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ELCAllowedNot stated in the judgment (suit by plaint dated 25th October 2010, amended 18th July 2011 and re-amended 7th July 2014)· [2021] KEELC 4567 (KLR)

Samuel Njuguna Gitaka v Registrar of Lands Kwale & 3 others [2021] KEELC 4567 (KLR)

Environment and Land Court
19 January 2021
CYC.K. Yano
1,920 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled irregular land adjudication registrations in Kwale, holding that decisions made without hearing the affected claimant are unlawful and unenforceable.

What this practically means

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Executive summary

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The plaintiff, acting through an attorney under a Limited Power of Attorney dated 13th April 2018 owing to ill health, sued over parcels of land known as KASEMENI/ADJUDICATION NUMBERS 395, 411, 416 and 418 in Kwale County. His deceased father had purchased approximately 200 acres by an agreement dated 14th December 1981, and the plaintiff, as legal representative of the estate in Nairobi High Court Succession Cause No. 172 of 1988 (grant confirmed 16th October 2001), pursued the claim through the adjudication process. The Land Adjudication Committee ruled in the defendants' favour; the plaintiff's appeal to the Arbitration (Adjudication) Board was allowed on 3rd March 2002; but on 9th May 2007 the Land Adjudication Officer heard objections presented by the 2nd to 4th defendants without notifying the plaintiff, awarded them the parcels, and they were registered in their names. The plaintiff sought a permanent injunction, a declaration that the registrations were irregular and unlawful with restoration of the parcels to him, or alternatively prevailing market value, plus costs and interest. The 1st defendant denied the claim, pleading absence of notice under Section 13A of the Government Proceedings Act, but closed its case without calling any witness; the 2nd to 4th defendants did not enter appearance and interlocutory judgment was entered against them. The court held the suit competent, the plaintiff having obtained the Land Adjudication Officer's written consent under Section 30(1) of the Land Adjudication Act and given the statutory notice. Finding the plaintiff's unchallenged evidence sufficient, the court entered judgment for the plaintiff as prayed, with costs against the 2nd to 4th defendants.

Key legal issues

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01

Competency of the suit

Holding

The suit was competent: the plaintiff obtained the written consent of the Land Adjudication Officer as required by Section 30(1) of the Land Adjudication Act, and gave notice under Section 13A of the Government Proceedings Act.

Reasoning

The dispute concerned an interest in land in an adjudication section, so Section 30(1) of Cap 284 applied. The plaintiff produced the consent dated 14th June 2010 issued by the Land Adjudication Officer for Kwale Adjudication Area. Notice of intention to sue the 1st defendant, required by Section 13A of the Government Proceedings Act, was produced with the Attorney General's response.

p. 2
02

Proof of the plaintiff's case

Holding

The plaintiff proved his case on a balance of probabilities; the evidence was unchallenged because the 1st defendant called no witness and the 2nd to 4th defendants did not enter appearance.

Reasoning

The Land Adjudication Committee ruled for the defendants; on appeal the Arbitration Board allowed the plaintiff's appeal; but the Land Adjudication Officer then heard objections and awarded the parcels to the defendants without notifying or hearing the plaintiff, rendering the registration irregular. With no evidence from the 1st defendant, the plaintiff's evidence was uncontroverted.

p. 3

Legal principles established

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  • No civil proceedings concerning an interest in land in an adjudication section may be instituted or entertained until the adjudication register is final, except with the written consent of the adjudication officer.
  • Where a party fails to call evidence in support of its case, its pleadings remain mere statements of fact and the opposing party's evidence stands uncontroverted.

Court orders

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  1. 1.Judgment entered for the plaintiff against the defendants jointly and severally as prayed for in the re-amended plaint
  2. 2.Costs of the suit to be borne by the 2nd, 3rd and 4th defendants

Authorities

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Legislation

  • Land Adjudication ActSections 29 and 30(1)
  • Government Proceedings ActSection 13A
Jurisdiction invoked
Original civil suit under the Land Adjudication Act (Cap 284), with written consent of the Land Adjudication Officer under Section 30(1)

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, "Samuel Njuguna Gitaka v Registrar of Lands Kwale & 3 others [2021] KEELC 4567 (KLR)", Case Analysis (2021). Not stated in the judgment (suit by plaint dated 25th October 2010, amended 18th July 2011 and re-amended 7th July 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4567/eng@2021-01-19

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