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ELCPartially AllowedNot stated in the extract· [2024] KEELC 5145 (KLR)

Njuguna v Gitu & 3 others (Environment & Land Case 13 of 2018) [2024] KEELC 5145 (KLR)

Environment and Land Court
4 July 2024
EME. K. Makori
2,041 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that only the executive can allocate settlement land, dismissing a buyer's claim against a rival allottee.

What this practically means

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Executive summary

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This was an Environment and Land Court suit at Malindi over ownership of parcel Lamu/Lake Kenyatta II/456, created under the Settlement Fund Trustee (SFT) scheme. The plaintiff sued for a permanent injunction, a declaration of ownership, cancellation of a Discharge of Charge issued in the 1st defendant's name, and issuance of a valid title to him. The 1st defendant counterclaimed for the same reliefs in his favour; the 2nd, 3rd and 4th defendants filed a joint defence. The plaintiff testified he bought the parcel from Abbas Shekuna in 2001, received a letter of offer on 26th February 2002, and paid the 10% SFT sum in April 2011. The 1st defendant testified he was allotted the land, paid all monies, and holds a Discharge of Charge. A. H. Mohamed, in-charge of the Lamu Land Adjudication and Settlement office, admitted the office caused confusion by issuing two genuine and competing letters of offer and was negligent in resolving the dispute. The court framed four issues, principally who was procedurally offered the parcel. Relying on Francis Musyoki Makenzi and the Lancashire County Council dicta, it held that allocation of land is an executive function the judiciary cannot usurp. The initial allottee defaulted, the land was repossessed and reallocated to the 1st defendant, the original settler, who paid in full. The plaintiff's claim was dismissed and the counterclaim succeeded as pleaded, with each party bearing its own costs; the plaintiff was left to sue the SFT for alternative land, damages or a refund.

Key legal issues

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01

Who was procedurally offered Lamu/Lake Kenyatta II/456

Holding

The land was legally allocated to the 1st defendant after repossession from the defaulting initial allottee; the plaintiff's remedy lies against the Settlement Funds Trustees.

Reasoning

The initial allottee (Abbas Shekuna) defaulted on the 10% payment within 30 days and unofficially sold his interest to the plaintiff. The land was repossessed and reallocated to the 1st defendant, the original settler on the ground, who paid all dues and holds a Discharge of Charge. The SFT's confusion was administrative, but the repossessing and reallocation followed an elaborate mechanism. The court declined to usurp the executive's allocation role and found no fraud on the 1st defendant.

p. 4

Legal principles established

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  • It is not the role of the judiciary to allocate land between competing claims; allocation falls within the competence of the executive.

Court orders

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  1. 1.The plaintiff's claim is dismissed
  2. 2.The 1st defendant's counterclaim succeeds as pleaded
  3. 3.Each party will bear its own costs

Authorities

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Cases cited (3)

  • Francis Musyoki Makenzi & 61 others v Director of Land Adjudication and Settlement & 2 others; Njiru Cimba & 65 others & 26 others
    [2020] eKLR
  • Lucy Mirigo & 550 Others v Minister for Lands & 4 Others
    [2014] eKLR
  • R –v- Lancashire County Council Ex p Gaver
    (1980) 1 WLR 1024
Jurisdiction invoked
Original civil jurisdiction over land ownership and title disputes (suit for injunction, declaration and issuance of title)

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, "Njuguna v Gitu & 3 others (Environment & Land Case 13 of 2018) [2024] KEELC 5145 (KLR)", Case Analysis (2024). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5145/eng@2024-07-04

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