3.5 kilometres piece of un-surveyed land along River Tana at Malika Mansa, Madogo, Saka Location, seeking an interlocutory and permanent injunction, a declaration that the land is unregistered community land held in trust by the county, revocation of a sale agreement dated 5th December 2017, general damages and costs. The plaintiff alleged the 2nd and 4th defendants sold part of the land to the 1st defendant without authority of the Munyoyaya community or the women and children of the Fodho family. The defendants did not file defences or participate in the trial despite service, and their case was marked closed. The plaintiff called two witnesses: a clan leader who testified the six-clan Munyoyaya community had occupied the land since pre-colonial times and that women and children were excluded from the sale, and the sub-county physical planner who described the findings of a gubernatorial task force and confirmed the land was un-surveyed, unregistered community land. The court held that under Article 63(3) of the Constitution and section 6 of the Community Land Act, unregistered community land is held by the county government in trust for the community, and that the defendants had no capacity to alienate it; the sale was therefore irregular and illegal. The declaration was granted, the sale agreement annulled, and a permanent injunction issued until land adjudication is completed. The claim for general damages failed for want of particulars. Costs with interest were awarded to the plaintiff jointly and severally against the defendants.

Key legal issues

#
01

Sale of unregistered community land without authority

Holding

The sale agreement was irregular and illegal and is annulled; the defendants had no capacity to alienate unregistered community land

Reasoning

Article 63(3) of the Constitution vests unregistered community land in the County Government, holding it in trust for the communities, and Article 64 prohibits disposition except as provided by legislation. Section 6 of the Community Land Act confirms the County's fiduciary role. The uncontroverted evidence established the suit property as unregistered, un-surveyed community land, so the 2nd-4th defendants' sale to the 1st defendant was void and was revoked by the court.

p. 3
02

Effect of unopposed/uncontroverted evidence

Holding

Where defendants fail to file a defence or participate in trial, the plaintiff's uncontroverted evidence stands unchallenged

Reasoning

The defendants, despite service, filed no defence and did not participate in the proceedings; their case was marked closed. The testimony of the plaintiff's witnesses that the suit property is unregistered, un-surveyed community land held in trust by the county, and the fact of the sale agreement, therefore remained uncontroverted and was accepted as establishing the plaintiff's case.

p. 3

Legal principles established

#
  • Unregistered community land is held by the County Government in trust for the communities for which it is held, and cannot be sold or disposed of by private individuals

Court orders

#
  1. 1.A declaration that the Suit Property is unregistered community land held in trust by the plaintiff on behalf of the local community and that the Sale Agreement dated 5th December 2017 is null and void and is annulled
  2. 2.A permanent injunction restraining the Defendants jointly and/or severally, their agents and employees, from clearing bushes, dealing in, trespassing, fencing, transferring, disposing of or interfering with the suit property until the land adjudication programme is commenced and completed and community land title documents are issued
  3. 3.Costs of the suit with interest at court rates to be borne by the Defendants jointly and severally

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 63(2), 63(3), Article 64
  • Community Land Act No. 27 of 2016Sections 6, 12, 18

Cases cited (5)

  • Naftali Ruthi Kinyua v Patrick Thuita Gachure & Another
    [2015] eKLR
  • Bahola Mkalindi Rhigo & 9 Others v Micheal Seth Kaseme & 3 others
    [2016] eKLR
  • Nguruman Limited v Jan Blonde Nielsen & 2 Others
    CA 2014 eKLR
  • American Cyanamid Co. v Ethicon Ltd
    (1975) 2 WLR 316
  • County Government of Tana River v Binesa Wato Danko & 3 others
    [2020] eKLR
Jurisdiction invoked
Article 63 of the Constitution and the Community Land Act, No. 27 of 2016 (original jurisdiction of the Environment and Land Court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

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 Mohammed Amin Muhumed & 3 others [2021] KEELC 790 (KLR)", Case Analysis (2021). ELC Case No. 25 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/790/eng@2021-11-26

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