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ELCDismissedEnvironment & Land Case 245 of 2012· [2023] KEELC 15738 (KLR)

Mwangathia & 2 others v Muriira & 4 others

Environment and Land Court
22 February 2023
CNC.K. Nzili
4,405 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 dismissed a land claim because the land was under adjudication, meaning ownership disputes must go through the adjudication process, not the court.

What this practically means

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Executive summary

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The three plaintiffs sued five defendants claiming to be the lawful owners of 50 acres in the New Kiare/Mituntu Adjudication Section. They alleged that the 1st defendant, initially licensed to cultivate a portion, conspired with the others in March 2012 to enter, lease, sell and mine murram from the land without consent, and sought release of payment cheques and a permanent injunction. The defence maintained the 1st defendant was the true owner, a position confirmed by Njuri Ncheke elders and the provincial administration, and that the 3rd defendant bought the murram after due diligence. The Land Adjudication Officer (DW1) testified the land was Parcel No 286 Ngaremara Adjudication Section, registered in the 1st defendant's name, declared an adjudication section only in March 2016, and recommended termination of the suit under Sections 29-30 of the Land Adjudication Act. The court framed six issues and found the plaintiffs' documents gave conflicting descriptions of the land, that they produced no demarcation book, register or parcel number, and failed to prove the exact locality of the land. It held the land fell under Ngaremara/Gambella Adjudication Section and that, being under adjudication, the court lacked jurisdiction to determine ownership under Sections 29 and 30 of the Land Adjudication Act. It further found the plaintiffs had not proved fraud to the heightened standard required. The suit was dismissed with costs.

Key legal issues

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01

Identification of the suit land

Holding

The plaintiffs failed to prove the exact locality and description of the land allegedly trespassed into, sold or leased out

Reasoning

The plaintiffs' exhibits gave conflicting descriptions of the land - Tigania East District, New Kiare/Mituntu Adjudication Section, Tigania Adjudication Area, Buuri location - while the defence evidence placed it in Ngaremara/Gambella Adjudication Section as Parcel No 286. The plaintiffs produced no demarcation book, register or parcel number proving ownership.

p. 6
02

Jurisdiction over land under adjudication

Holding

The court lacks jurisdiction to determine ownership of land undergoing adjudication under Sections 29 and 30 of the Land Adjudication Act

Reasoning

The land was declared Ngaremara/Gambella Adjudication Section in 2016 during the pendency of the suit. The Land Adjudication Officer testified that disputes over land under adjudication must be processed by the District Land Adjudication and Settlement Officer. The court agreed, relying on Tobias Ochola Osidi.

03

Proof of fraud

Holding

The plaintiffs failed to prove the alleged fraud and illegalities by the defendants

Reasoning

Fraud must be specifically pleaded and proved to a standard higher than the ordinary civil standard. The court adopted the definition of fraud in Black's Law Dictionary as cited in Wambui v Mwangi and the holding in Arithi Highway Developers Ltd v West End Ltd against rewarding deceit.

Legal principles established

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  • The Environment and Land Court lacks jurisdiction to determine ownership or interests in land that is subject to an ongoing adjudication process under the Land Adjudication Act
  • Fraud must be specifically pleaded and proved to a standard higher than the ordinary balance of probabilities

Court orders

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  1. 1.The plaintiffs' suit is dismissed with costs

Authorities

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Legislation

  • Land Adjudication ActSections 29, 30(1)-(3), 10

Cases cited (8)

  • Mutinda Mule vs IEBC
    (2014) eKLR

    Parties are bound by their pleadings and issues flow from the pleadings

  • Tobias Ochola Osidi & 13 Others vs Cyprianus Otieno Ogola & 5 Others
    (2013) eKLR

    Court lacks jurisdiction over ownership disputes on land under adjudication

  • Wambui vs Mwangi & 3 others
    (Civil appeal 465 of 2019) (2021) KECA 144 (KLR)

    Definition of fraud from Black's Law Dictionary and the standard of proof of fraud

  • Arithi Highway Developers Ltd vs West End Ltd
    (2015)

    Court will not succor a crook using forgery or deceit to acquire title

  • Jamila Ebrahim Attanwalla & another vs Hussein Abdulaziz & another
    (2014) eKLR

    Cited by plaintiffs on revocability of a licence

  • Kamau vs Kamau
    (1984) 1 KLR (E & L)

    Cited by plaintiffs: a licence cannot pass interest in land to a third party

  • Elias Ntwiga vs LAO Meru South & 7 others
    (2018) eKLR

    Cited by defendants on adjudication process barring suit

  • Joseph Kiruja Maingi vs Rose Nambura & 2 others
    (2021) eKLR

    Cited by defendants on adjudication process barring suit

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (suit dismissed for want of jurisdiction under Sections 29 & 30 of the Land Adjudication Act)

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, "Mwangathia & 2 others v Muriira & 4 others", Case Analysis (2023). Environment & Land Case 245 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15738/eng@2023-02-22

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