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ELCDismissedNot stated in the judgment· [2024] KEELC 3741 (KLR)

Makori (Chairman suing on behalf of Ndonyo Grazing Ground Community Based Board Organisation) & another v County Government of Kisii & another (Environment & Land Case 1102 of 2016) [2024] KEELC 3741 (KLR)

Environment and Land Court
24 April 2024
3,534 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kisii court dismissed a community's bid to reclaim grazing land from the county government, ruling the land is community land that must follow the Community Land Act process.

What this practically means

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Executive summary

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Two plaintiffs, suing on behalf of the Ndonyo Grazing Ground Community Based Board Organisation, sought rectification of the register over land parcel South Mugirango/Nyataaro/1202 to substitute the community in place of Gusii County Council, and a declaration that the Council's registration was procured by fraud, alleging that adjudication officers forged the register. The County Government of Kisii defended its title while Safaricom Limited, which leased a small portion for aBase Transceiver Station under an agreement with the County Council, denied any wrongdoing and offered to pay rent to whichever party the court declared owner. The preliminary objection on limitation had earlier been dismissed. The court, noting that the real grievance voiced at trial was a benefit-sharing formula over Safaricom's rent, held that parties are bound by their pleadings and declined to venture into that unpleaded territory. On the fraud claim, the court found no evidence: the plaintiffs produced no adjudication record, and their own testimony showed 32 community members donated the land for grazing, making registration in the Council's name as trustee lawful under section 23 of the Land Adjudication Act, the land remaining trust land. On rectification, the court held the land is now community land under the Community Land Act, 2016, and conversion to private land requires compliance with Regulation 16 of the Community Land Regulations, including approval by two thirds of the community assembly, which was never attempted. The suit was dismissed with no orders as to costs, with liberty to negotiate or file an appropriate suit on benefit sharing.

Key legal issues

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01

Whether registration of the suit land in the name of Gusii County Council was procured by fraud

Holding

No fraud was proved; the registration as trustee for the community was lawful and in accord with section 23 of the Land Adjudication Act.

Reasoning

The plaintiffs alleged misrepresentation and forgery in the adjudication record but produced no adjudication record to demonstrate any forgery. Their own evidence showed that 32 community members donated the land for grazing, so registration in the Council's name to hold in trust effected exactly what the donors intended. Section 23(2)(d) of the Land Adjudication Act provides for such registration, with the land remaining Trust land under section 23(3)(b)(iii).

p. 4
02

Whether the register should be rectified to substitute the community and subdivide the land

Holding

The prayer was refused because the land is community land whose conversion to private land requires compliance with the Community Land Act and Regulations, which was not attempted.

Reasoning

Trust land formerly under the Trust Land Act is now community land under the Community Land Act, 2016. Regulation 16 of the Community Land Regulations prescribes conversion of community land to private land only with approval of at least two thirds of the community assembly, followed by execution and registration of a transfer instrument. No attempt at compliance was shown, so rectification for subdivision could not be granted.

p. 6
03

Whether the court could grant a benefit-sharing formula for rent paid by Safaricom

Holding

No; the claim was not pleaded, and the court restricted itself to the pleadings, while observing the community should negotiate or file an appropriate suit.

Reasoning

Counsel suggested from the bar that plaintiffs wanted a benefit-sharing arrangement with the County Government over rent paid by Safaricom, but the plaint contained no such pleading or prayer. The court held parties are bound by their pleadings. It noted the apparent unfairness of the community not benefiting and left plaintiffs at liberty to pursue an appropriate suit if negotiations fail.

p. 4

Legal principles established

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  • Under section 23 of the Land Adjudication Act, land free of private rights or whose private rights have been relinquished is recorded in the name of the county council and remains Trust land held in trust for the community.
  • Community land may only be converted to private land through the procedure in the Community Land Act and Regulations, requiring approval of at least two thirds of the community assembly.
  • A court is confined to the pleadings and cannot grant relief not pleaded, even where it appears from testimony that a party seeks different redress.

Court orders

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

Authorities

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Legislation

  • Limitation of Actions ActCap 22
  • Land Adjudication ActCap 284, section 23
  • Trust Land ActCap 288 (repealed)
  • Community Land ActAct No. 27 of 2016
  • Community Land RegulationsRegulation 16
  • Land Registration ActCap. 300
Jurisdiction invoked
Original civil suit on land ownership and rectification of register before the Environment and Land Court

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, "Makori (Chairman suing on behalf of Ndonyo Grazing Ground Community Based Board Organisation) & another v County Government of Kisii & another (Environment & Land Case 1102 of 2016) [2024] KEELC 3741 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3741/eng@2024-04-24

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