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ELCDismissedELC Case of 2017 (Turkana)

Lomatong v Kosiae & another (Environment and Land Case 107 of 2017) [2025] KEELC 5877 (KLR)

Environment and Land Court
23 July 2025
3,885 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that unregistered ancestral land in Turkana belongs to the community, so no individual family member can claim it alone.

What this practically means

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Executive summary

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The Plaintiff, Margaret Nabuin Lomatong, sued the 1st Defendant (her neighbour) and the 2nd Defendant (her son) seeking a declaration that she is the sole owner of 20 hectares of Lomatong family land in Lodwar, an order for their eviction, a permanent injunction, costs and interest. The Defendants filed a statement of defence but called no evidence at the hearing; only the Plaintiff and her witnesses testified. The Plaintiff's evidence was that the land was inherited by her late husband from his parents, that she had lived there since 1965, and that the Defendants had invaded it with intent to sell portions to third parties. The Land Administrator confirmed that land in Turkana County is unregistered, unsurveyed community land held in trust by the County Government, identified through the customary system of 'Eree', and that the suit land was the Eree of the Lomatong family. The court framed a sole issue: whether the Plaintiff's claim was merited. It held that although the Defendants' defence was unsupported by evidence and therefore a mere allegation, the burden of proof remained on the Plaintiff, whose uncontroverted evidence did not automatically entitle her to judgment. Relying on Article 63(2)(d) of the Constitution and Sections 12 and 27(3) of the Community Land Act, the court found the land to be ancestral community land belonging to the Kanamkemer clan through the Lomatong family, incapable of individual ownership pending adjudication. The claim for sole ownership was dismissed, with the party ordered to vacate directed to do so, and each party to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the Plaintiff's claim is merited

Key legal issues

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01

Whether the Plaintiff proved sole ownership of the suit land to the required standard

Holding

The claim failed; the land is community land belonging to the Lomatong family/Kanamkemer clan, not the Plaintiff individually

Reasoning

Although the Defendants filed a defence, they called no evidence, leaving the Plaintiff's evidence uncontroverted. The court held this did not relieve the Plaintiff of the burden of proof under Sections 107 and 108 of the Evidence Act. Her evidence showed the land was unregistered, unsurveyed 'Eree' (ancestral family land), so it vested as community land under Article 63(2)(d) and the Community Land Act, defeating a claim of sole individual ownership.

p. 6
02

Status of the suit land under the constitutional and statutory regime of community land

Holding

The land is ancestral/community land held in trust by the community, incapable of individual title until adjudication

Reasoning

Applying Article 63(2)(d) of the Constitution and Sections 12 and 27(3) of the Community Land Act, the court found the Lomatong 'Eree' to be ancestral land held communally by the Kanamkemer clan. An individual entitlement cannot be superior to community title, so neither the Plaintiff nor the Defendants may claim or sell it privately pending adjudication.

p. 7
03

Effect of the Defendants' failure to adduce evidence

Holding

The defence was a mere allegation that the court could not rely on

Reasoning

The court stated that a pleading unsupported by testimony is nothing more than unsubstantiated allegation. However, the Defendants' default did not shift the burden of proof; the Plaintiff still had to prove her claim on a balance of probabilities, which she failed to do in respect of sole ownership.

p. 6
04

Defendants' right to remain on the land

Holding

The Defendants have no greater communal rights than the Lomatong family and the party ordered to vacate must do so, but the 2nd Defendant may occupy the family portion and cannot sell any part

Reasoning

Since the Defendants adduced no evidence of greater communal rights, and the community has not recognised the land as theirs, they have no right to remain. The 2nd Defendant, being a son of the family, may stay on the family-recognised portion but has no right to sell since the land is communal and individual dealings are void.

p. 7

Legal principles established

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  • No specific individual can claim better rights over community land to the exclusion of the entire community
  • An uncontroverted claim does not automatically succeed; the plaintiff must still meet the standard of proof
  • A statement of defence not supported by evidence remains a mere allegation
  • Dealings with community land by individuals, such as sale or private allocation, are void and illegal

Court orders

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  1. 1.The Plaintiff's case is dismissed
  2. 2.The party ordered to vacate the suit land to do so accordingly
  3. 3.Each party to bear its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to community/ancestral land

Relief refused

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Declaration that the Plaintiff is the sole owner of the suit land

The suit property is communal land and cannot be held privately by an individual

p. 7

Eviction of the Defendants and permanent injunction as prayed

Plaintiff failed to prove individual ownership; the land belongs to the Lomatong family/Kanamkemer clan as community land

p. 8

Costs

Each party to bear its own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot of the foregoing is that the Plaintifi's case is dismissed. But the party ordered to vacate the suit land to do so accordingly. Each party to bear its own costs.
p. 8Final orders - dismissal and vacation
It is this court's view that in line with Article 63(2)(d)(i) and (ii) of the Constitution, the suit property remains community land and no specific individual can claim better rights over community land for and on his/her own behalf to the exclusion of the entire community.
p. 7Community land status of the suit property
It does not follow that if the Plaintifi's evidence is uncontroverted, her claim has to be allowed as prayed.
p. 6Uncontroverted evidence and burden of proof
a pleading that is filed by any party who does not testify to support it remains a mere allegation.
p. 6Effect of defence unsupported by evidence
any dealings by the individuals, such as selling it or allocating it to any other individual as a person or private owners, is void and illegal.
p. 7Voidness of private dealings in community land
For as long as Trust Land remained unadjudicated and unregistered, it belonged to the local tribes, groups, families and individuals of the area
p. 6Unadjudicated trust land belongs to local communities (as cited in Bahola Mkalindi Rhigho)

Issues in the judgment

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minor

Statement of Defence dated '20th March, 2028', a date after the judgment, apparently a typographical error

minor

The two sons' counsel's names and the suit number are not clearly stated; Samuel Eloto Emathe is recorded as testifying as 'PW2' although PW2 was already Ekaato Augustus

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, "Lomatong v Kosiae & another (Environment and Land Case 107 of 2017) [2025] KEELC 5877 (KLR)", Case Analysis (2025). ELC Case of 2017 (Turkana). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5877/eng@2025-07-23

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