Lomatong v Kosiae & another (Environment and Land Case 107 of 2017) [2025] KEELC 5877 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the Plaintiff's claim is merited
Key legal issues
#Whether the Plaintiff proved sole ownership of the suit land to the required standard
The claim failed; the land is community land belonging to the Lomatong family/Kanamkemer clan, not the Plaintiff individually
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.
Status of the suit land under the constitutional and statutory regime of community land
The land is ancestral/community land held in trust by the community, incapable of individual title until adjudication
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.
Effect of the Defendants' failure to adduce evidence
The defence was a mere allegation that the court could not rely on
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.
Defendants' right to remain on the land
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
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.
Legal principles established
#- 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
#- 1.The Plaintiff's case is dismissed
- 2.The party ordered to vacate the suit land to do so accordingly
- 3.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to community/ancestral land
Relief refused
#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
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
Costs
Each party to bear its own costs
Quotable passages
#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.
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.
It does not follow that if the Plaintifi's evidence is uncontroverted, her claim has to be allowed as prayed.
a pleading that is filed by any party who does not testify to support it remains a mere allegation.
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.
For as long as Trust Land remained unadjudicated and unregistered, it belonged to the local tribes, groups, families and individuals of the area
Issues in the judgment
#Statement of Defence dated '20th March, 2028', a date after the judgment, apparently a typographical error
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.