Nicholas Munyi Kaigua v Presbyterian Foundation as the Trustee of Presbyterian Church of East Africa-Pwani Presbytery & 2 others [2021] KEELC 1313 (KLR)
The bottom line
#Kenya's Environment and Land Court in Mombasa ruled that land titles issued through lawful adjudication beat a defective church title, ordering eviction and Kshs 2.5 million damages.
What this practically means
#Executive summary
#Key legal issues
#Validity of the plaintiff's titles obtained through adjudication
The plaintiff's titles to Plots 304 and 305 were upheld as genuine and valid, having issued through a lawful adjudication process in which disputes and objections were heard and determined.
The area was declared an adjudication section and the Director of Land Adjudication exempted only four specified parcels, not LR 208405. The adjudication process resolved disputes, assigning Plot 304 to Peter Mwasi and Plot 305 to Shingwaya Holdings, who sold to the plaintiff, whose name was then entered on the adjudication register and titles issued.
Legality of the purported 'setting apart' under the Trust Land Act
The setting apart published in the Gazette Notice of 18 September 2009 was unlawful; it was neither a valid setting apart by the Government nor by the County Council, and it could not override the adjudication declaration.
Under the repealed Constitution and the Trust Land Act, setting apart by Government was only for public purposes; setting apart by a County Council required notice by the council, Divisional Board process, council resolution and Gazette publication, with compensation. None of these requirements was met, and the Director of Land Adjudication did not exempt LR 208405 from adjudication.
Effect of pre-adjudication sales by the 2nd and 3rd defendants to the 1st defendant
The 1st defendant could not acquire good title because its vendors' rights were contingent on succeeding in adjudication, which they failed; the vendors sold only a speculative interest.
The sales of 2004-2006 predated the 2009/2010 adjudication. The vendors' title was subject to the adjudication outcome; the Adjudication Committee determined disputes against them. The court distinguished Yaxley v Gotts and Macharia Mwangi Maina on constructive trust because here the sellers sold what was actually not theirs.
Trespass and remedies
The 1st defendant, having no proprietary rights and no title in its name, was declared a trespasser, ordered to vacate within 3 months, and general damages of Kshs. 2,500,000/= awarded.
The 1st defendant developed a school on land it did not hold title to, ignoring stop letters from the Ministry of Lands; the court found such conduct careless if not reckless and protected the plaintiff's proprietary rights through eviction, demolition default order, damages and costs.
Legal principles established
#- Where an area has been declared an adjudication area, title to land therein (save for exempted parcels) can only properly issue through the adjudication process, and a title issued through a purported 'setting apart' cannot override titles issued following adjudication.
- Trust land may be set apart only for public purposes or purposes benefitting residents, following the statutory procedure including Divisional Board consideration, council resolution and Gazette publication by the council, with compensation to persons entitled by customary right.
- A purchaser of land before adjudication acquires only a contingent interest; if the vendor fails in adjudication, the purchaser obtains no good title.
Court orders
#- 1.Declaration that the plaintiff is the rightful owner of land comprised in titles Kilifi/Kawala 'A'/Kadzonzo/304 and 305
- 2.Declaration that the 1st defendant has no right to be on the land and is a trespasser
- 3.Order that the 1st defendant remove herself and all persons she has put into occupation from the two parcels within 3 months
- 4.Order that the 1st defendant remove her structures from the land within 3 months; in default the plaintiff at liberty to demolish and remove such structures and pass the costs to the 1st defendant
- 5.General damages of Kshs. 2,500,000/= against the 1st defendant for trespass, with interest from time of judgment
- 6.Costs of the suit to the plaintiff as against the 1st defendant; no orders on costs for or against the 2nd and 3rd defendants whose case abated
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (Environment and Land Court Act; plaint filed in first instance)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nicholas Munyi Kaigua v Presbyterian Foundation as the Trustee of Presbyterian Church of East Africa-Pwani Presbytery & 2 others [2021] KEELC 1313 (KLR)", Case Analysis (2021). Mombasa HCCC (not specified in judgment; plaint filed 19 September 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1313/eng@2021-10-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.