County Government of Tana River v Mohamed Gore Bulale & 3 others [2021] KEELC 2549 (KLR)

Article 61(2) of the Constitution classifies land as public, community or private. Private land under Article 64 must be registered under freehold or leasehold tenure or declared private by statute. The 3rd Respondent admitted the land is neither registered nor surveyed, and the annexed sketch plan was not authenticated by the Director of Survey as required by the Survey Act. Since the land was never adjudicated or registered, it remains community land held by the County Government in trust under Section 10(3) of the Community Land Act.

The Applicant, as trustee under Section 10(3) of the Community Land Act, demonstrated that the property is unregistered community land which the 3rd and 4th Respondents had no authority to dispose of to the 1st and 2nd Respondents. The court relied on Bahola Mkalindi Rhigho, holding that unadjudicated trust land belongs to local tribes and only adjudication and registration transform it into private land. This established a prima facie case with overwhelming chances of success.

The Applicant showed that the Munyoyaya community derives its livelihood from farming on the suit property, and that the land is generational, inter-generational and intra-generational in character. Disposition of unregistered community land would defeat the community's social, economic and cultural rights and forestall ongoing adjudication programmes. Such ancestral land, heritage and livelihood loss cannot be adequately compensated by an award of damages, satisfying the second principle.

Under the Giella cascade, once the applicant establishes a prima facie case and irreparable injury, the court need not resort to balance of convenience. The court expressly declined to engage the third principle because the first two were demonstrated.