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ELCDismissedELC Case No. 8 of 2021 (Osorongai)· [2021] KEELC 3968 (KLR)

Isaac Kibiego Kitur v Flora Yego & 2 others [2021] KEELC 3968 (KLR)

Environment and Land Court
16 March 2021
MNMwangi Njoroge
1,550 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A registered landowner in Kenya lost an injunction against his daughters because an old tribunal award and their occupation raised real doubt over his title.

What this practically means

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Executive summary

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The plaintiff, an elderly registered owner of Title No Cherangani Kachibora Block 1/(Osorongai) 48, filed suit on 11 February 2021 with a motion seeking an interim injunction to restrain the defendants - his biological daughters - from interfering with the land. The application arose after the Land Control Board refused consent to his subdivision of the land, following the defendants' objections that they deserved more land. The defendants responded that the land was bought partly with dowry paid for them and farming contributions of their mothers, and that a Land Disputes Tribunal in Kitale PMCC No 14 of 2005 awarded 16 acres to their mother, 15 acres to a son of the second house and 5 acres to the 3rd defendant, with a government surveyor allegedly implementing the award on the ground; the defendants claimed only the portions their mothers were entitled to, on which they already reside. Applying the Giella v Cassman Brown test, the court held no prima facie case was established because the historical tribunal award claim and the defendants' occupation cast reasonable doubt on the plaintiff's assertion of absolute title; nor was irreparable loss shown, as damages would compensate the plaintiff if the defendants' claim failed. The court further observed that the remedy for denial of Land Control Board consent lies under the Land Control Act, whose processes the plaintiff had not exhausted. The application was dismissed with no orders as to costs, though the suit was prioritised for early hearing given the plaintiff's age.

Key legal issues

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01

Prima facie case for interim injunction

Holding

Not established - the alleged tribunal award and defendants' occupation cast reasonable doubt on the absoluteness of the plaintiff's title

Reasoning

Although a parent cannot be compelled to give children land, this was not simply children demanding more land. The defendants raised a plausible historical claim of a tribunal award demarcating land to their mother and the 3rd defendant, implemented by a government surveyor, with defendants already in occupation. This materially diluted the plaintiff's claim of indefeasible title.

p. 2
02

Irreparable harm/damages as alternative remedy

Holding

Damages would adequately compensate the plaintiff if the defendants' claim fails, so no irreparable loss was shown

Reasoning

The plaintiff did not demonstrate any loss of farming land or profits. Given the deep historical dispute over the land and the defendants' occupation, the court held damages would be an adequate remedy if the defendants' claim failed, defeating the second limb of the Giella test.

p. 2
03

Exhaustion of statutory remedies under the Land Control Act

Holding

The plaintiff's grievance arose from denial of Land Control Board consent and he had not exhausted remedies under that Act

Reasoning

The application stemmed from the Land Control Board's refusal of consent to subdivide. The court held that the remedy for such denial lies under the Land Control Act, not the court as a first-instance remedy, and the plaintiff had not shown he had exhausted the statutory processes before filing suit.

p. 2

Legal principles established

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  • A claim of an old Land Disputes Tribunal award, allegedly implemented on the ground by a government surveyor and with defendants in occupation, suffices to show a plaintiff may lack a prima facie case notwithstanding registered title
  • Where a denial of Land Control Board consent is the genesis of an application, the remedy lies under the Land Control Act and the applicant must first exhaust those statutory processes before resorting to the court

Court orders

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  1. 1.The plaintiff's application for interim injunction is dismissed
  2. 2.No orders as to costs
  3. 3.Parties to comply with the rules expeditiously in readiness for fixing of a hearing date; matter to be mentioned on 14th April 2021 for that purpose, the suit having been prioritised due to the plaintiff's age

Authorities

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Legislation

  • Land Control ActConsent to subdivide land

Cases cited (3)

  • Giella Vs Cassman Brown
    1973 EA 358
  • Edward Kipkosgei Chemurbii & another Vs Charles Kosgei & another
    2014 eKLR
  • Muriuki Marigi Vs Richard Marigi Muriuki & 2 others
    1997 eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (Environment and Land Court Act)

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, "Isaac Kibiego Kitur v Flora Yego & 2 others [2021] KEELC 3968 (KLR)", Case Analysis (2021). ELC Case No. 8 of 2021 (Osorongai). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3968/eng@2021-03-16

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