Said & 3 others v Bakari; National Land Commission & another (Interested Parties) (Environment and Land Case 221 of 2021) [2025] KEELC 5982 (KLR)
The bottom line
#A Kenyan court confirmed a family's customary ownership of ancestral land after 60 years of occupation, but said formal titles must wait for official land adjudication.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs proved occupation and ownership of the suit property
Yes - the plaintiffs proved long occupation and customary land rights over the suit property on a balance of probabilities
PW1 and PW2 testified the land belonged to their father, in which deceased family members were buried, and that they had lived there for over 60 years. DW1 conceded in cross-examination that the plaintiffs had lived on the land since time immemorial and that the shamba belonged to the plaintiffs' father. The Resettlement Action Plan consent letter and photographic evidence of houses and graves corroborated their occupation. The court found the claim fit within the criteria for customary trust.
Whether the defendant proved his counterclaim
No - the defendant failed to prove occupation of, or any nexus to, the suit property
DW1 gave contradictory evidence, first claiming the land belonged to his grandfather Juma Kufuja and then that the shamba belonged to the plaintiffs' father. He produced no photograph of his own house, no survey or identification of the land he claimed, and did not corroborate his claimed family relationship with any witness. The counterclaim required proof like any separate suit and failed.
Whether the court could direct the Lands Registrar to demarcate, register and issue titles
No - the court cannot exercise the Minister's functions under the Land Adjudication Act absent a declared adjudication area; it instead recommended gazettlement for adjudication
Counsel had argued sections 3 and 30 of the Land Adjudication Act conferred jurisdiction on the ELC to perform the Minister's functions. The court held those provisions anticipate land within a declared adjudication section, and no evidence showed the area was so declared. Ordering registration on a private survey would set a bad precedent; the court instead recommended the CS declare the area an adjudication area.
Whether a permanent injunction should issue
Yes - a permanent injunction was granted limited to protecting the plaintiffs' quiet possession and customary land rights, pending adjudication
Having found the plaintiffs established customary rights, the court held that this was the right stage to grant a permanent injunction which defines the rights of the parties after a hearing on merit, but limited it to the plaintiffs' quiet enjoyment of occupation and customary rights as delineated in the survey report.
Legal principles established
#- Not every claim of a right to land qualifies as a customary trust; the nature of the holding and intention of the parties are essential, and the elements set out in Isack M'Inanga Keibia guide the recognition of customary trusts
- Customary land rights are not conferred by registration and the burden of proving them lies on the party pleading them
- Graves on land are evidence of occupation even if not proof of ownership
Court orders
#- 1.A declaration that the plaintiffs by dint of their customary rights are the owners of the suit property as delineated on the survey map report of E. Kiguru dated 27/06/2017
- 2.A recommendation to the Cabinet Secretary responsible for matters relating to land that the area Shika Adabu/Kibundani be declared and gazetted for adjudication and the plaintiffs' customary rights be taken into consideration when adjudication commences
- 3.A permanent injunction against the 1st defendant restraining him from interfering with the plaintiffs' quiet possession of the suit property or doing any act contrary to the plaintiffs' rights as delineated on the survey map report, pending implementation of the recommendation
- 4.Dismissal of the 1st defendant's Counterclaim
- 5.Each party to bear its own costs of the main suit and counterclaim
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land; plaintiffs invoked sections 3 and 30 of the Land Adjudication Act and article 61 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Said & 3 others v Bakari; National Land Commission & another (Interested Parties) (Environment and Land Case 221 of 2021) [2025] KEELC 5982 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5982/eng@2025-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.