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ELCDismissed· [2021] KEELC 3195 (KLR)

Rhoda S. Kiilu v Jiangxi Water & Hydropower Construction Kenya Limited [2021] KEELC 3195 (KLR)

Environment and Land Court
26 May 2021
1,566 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed you can sue for trespass on adjudicated land without the Land Adjudication Officer's consent.

What this practically means

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Executive summary

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The defendant raised a preliminary objection dated 10th November 2020 seeking dismissal of the plaintiff's suit on the ground that it was filed without the consent of the Land Adjudication Officer, as required by section 8 of the Land Consolidation Act (Cap 283) and section 30 of the Land Adjudication Act (Cap 284), the suit parcels being in Kirindine 'B' adjudication section. The defendant argued that lack of consent rendered the suit a nullity from inception, incurable by amendment. The plaintiff opposed, contending that the objection was frivolous; that her claim was for injunction and damages for trespass, not a determination of interest in land; and that a letter dated 7/8/2018 from the Land Adjudication & Settlement Officer showed the adjudication register had been published as complete. Relying on the Mukisa Biscuits threshold as restated in the Joho case, the court held that a preliminary objection must be a pure point of law. Applying section 30(1), the court found the consent requirement applies only where the claim concerns an interest in land within an incomplete adjudication process. The plaintiff's claim for permanent injunction did not call for ascertainment of her interest. The court also placed the burden on the defendant, under section 107 of the Evidence Act, to prove the register was not final, which he failed to do, and adopted the holding of Munyao Sila J in Martha Kigen v Johana Tibino. The letter of 7/8/2018 confirmed the register was complete. The preliminary objection was dismissed with costs to the plaintiff on 26th May 2021.

Key legal issues

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01

Whether the suit was barred for want of consent under section 30 of the Land Adjudication Act and section 8 of the Land Consolidation Act

Holding

No consent was required because the plaintiff's claim was for injunction and damages for trespass, not a determination of interest in land, and the adjudication register was complete

Reasoning

The consent requirement applies only where the claim concerns an interest in land in an adjudication section whose register has not become final. The plaintiff sought a permanent injunction, not a declaration of entitlement or ascertainment of her interest. The letter dated 7/8/2018 from the Land Adjudication & Settlement Officer showed the register was published as complete, and the defendant produced no proof that the adjudication process was ongoing.

p. 2
02

Whether the objection met the Mukisa Biscuits threshold for a preliminary objection

Holding

A preliminary objection must be a pure point of law that may dispose of the suit without ascertaining facts or exercising discretion

Reasoning

The court restated the classic Mukisa Biscuits formulation adopted in the Joho case. The defendant's contention that consent was mandatory was arguably a point of law, but the claim of an incomplete adjudication register involved factual questions that the defendant failed to prove, undermining the objection.

p. 2

Legal principles established

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  • A consent of the Land Adjudication Officer is required only where the claim concerns an interest in land within an incomplete adjudication process, not for claims such as injunction and damages for trespass
  • A suit that questions the process of land adjudication rather than the determination of interests does not require the consent of the land adjudication officer
  • The party alleging that the adjudication register is not final bears the burden of proving it

Court orders

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  1. 1.The Preliminary Objection dated 10th November, 2020 is dismissed with costs to the plaintiff

Authorities

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Legislation

  • Land Consolidation Actsection 8
  • Land Adjudication Actsection 30(1)
  • Land Adjudication Actsection 29(3)
  • Land Adjudication Actsection 13
  • Evidence Actsection 107

Cases cited (14)

  • William Mutuura Kairiba V Samuel Nkari & 2 others
    [2018]eKLR
  • Reuben Mwongera M'Itelekwa V Paul Kigea Nabea
    [2014]eKLR
  • Mugambi & another (suing as the legal representative of the estate of Peter Etharia M'Kailibi) & 4 others V Zachary Baariu & 6 others
    [2018]eKLR
  • Nicholas Tukei V Chepochepkatug Loyeruk & 2 others
    [2013]eKLR
  • Jackson Koome V M'Limongi M'Ikuamba & 2 thers
    [2018]eKLR
  • Mwangi Stephen Muriithi V Daniel T. Arap Moi & another
    [2017]eKLR
  • Stanley Lezen Mliwa V Leonard Kapala Makangula & 2 others
    [2007]eKLR
  • Martha Kigen V Johana Tibino
    [2014]eKLR
  • Francis Mwiti Wanderi V Joseph Mbijiwe & another
    [2019]eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors
    [1969] EA 696
  • Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 Others
    [2014] eKLR
  • Muthara Njuri Ncheke Council of Elders & another v Committee of NgareMara/Gambella Adjudication Section & 2 others
    [2019] eKLR
  • Republic vs Musanka Ole Runkes Tarakwa & 5 others exparte Joseph Lelol Lekitio & others
    (2015) eKLR
  • Johnson Mbaabu Mburugu & another v Mathiu Nabea & 9 others
    [2020] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land; objection based on section 8 of the Land Consolidation Act (Cap 283) and section 30 of the Land Adjudication Act (Cap 284)

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, "Rhoda S. Kiilu v Jiangxi Water & Hydropower Construction Kenya Limited [2021] KEELC 3195 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3195/eng@2021-05-26

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