Ngui & another v County Government of Kitui & 2 others
The bottom line
#The Environment and Land Court in Kitui refused to stop the County Government of Kitui and two occupants from dealing with disputed Endau Market land, because the applicants couldn't prove ownership.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants established a prima facie case with a probability of success
No - their ownership documents were inadequate and recent, while the Respondents were in long occupation
The Applicants relied on a Chief's letter, minutes of a locational leaders' meeting and correspondence commencing from 2020, none of which proved a clear and unmistakable right. The Respondents had been in occupation and use of the land since as early as 1992, and the Applicants themselves were not in occupation. The alleged donation arrangement had not been deponed to or proved, and could only be tested at trial.
Whether the Applicants would suffer irreparable injury not compensable by damages
No - irreparable loss was not shown because prima facie ownership was not established
While the court accepted that trespass, if proved, is grave enough to cause irreparable injury, the Applicants had first to demonstrate prima facie ownership of the suit land. Having failed on the first Giella condition, they could not show irreparable loss flowing from the Respondents' continued occupation.
Where the balance of convenience lies
It tilts against the Applicants because the Respondents are in occupation and the orders would amount to eviction
The Applicants sought to fence land already in the possession, occupation and use of the Respondents and other non-parties, effectively fencing them in. Granting the injunction would entail evicting the Respondents and persons not party to the suit at a preliminary stage, so the balance of convenience favoured refusing the application.
Effect of the pending land adjudication process on the dispute
The suit land lies in a declared adjudication section; rights must be ascertained under the Land Adjudication Act, subject to the section 30 consent
It was common ground that the area was declared an adjudication section by notice dated 12th September 2014 under section 5 of the Land Adjudication Act, and the process had not commenced. The Applicants had obtained the adjudication officer's written consent under section 30 to institute the suit, but their rights remained unascertained pending adjudication.
Legal principles established
#- Upon declaration of an area as an adjudication section, rights and interests in land therein must be ascertained and recorded under the Land Adjudication Act
- County governments hold unregistered community land in trust for the communities for which it is held under Article 62(3) of the Constitution and section 6 of the Community Land Act
Court orders
#- 1.The Notice of Motion dated 2nd February 2023 is dismissed
- 2.Costs of the application awarded to the Respondents
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules; Articles 48 and 50 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngui & another v County Government of Kitui & 2 others", Case Analysis (2023). Environment & Land Case E001 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17470/eng@2023-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.