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ELCDismissedEnvironment & Land Case 187 of 2017· [2022] KEELC 12795 (KLR)

Ekisa ((Suing as the Legal Administrator of the Estate of Santrino Madola (the Administrator of Estate of Sabastiano Ekisa Ngege) v Ekapoloni and Barasa (sued as representatives of the Estate of Barasa Ekapalon Auku) & 3 others; Benjamin Pamba Ekisa & 3 others (Interested Parties)

Environment and Land Court
28 September 2022
AOA. A. Omollo
1,897 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed it can hear land disputes even after adjudication is complete and titles issued, dismissing the defendants' attempt to stop the case.

What this practically means

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Executive summary

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The defendants filed a preliminary objection dated January 20, 2022 arguing that, under sections 26, 29 and 30 of the Land Adjudication Act (Cap 284), the plaintiff's cause of action was time barred and the Environment and Land Court lacked jurisdiction over the suit, which challenged the adjudication and registration of LR South Teso/Angoromo/705 in favour of the 1st defendant. They relied on Kinyamal Ole Tare v Sotua Sakana Muyia and Tobias Achola Osindi & 13 others v Cyprian Otieno Ogola & 6 others, contending that an objection had been determined in the 1st defendant's favour and the statutory timelines under section 29(3) had lapsed. The plaintiff opposed, invoking Article 162(2)(b) of the Constitution, section 80(1) of the Land Registration Act and section 13(1) of the Environment and Land Court Act, and alleging that the 1st defendant, an agent in the adjudication office, fraudulently caused cancellation of the original owner's registration, with the fraud discovered later. The court, A. A. Omollo J, framed a single issue: whether it had jurisdiction. Applying Mukisa Biscuits, it held the objection was not a pure point of law since it required analysis of the adjudication register in a case not yet heard on merits. On the merits of the objection, the court held that sections 29 and 30 apply only where adjudication is ongoing; once the area was fully adjudicated and titles issued, the Act's provisions were ousted and the court's jurisdiction was not excluded. Both cited authorities were distinguished as involving ongoing adjudication. The preliminary objection was dismissed with costs.

Key legal issues

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01

Whether the preliminary objection was a pure point of law

Holding

It was not, because the defendants invited the court to analyse the adjudication register, a document requiring evidential analysis before a suit heard on merits

Reasoning

Applying Mukisa Biscuits, the court held that an objection requiring proof or analysis of documents is not a pure point of law. The defendants' submissions went at length into the meaning and import of the adjudication register annexed by the plaintiff, and the case had not been heard on merits, so the objection failed the test.

p. 3
02

Whether sections 26, 29 and 30 of the Land Adjudication Act oust the court's jurisdiction

Holding

They do not where adjudication is complete and titles issued; the bar applies only to suits concerning land in an adjudication section whose register has not become final

Reasoning

The court distinguished the authorities relied on by the defendants because in both the adjudication process was still ongoing. Section 30 bars institution or entertainment of suits only until the adjudication register becomes final. The present claim alleges fraud in obtaining title during adjudication, a matter for the court, with the plaintiff bearing the burden of proving fraud.

p. 4

Legal principles established

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  • A preliminary objection must be capable of determination without calling or analysing additional evidence
  • Sections 29 and 30 of the Land Adjudication Act apply only where the adjudication process is ongoing; once the area is fully adjudicated and titles issued, the Act's provisions are ousted and the court's jurisdiction is not excluded

Court orders

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  1. 1.The preliminary objection dated January 20, 2022 is dismissed
  2. 2.Costs of the preliminary objection to the plaintiff

Authorities

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Legislation

  • Land Adjudication Act (Cap 284)sections 26, 29, 30
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Land Registration Actsection 80(1)
  • Environment and Land Court Actsection 13(1)

Cases cited (3)

  • Kinyamal Ole Tare v Sotua Sakana Muyia
    (2015) eKLR

    Court cannot usurp adjudication officer's functions; distinguished because adjudication there was still in progress

  • Tobias Achola Osindi & 13 others v Cyprian Otieno Ogola & 6 others
    (2013) eKLR

    Consent under section 30 does not entitle a party to bring adjudication issues to court; distinguished as decided after hearing parties on merits

  • Mukisa Biscuits Co Limited v West End Distributors Ltd
    (1969) EA 696

    Definition of a preliminary objection as a pure point of law not requiring evidence

Jurisdiction invoked
Article 162(2)(b) of the Constitution; section 13(1) of the Environment and Land Court Act; section 80(1) of the Land Registration Act (invoked by the plaintiff)

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, "Ekisa ((Suing as the Legal Administrator of the Estate of Santrino Madola (the Administrator of Estate of Sabastiano Ekisa Ngege) v Ekapoloni and Barasa (sued as representatives of the Estate of Barasa Ekapalon Auku) & 3 others; Benjamin Pamba Ekisa & 3 others (Interested Parties)", Case Analysis (2022). Environment & Land Case 187 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12795/eng@2022-09-28

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