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ELCPartially AllowedMalindi ELC Petition No. 7 of 2016 (consolidated with Malindi ELC Case No. 110 of 2016)· [2022] KEELC 790 (KLR)

Stima Investment Co-operative Society Limited v Asili Juano Dido & 2 others [2022] KEELC 790 (KLR)

Environment and Land Court
17 March 2022
4,614 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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The court upheld the co-operative's registered title to Lamu land but confirmed the National Land Commission's power to investigate historical land injustice claims.

What this practically means

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Executive summary

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The Petitioner, an investment co-operative society, petitioned the Environment and Land Court seeking a declaration that it is the bona fide proprietor of L.R No. 29207 in Hindi, Lamu, an injunction against the 1st Respondents (Asili Juano Dido and 17 others), an order of prohibition against the National Land Commission investigating the 1st Respondents' complaint, certiorari quashing the decisions of the NLC and the County Government of Lamu, and costs. The petition was consolidated with Malindi ELC Case No. 110 of 2016, in which 66 claimants sought a declaration that the land was their ancestral/community land and cancellation of the title. The Petitioner bought the land from Ahmed Mohamed Omar for Kshs.107 million and was registered on 18th December 2015. The 1st Respondents claimed long occupation, ancestral graves and cultivation, and alleged the title was fraudulently and corruptly obtained from former trust land. The NLC did not respond; the County Government denied refusing development permission but had done so by letter dated 12th April 2016. The Court held the NLC was properly mandated under Article 67(2)(e) of the Constitution and Section 5(1)(e) of the National Land Commission Act to receive and investigate complaints of historical land injustices, so prohibition was refused. The 1st Respondents' ancestral/community/trust land claim was a 'figment of their own imagination' - unproven and disclaimed by the County Government. Under Sections 24 and 26 of the Land Registration Act, the Petitioner's title was prima facie and indefeasible, and the fraud allegations were unsupported by evidence. The County Government's refusal of development approval was arbitrary and was quashed by certiorari. Judgment: declaration of bona fide proprietorship, permanent injunction against the 1st Respondents, certiorari quashing the County Government's decision of 12th April 2016, and costs against the 1st Respondents and the 3rd Respondent jointly and severally.

Key legal issues

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01

Indefeasibility of the Petitioner's title to L.R No. 29207

Holding

The Petitioner's registered title is valid and indefeasible; the 1st Respondents failed to prove fraud, misrepresentation or illegal acquisition to displace it

Reasoning

The Petitioner was registered as proprietor after transfer from Ahmed Mohamed Omar. Under Sections 24 and 26 of the Land Registration Act, registration vests absolute ownership and the title is prima facie evidence of indefeasible ownership. The 1st Respondents alleged fraud and corruption but produced no evidence; the land had been registered as early as 1998. Their claims were sweeping assertions unsupported by survey or documents.

p. 6
02

Whether the suit land was the 1st Respondents' ancestral, community or trust land

Holding

The claim of ancestral/community/trust land failed for want of proof; the County Government, the alleged trustee, disclaimed any claim to the land

Reasoning

Article 63 defines community land and makes the County Government custodian of unregistered community land. The 1st Respondents made only sweeping statements about long residence and graves; none had surveyed their claimed portions and their representative was unsure of measurements. The County Government itself denied holding the land in trust and raised no objection to development subject to ownership being resolved.

03

Jurisdiction of the National Land Commission to investigate the complaint

Holding

The NLC acted lawfully in receiving and inquiring into the complaint; the prayer for prohibition failed

Reasoning

Under Article 67(2)(e) of the Constitution and Section 5(1)(e) of the National Land Commission Act, the Commission may initiate investigations on its own initiative or on a complaint into present or historical injustices. Under Article 68(c) it may review grants and dispositions of public land. The title exhibited was a Grant over land that was once public land, so the Commission was properly clothed with the mandate to investigate the conversion.

p. 5
04

Lawfulness of the County Government of Lamu's refusal to approve development

Holding

The 3rd Respondent's refusal was arbitrary and without justification, justifying certiorari

Reasoning

The County Government's letter of 12th April 2016 showed it declined approval on the ground of claimants and a complaint on the land, which attempted to legitimise the unsupported claim of the 1st Respondents. The 3rd Respondent called no evidence to justify its position. The decision was held arbitrary and was quashed.

p. 6

Legal principles established

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  • A registered proprietor's certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on proof of fraud or misrepresentation to which the proprietor is party, or that it was acquired illegally, unprocedurally or through a corrupt scheme (Section 26, Land Registration Act)
  • It is incumbent upon a party disputing a registered title to demonstrate that it was acquired illegally or without due process; absent such proof, the title stands
  • The National Land Commission is mandated to receive complaints and investigate present or historical land injustices, on its own initiative or upon a complaint, and to recommend appropriate redress
  • Community land vests in communities identified on the basis of ethnicity, culture or similar community of interest, and unregistered community land is held by the County Government as custodian

Court orders

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  1. 1.A declaration that the Petitioner is the bona fide proprietor of L.R No. 29207 situated in Hindi, Lamu with an indefeasible title against the 1st Respondent and the whole world
  2. 2.A permanent order of injunction restraining the 1st Respondents from claiming title to, transferring, alienating, disposing off, entering into, remaining on, interfering, wasting and/or dealing in any manner whatsoever with L.R No. 29207
  3. 3.An order of certiorari bringing to the Court and quashing the decisions of the 3rd Respondent contained in its letter dated 12th April 2016
  4. 4.Costs of the Petition to be borne jointly and severally by the 1st Respondents and the 3rd Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23, 47, 62(2), 63, 67, 67(2)(e), 68(c)
  • National Land Commission ActSections 5, 5(1)(e), 6
  • Land Registration Act, Act No. 3 of 2012Sections 24, 26(1), 26(2)
  • Co-operative Societies ActNot specified
  • National Land PolicyNot specified
Jurisdiction invoked
Article 165(2) of the Constitution (Environment and Land Court original jurisdiction); Article 23, 47, 63, 67 and 68 of the Constitution; Sections 5 and 6 of the National Land Commission Act, 2012

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, "Stima Investment Co-operative Society Limited v Asili Juano Dido & 2 others [2022] KEELC 790 (KLR)", Case Analysis (2022). Malindi ELC Petition No. 7 of 2016 (consolidated with Malindi ELC Case No. 110 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/790/eng@2022-03-17

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