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ELCDismissedELC Case No. 59 of 2020· [2022] KEELC 1867 (KLR)

Ben O. Okwendu & 7 others v Kenya Prison Services & 2 others [2022] KEELC 1867 (KLR)

Environment and Land Court
28 January 2022
AOANTONY OMBWAYO
4,400 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kisumu ruled that disputed Nyalenda land reserved as a prison farm since the 1930s is public land that cannot be claimed through land adjudication.

What this practically means

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Executive summary

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Eight plaintiffs, suing representatively for the Nyalenda A, B and Pandpieri communities of Kisumu, sought a permanent injunction against eviction by the Kenya Prison Services, completion of the adjudication process initiated in 1978-1982 over the suit parcel (NYALENDA/PANDPIERI/KISUMU PRISON FARM/BLOCK NO. 10/102 measuring about 64 acres), preparation of a cadastral map, issuance of title deeds, compensation for any compulsory acquisition, and general damages for trespass. They claimed ancestral ownership, contending that about 26 acres were demarcated into 31 parcels during the 1978-1982 adjudication which was unlawfully cancelled by the District Commissioner in 1982 and combined into G.K. Prison Farm Plot No. 1055, and that the National Land Commission irregularly issued the 1st defendant an allotment letter while their historical injustice complaints were pending. The defendants, through a surveyor, demonstrated that the land was reserved as the prison shamba in a 1930 survey plan, gazetted under Legal Notices 721 of 1961 and 751 of 1963, vested in the Government under the Kenya (Designated Land) Regulations 1963, and registered as Government Land. The court found the land was public land vested in the Government, unavailable for adjudication or private allocation, that the plaintiffs had no rights capable of ascertainment, and that no compensation was due since there was no compulsory acquisition. The suit was dismissed with no orders as to costs.

Key legal issues

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01

Classification of the suit land under Article 61 of the Constitution

Holding

The suit land is public land belonging to the Government of Kenya, Department of Prisons, having been reserved as the prison shamba in 1930 and gazetted after independence.

Reasoning

The court examined the 1930 survey plan of the proposed Kisumu boundaries and airport reserve showing the prison shamba, Legal Notice No. 721 of 1961 and No. 751 of 1963 designating prison buildings, and the Kenya (Designated Land) Regulations 1963 vesting the land in the Government. Having vested in the Government, the land was not available for adjudication or private allocation.

p. 5
02

Whether the 1978-1982 adjudication process over the land was lawful and capable of completion

Holding

The purported adjudication was unlawful because the land had already vested in the Government and the plaintiffs had no rights capable of ascertainment.

Reasoning

The court reasoned that adjudication ascertains land rights benefiting individuals, which cannot be done over land reserved for the government. The plaintiffs' reliance on the adjudication record and the alleged 1982 cancellation by the District Commissioner could not confer rights over land that was never available for adjudication.

p. 6
03

Whether the plaintiffs were entitled to compensation for compulsory acquisition

Holding

No compensation was due because the land was never compulsorily acquired; it vested in the Government by legal notice and allocation in the 1930s.

Reasoning

The court found the vesting arose from the 1930 reservation as prison shamba, Legal Notice No. 751 and the Kenya order in council of 1965 (LN 245 of 1963), not from compulsory acquisition under the repealed Land Acquisition Act. Consequently, the statutory compensation machinery was never triggered.

p. 6
04

Effect of the irregular lease obtained by the 1st defendant over the suit property

Holding

Although the lease obtained by the 1st defendant appeared irregular, it did not affect the 1st defendant's rights over the property in dispute.

Reasoning

The court noted that the defendant had demonstrated the mode of alienation through maps and gazette notices, and had gone further to obtain a lease. Despite the irregularity of that lease, the defendant's underlying rights as the entity over whose land the Government had vested the property were unaffected.

p. 6

Legal principles established

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  • Land that has vested in the Government, having been reserved and gazetted for public use, is not available for adjudication or allocation to private individuals.
  • Public land already alienated for a public utility cannot be converted to private land through adjudication to individuals.
  • Land adjudication is a process of ascertaining existing land rights and cannot operate over land reserved for the government.

Court orders

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  1. 1.The plaintiffs' suit is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 61(1) and (2)
  • Constitution of Kenya, 2010Article 62
  • Constitution of Kenya, 2010Article 64
  • Constitution of Kenya, 2010Article 40
  • Land Adjudication Act, Cap 284Sections 23, 26, 29 and 29(3)
  • Registered Land Act, Cap 300 (repealed)General
  • Land Registration Act, 2012Section 6
  • National Land Commission Act, No. 5 of 2012Sections 5(3), 6(2)(a)
  • Land Acquisition Act, Cap 295 (repealed)Sections 3, 4, 6, 8 and 9
  • Government Lands Act, Cap 280Sections 3 and 7
  • Registration of Titles Act, Cap 281General
  • Prisons OrdinanceSection 3
  • Kenya Order in Council 1963Section 11; Kenya (Designated Land) Regulations 1963; section 195(2)
  • Legal Notice No. 721 of 1961General
  • Legal Notice No. 751 of 1963General

Cases cited (1)

  • James Joram Nyaga & Another v the Hon. Attorney General & Another
    [2007] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court jurisdiction over land disputes) - the suit concerns ownership, adjudication and classification of land in Kisumu

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ben O. Okwendu & 7 others v Kenya Prison Services & 2 others [2022] KEELC 1867 (KLR)", Case Analysis (2022). ELC Case No. 59 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1867/eng@2022-01-28

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