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ELCDismissedEnvironment and Land Court Suit (Kajiado) — number not stated in judgment· [2021] KEELC 1693 (KLR)

Sunte Nenkalash Lesire & 3 others v Mboi Lemaron [2021] KEELC 1693 (KLR)

Environment and Land Court
7 October 2021
MGM. N. Gicheru
1,398 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kajiado Environment and Land Court dismissed a family land claim, ruling their title deed void because it was issued against an existing court decree.

What this practically means

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Executive summary

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The four plaintiffs, registered jointly on 10th April 2014 as proprietors of L.R Kajiado/Kaputiei South/838 (145.70 hectares), sued the defendant for eviction, demolition of structures, and a permanent injunction restraining trespass, alienation, disposal or interference with the land, plus costs. They asserted that the defendant and his mother had merely been allowed to occupy the land pending allocation of their own land, and that an award of the Kajiado Land Disputes Tribunal in the defendant's favour had been quashed in HCC Miscellaneous Application No. 46 of 2012. The defendant, son of the original owner Nenkalash Serina Lesire (member 62 of Imbuko Group Ranch), contended that the second plaintiff irregularly registered herself and later her co-plaintiffs; that his father complained to the Land Registrar, prompting a restriction in 1996; that the father died before transfer; that the tribunal ordered the land shared among the deceased's four wives; and that this award was adopted as judgment in Kajiado RM Land Case No. 3 of 2012 and never set aside, the Machakos High Court judicial review having been dismissed. The court framed three issues: the defendant's paternity, the effect of the 2012 decree, and the validity of the plaintiffs' title. It held that the plaintiffs failed to prove the defendant was not the owner's son, having raised paternity only in submissions; that the decree stands, as the plaintiffs' only remedy after the ELC Act commenced was appeal, which they declined; and that the plaintiffs' title deed was void for issuing contrary to that decree. The suit was dismissed with costs, with the tribunal award and decree to be implemented in full.

Key legal issues

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01

Defendant's paternity/relationship to the original owner

Holding

Plaintiffs failed to prove the defendant was not the son of the original land owner; the issue was raised only in submissions and not pleaded

Reasoning

The plaintiffs' witness statements made no assertion that the defendant was not the son of the deceased owner, and no evidence to that effect was filed. Raising paternity for the first time in submissions precluded the defendant from rebutting it. The court therefore found the plaintiffs had not discharged their burden on this issue.

p. 3
02

Effect of the decree in Kajiado Land Case No. 3 of 2012

Holding

The decree stands; after the ELC Act commenced, the plaintiffs' only option was appeal, not a fresh suit, and the judicial review at the High Court having failed they chose not to appeal

Reasoning

Practice Direction No. 3 issued by the Chief Justice under Gazette Notice No. 1617 of 17th February 2012 required pending land proceedings to be moved to the nearest High Court. This barred a fresh suit in the High Court or ELC. The plaintiffs' judicial review to quash the award failed in Machakos HCCC Misc. Application No. 46 of 2012, and they elected not to appeal, leaving the decree intact.

p. 3
03

Validity of the plaintiffs' title deed

Holding

The title deed is void for having been issued contrary to the decree in Kajiado RM Land Case No. 3 of 2012

Reasoning

The tribunal award, adopted as judgment in Kajiado RM Land Case No. 3 of 2012 directing the land to be shared among the four wives, was never set aside — the Machakos High Court judicial review was dismissed. Registration of the plaintiffs in 2014, after the restrictions were lifted, issued contrary to that subsisting decree and was therefore void.

p. 3

Legal principles established

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  • Where the Environment and Land Court Act had commenced, parties to pending land disputes could not file fresh suits; their remedy was appeal from the tribunal-derived proceedings, per Practice Direction No. 3 in Gazette Notice No. 1617 of 17th February 2012
  • A party cannot raise an issue (here, paternity) for the first time in submissions without pleadings or evidence, denying the opponent opportunity to rebut
  • A title issued contrary to a subsisting court decree is void

Court orders

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  1. 1.The plaintiffs' suit is dismissed with costs
  2. 2.The award of the Kajiado Land Disputes Tribunal and the decree in Kajiado Resident Magistrate's Land Case No. 3 of 2012 be implemented in full

Authorities

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Legislation

  • Environment and Land Court ActAct No. 19 of 2011 (commencement 30th August 2011)
  • Practice Directions on proceedings relating to the Environment and the use and occupation of, and title to landDirection No. 3, Gazette Notice No. 1617 of 17th February 2012

Cases cited (2)

  • Machakos High Court Miscellaneous Application No. 46 of 2012
  • Kajiado Resident Magistrate's Court Land Case No. 3 of 2012
Jurisdiction invoked
Environment and Land Court Act (Act No. 19 of 2011) — original jurisdiction over title to land

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, "Sunte Nenkalash Lesire & 3 others v Mboi Lemaron [2021] KEELC 1693 (KLR)", Case Analysis (2021). Environment and Land Court Suit (Kajiado) — number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1693/eng@2021-10-07

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