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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether registration of the suit land in the name of Gusii County Council was procured by fraud
No fraud was proved; the registration as trustee for the community was lawful and in accord with section 23 of the Land Adjudication Act.
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).
Whether the register should be rectified to substitute the community and subdivide the land
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.
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.
Whether the court could grant a benefit-sharing formula for rent paid by Safaricom
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.
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.
Legal principles established
#- 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
#- 1.The suit is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Original civil suit on land ownership and rectification of register before the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.