Kithira & 2 others v Attorney General & 5 others (Civil Appeal 47 of 2018) [2024] KECA 1385 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that once trust land is formally 'set apart', all customary claims over it die, so families claiming ancestral rights lost.
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 appellants presented any evidence of wrongdoing by the respondents on the basis of which the court could have issued the orders prayed for in the Petition
Key legal issues
#Whether trust land subjected to the Land Consolidation Act and the Land Adjudication Act is different from setting apart of trust land
Yes; the two are distinct processes. The Land Adjudication Act exists to ascertain and record unrecorded rights in trust land, but once land has been set apart, rights are extinguished and there is nothing to adjudicate.
The court examined Sections 115, 116 and 117 of the former Constitution and Section 13 of the repealed Trust Land Act. Section 116(2) contemplated conversion of trust land through the Land Consolidation Act and Land Adjudication Act, whereas Section 117 governed setting apart, whose effect under Section 117(2) was to extinguish customary rights. The two statutory regimes operate on different premises and are not inconsistent.
Whether the appellants' customary rights over the suit property survived and could be adjudicated after the alleged setting apart
No. By operation of Section 117(2) of the former Constitution, setting apart extinguished all customary rights, interests or benefits, so no rights remained to be ascertained and recorded under the Land Adjudication Act.
The court, relying on its earlier decision in Flemish Investments Limited v Town Council of Mariakani, held that once land is set apart for public purposes, all rights over it are immediately extinguished by operation of the Constitution, before any allotment letters or grants are issued. No allotment letters or grants were shown to have been issued to the appellants.
Whether the trial court erred in failing to find that Section 13(2) of the Trust Land Act was not complied with
The appeal fails; there was no evidence that the appellants' families had initiated a setting-apart process with the County Council before the declaration of the Gatunga Adjudication Section, and the appellants failed to prove wrongdoing.
On a first appeal by way of retrial, the court re-evaluated the evidence and found no proof that a setting-apart process had been initiated by the appellants' families with the County Council of Tharaka before 2005. The critical date was the alleged setting apart in 1990, before the adjudication section was declared, so the Land Adjudication Act had no application.
Legal principles established
#- Once trust land has been set apart under Section 117(2) of the former Constitution, all customary law rights, interests or benefits over it are extinguished, and such land cannot subsequently be subjected to adjudication under the Land Adjudication Act.
- Subjection of trust land to the Land Consolidation Act and the Land Adjudication Act is different from setting apart of trust land; the two regimes operate on land with unascertained rights and land from which rights have been extinguished respectively.
Court orders
#- 1.Appeal dismissed in its entirety
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Chuka
- Petition dated 20th July 2010
- Jurisdiction invoked
- Section 16 of the Environment and Land Court Act, 2011 (first appeal from the ELC)
Relief refused
#Declaration that the respondents breached mandatory constitutional and statutory provisions on setting apart, that the suit property belongs to the appellants, and a permanent injunction against interference
No evidence that the suit property was ever set apart by the County Council's predecessor in a manner the appellants alleged; once set apart under Section 117(2) of the former Constitution, customary rights were extinguished and could not be adjudicated under the Land Adjudication Act
Costs
We make no order as to 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.
Once land has been set apart, it cannot subsequently be the subject to a process of adjudication as there are no longer rights and benefits to ascertain and record over that same land.
By dint of Section 117(2) of the former Constitution, the efiect of setting apart the suit property, even before issuance of the allotment letters or grants was to extinguish all customary law rights, interest or benefits over the suit property.
Ultimately, we have come to the conclusion that this appeal has no merit and it is dismissed in its entirety. We make no order as to costs. It is so ordered.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kithira & 2 others v Attorney General & 5 others (Civil Appeal 47 of 2018) [2024] KECA 1385 (KLR)", Case Analysis (2024). First Appeal from Chuka ELC (Petition dated 20th July 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1385/eng@2024-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.