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High CourtDismissedPetition dated 19th February 2013 (Malindi)· [2013] KEHC 2089 (KLR)

Mwafaka Community Based Organisation & others v District Land Adjudication Officer, Lamu & others (Petition)

High Court of Kenya
4 October 2013
3,383 words in judgment
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The bottom line

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Before suing over land issues, you must first use all the required administrative and appeal processes set out by law.

What this practically means

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Executive summary

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Officials of Mwafaka Community Based Organisation, on behalf of its 410 members and residents of Ras Kitau, Lamu, petitioned the High Court at Malindi seeking declarations that Manda Ras Kitau (approximately 2,500 acres) is land reserved exclusively for them, that the 2009 adjudication process and the gazettement of development plans were unconstitutional, certiorari to quash Gazette Notice No. 11190 and any titles issued over the land, and mandamus compelling a fresh adjudication and demarcation map. The Respondents, through the Attorney General's office, opposed the Petition, asserting lawful action, no demonstrated breach of rights, availability of alternative remedies, and laches. Only the Petitioners filed submissions. The court (Angote J) reviewed the repealed constitutional regime governing Trust Land and Government Land, applying its earlier decision in Bahola Mkalindi v Kaseme. It found the Petition unclear on whether the suit land was Trust Land or Government land. It held that the Land Adjudication Act provides an elaborate mechanism of objections and appeals which the Petitioners did not exhaust - there was no evidence the adjudication register was published or objections raised - so the Petition was prematurely filed. On the development plans, the court found the gazette notification of 17th September 2010 complied with the Physical Planning Act, and any compensation claim should have been pursued under sections 8, 9 and 10 of the Trust Land Act. The Petition was dismissed with no order as to costs.

Key legal issues

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01

Character of the suit land (Trust land vs Government land)

Holding

The Petition did not establish whether the land was Trust Land or Government land before the 2009 adjudication

Reasoning

The court reviewed the repealed constitutional provisions and the Trust Land Act and Government Lands Act regimes, noting the distinction between Trust Land and Government Land, and found the Petition and Supporting Affidavit unclear on the status of the suit property.

p. 5
02

Exhaustion of statutory remedies in land adjudication

Holding

The Petition was prematurely filed because the Petitioners did not use the appeal mechanisms under the Land Adjudication Act

Reasoning

The Land Adjudication Act provides an elaborate mechanism of objections, appeals to the Land Arbitration Board and the Minister's Appeal Committee. The Petitioners produced no evidence that the adjudication register was published or that they raised objections, so the court could not substitute the established bodies.

p. 6
03

Gazettement of development plans

Holding

Publication of the Part Development Plans in the Gazette on 17th September 2010 complied with the Physical Planning Act

Reasoning

Section 16 of the Physical Planning Act permits the Director to prepare regional plans over government, trust or private land, and publication in the Gazette with inspection copies available is the prescribed mode of notification; the Petitioners' own documents showed compliance.

p. 6
04

Compensation claims under the Trust Land Act

Holding

Any claim for compensation for setting apart or planning was not made as required under sections 8, 9 and 10 of the Trust Land Act

Reasoning

A person claiming compensation under section 8 must apply to the District Commissioner under section 9, with appeals under section 10; the Petitioners made no such claim.

p. 7

Legal principles established

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  • A party aggrieved by decisions in a land adjudication process must exhaust the appeal mechanisms under the Land Adjudication Act before moving the High Court; a petition filed without doing so is premature
  • Trust land can only be removed from communal ownership through adjudication and registration or setting apart, with compensation for affected residents
  • Gazette notification of a Part Development Plan in the prescribed manner satisfies the Physical Planning Act regardless of the Petitioners' literacy or access to the Gazette

Court orders

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  1. 1.The Petition dated 19th February 2013 was dismissed with no order as to costs

Authorities

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Legislation

  • Constitution of Kenya (repealed)sections 114, 115, 116, 117, 118
  • Constitution of Kenya, 2010Articles 23, 35, 40, 47, 63, 258
  • Trust Land Act, Cap 288sections 8, 9, 10, 53, 59
  • Land Adjudication Act, Cap 284sections 6, 9, 29(3), 31
  • Government Lands Act, Cap 280general
  • Physical Planning Act, 1996section 16
  • Agriculture Act, Cap 318section 168(3)
  • Local Government Act (repealed)general
  • National Land Commission Act / National Land Act, 2012general
  • Land Act, 2012general
  • Crown Lands Ordinance, 1915replaced by Government Lands Act
  • Kenya Independence Order in Council, 1963Schedule 2, sections 204 and 205
  • Constitution of Kenya (Amendment) Act 1964sections 21, 22, 25, 26

Cases cited (2)

  • Bahola Mkalindi Vs Michael Seth Kaseme & 2 others (Malindi Land Case Number 168 of 2012)

    Distinction between Government Land and Trust Land under the repealed Constitution

  • Chengo Katana Koi vs Protus Evans Masinde (2013) e KLR
    (2013) e KLR

    Settlement schemes may be created by purchase of private land or by utilising unalienated Government Land

Jurisdiction invoked
Constitution of Kenya, 2010 (Articles 23, 35, 40, 47, 63, 258) - constitutional petition

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, "Mwafaka Community Based Organisation & others v District Land Adjudication Officer, Lamu & others (Petition)", Case Analysis (2013). Petition dated 19th February 2013 (Malindi). Source: 

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