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ELCDismissed· [2022] KEELC 323 (KLR)

Tsadza Tsuma & 3 others v Registrar of Lands Kilifi & 3 others [2022] KEELC 323 (KLR)

Environment and Land Court
28 April 2022
2,604 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a family's land claim because they sued over a title that had already been subdivided and no longer existed.

What this practically means

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Executive summary

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The four Plaintiffs, widows and beneficiaries of the estate of the late Tsuma Washe, sued for an order that the Registrar of Titles Kilifi revoke title number Mgumopatsa/Mazeras/545 and register it in their names, contending the land belonged to their deceased husband and that the 2nd and 3rd Defendants fraudulently caused its registration. The 1st Defendant (the Land Registrar, acting through the Attorney General) denied the claim; the 2nd and 3rd Defendants did not participate; and the 4th Defendant (County Government of Kilifi) entered a mediation agreement ceding its interest as registered co-owner to the Plaintiffs. At trial, the Land Registrar testified that the parcel was allocated to the County Council of Kilifi and the 2nd and 3rd Defendants through an adjudication process concluded on 8th March 1993, following objections they lodged under the Land Adjudication Act, Cap 284; the deceased, though alive, lodged no objection. The register was opened on 5th March 2005 and the title was closed on 20th November 2009 upon subdivision into four portions, later further subdivided and transferred to third parties. The court held that the deceased's claim was merely aspirational at his death, that the Plaintiffs sought revocation of a title that had ceased to exist nine years before filing, rendering the suit misconceived and incompetent, and that the County Government could not cede public land under Article 62(2) of the Constitution except through the National Land Commission, while transferees of the subdivisions could not be condemned unheard as they were not parties. The suit was dismissed with no order as to costs.

Key legal issues

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01

Whether the deceased was the registered proprietor of the suit property

Holding

The deceased was never the registered proprietor; his claim remained aspirational as he only wrote a letter seeking allocation and never objected to the adjudication process.

Reasoning

The letter dated 20th April 1993 by the deceased seeking allocation received no response. The land had been allocated through an adjudication process on 8th March 1993 in favour of the County Council of Kilifi and the 2nd and 3rd Defendants following determination of their objections under the Land Adjudication Act, Cap 284. The deceased was alive at the time and lodged no objection within the statutory timelines.

02

Whether the relief sought could be granted given the state of the title

Holding

The relief could not be granted because the title Mgumopatsa/Mazeras/545 had been closed on 20th November 2009 upon subdivision and no longer existed when the suit was filed.

Reasoning

The Green Card produced by the Plaintiffs themselves showed the title was closed and partitioned into four portions (1146-1149) in November 2009, with titles issued to the 4th, 2nd and 3rd Defendants. By the time of filing in December 2018 the title had not existed for nine years, so the prayer for revocation was impossible to grant.

p. 4
03

Whether the mediation agreement with the County Government could confer the suit property on the Plaintiffs

Holding

No. Land held by a County Government is public land under Article 62(2) of the Constitution which only the National Land Commission may dispose of, and the subdivided portions had been transferred to non-parties.

Reasoning

Although the 4th Defendant ceded its interest in the mediation agreement, parcel 1146 remained registered in its name as public land which only the National Land Commission could dispose of. Parcels 1149 and others had been subdivided and transferred to individuals who were not parties to the suit; adverse findings against them would condemn them unheard.

p. 4

Legal principles established

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  • A court cannot grant relief in respect of a title that has been closed and has ceased to exist following subdivision; litigation over a non-existent parcel is misconceived and incompetent.
  • Land held by a County Government is public land under Article 62(2) of the Constitution, administered on its behalf by the National Land Commission, which alone may dispose of it.
  • A court cannot make adverse findings against persons who are not parties to the suit, as that would condemn them unheard.

Court orders

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  1. 1.The Plaintiffs' suit is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Land Adjudication Act, Cap 284 of the Laws of KenyaNot specified
  • Constitution of Kenya, 2010Article 62(2)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes

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, "Tsadza Tsuma & 3 others v Registrar of Lands Kilifi & 3 others [2022] KEELC 323 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/323/eng@2022-04-28

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