Birika & 3 others v Seme & another
The bottom line
#A Kenyan court ruled that community land dispute rules only apply where a community is formally registered, so the case proceeds in the Environment and Land Court.
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 Court has jurisdiction to entertain and determine the proceedings filed on November 21, 2022, given the preliminary objection invoking section 39 of the Community Land Act
Key legal issues
#Whether the dispute concerns members of a registered community so as to engage section 39 of the Community Land Act
The preliminary objection failed because there was no evidence of a registered community; the dispute concerned officials of a Self-Help Group managing proceeds of Moyoi Group Ranch
The court examined sections 7, 9, 10 and 15 of the Community Land Act on registration of communities and management committees. On the pleadings and replying affidavit, no registered community was proved. What existed was a Self-Help Group registered under the Ministry of Gender, Children and Social Development in 2012, whose officials were the 1st to 3rd respondents. The dispute related to alleged election of new officials of that group, not to members of a registered community, so section 39 was inapplicable.
Whether the preliminary objection was a proper pure point of law
The court applied the Mukhisa Biscuit test but resolved the objection on the basis that the factual predicate (a registered community) was absent
The court cited the classic definition that a preliminary objection raises a pure point of law argued on assumed facts, and the Bhamra formulation that it must stem from the pleadings. It then tested the applicant's own factual premise - that the dispute is between members of a registered community - against the record and found that premise unproven, defeating the objection.
Legal principles established
#- Section 39 of the Community Land Act can only be invoked where there is an existence of a registered community
Court orders
#- 1.The preliminary objection dated January 6, 2023 be and is hereby dismissed
- 2.Costs of the preliminary objection will be borne by the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya, 2010 (Environment and Land Court jurisdiction)
Relief refused
#Preliminary objection seeking dismissal of the applicants' application for want of jurisdiction
No proof of a registered community under the Community Land Act, so section 39 internal dispute resolution mechanisms were not triggered
Costs
Costs of the preliminary objection to be borne by the applicant (Michael O. Seme)
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.
It is only when there is an existence of a registered Community that the provisions of section 39 of the Community Land Act, No. 27 of 2016 can be invoked.
Clearly therefore, there is no proof of a registered Community as alleged by the Applicant under the Community Land Act, No. 27 of 2016.
A. The preliminary objection dated January 6, 2023 be and is hereby dismissed. B. Costs of the preliminary objection will be borne by the applicant.
Issues in the judgment
#Party roles are inconsistently used; the 1st respondent is called 'the applicant' and the applicants are called 'respondents'
Mukhisa Biscuit case attributed to 'the court' in the judgment but appears to be counsel's citation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Birika & 3 others v Seme & another", Case Analysis (2023). Environment and Land Miscellaneous Application E008 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16986/eng@2023-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.