Ondiege (Suing as the Personal Representative of the Estate of Cornel Ondiege Ogola) ((Suing as the Personal Representative of the Estate of Cornel Ondiege Ogola)) v Commissioner f Lands & 76 others (Environment and Land Case Civil Suit 823 of 2016) [2024] KEELC 607 (KLR)

The land was unregistered trust land held under customary land tenure. The court traced customary tenure recognition from the repealed Constitution (Section 115(1)) and Section 69 of the Trust Land Act through to Article 63 of the 2010 Constitution and Section 5 of the Land Act, 2012, and applied the Supreme Court's guidance in Isack M'inanga Kiebia on African land relations.

It was common ground the land was set apart via Gazette Notice No. 3400 of 6th November 1976 and the deceased applied for and received an award. He neither appealed under Section 10 of the Trust Land Act nor invoked Section 12 to challenge the setting apart or seek prompt payment. Absent such steps, the acquisition under Section 118 of the repealed Constitution and Sections 7 and 8 of the Trust Land Act stood.

At allocation the property was government land. The 2nd Defendant accepted the allotment, paid the requisite charges and obtained Grant No. I.R 61505 under the Registration of Titles Act. No irregularity, illegality, fraud or breach of trust was proved in the transfer to the 3rd Defendant or the titles of the 4th to 76th Defendants derived from it.

The deceased's cause of action against the 1st Defendant accrued in 1978 when the award was communicated; against the 2nd Defendant it accrued on registration on 17th January 1994, and the suit was filed on 28th May 2008, 14 years later. Fraud was not established to save the claim under Section 26 of the Act, and no mistake-based relief was sought.