Hiribae v Dhadho & another (Environment and Land Appeal 8 of 2024) [2025] KEELC 3965 (KLR)
The bottom line
#The Environment and Land Court in Malindi confirmed that land allocated only by village elders is community land, and individuals cannot claim private ownership without documentary proof.
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 learned trial magistrate erred in law and in fact by striking out the suit and making his finding
- 2.Whether the trial court failed to evaluate the oral and documentary evidence, including the Ward Administrator's report (PEXH-1)
- 3.Whether the dispute concerned private ownership of community land requiring conversion under the Community Land Act, or was boundary-related
- 4.Whether the Appellant proved exclusive ownership of the suit property
Key legal issues
#Ownership of unregistered, unsurveyed land
Ownership of unregistered land requires proof through a chain of documentary records establishing a good root of title; the Appellant produced no title document
The suit property is unregistered and unsurveyed. Relying on Caroline Awinja Ochieng, the court noted that unregistered titles exist only as chains of documentary records; neither party held any title document, so the Appellant could not prove exclusive ownership.
Character of the suit property as community land
Competing claims based on allocation by village elders evidenced that the land forms part of community land under Article 63
Both parties traced their allocation to village elders/committees. The court held this was sufficient evidence of community land, differing from the trial court which had made the same finding despite noting no direct evidence was adduced.
Evaluation of evidence including the Ward Administrator's report
The report showed a boundary-related dispute and an agreed common boundary, but the Appellant's claim still failed on the pleadings and burden of proof
The court perused the report dated 21/4/2021 and found the dispute boundary-related, with the parties agreeing on a common boundary. However, parties being bound by pleadings, and the claim being unsubstantiated, the court dismissed it while disagreeing with the trial court's reasoning.
Burden of proof
The party asserting ownership bears the legal and evidentiary burden of proving the facts asserted
Applying the authorities cited, whoever desires a court to give judgment dependent on facts he asserts must prove those facts exist; the evidentiary burden lies on the person wishing the court to believe a fact's existence.
Legal principles established
#- A first appellate court must evaluate, re-assess and re-analyze the evidence on record to determine whether the conclusions reached by the trial court were justified
- Where parties each claim allocation of land by village elders, the land constitutes community land under Article 63 of the Constitution
- Parties are bound by their pleadings
Court orders
#- 1.The appeal is entirely dismissed
- 2.Each party shall bear their own costs both in the present appeal and in the court below
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Hola Principal Magistrate's Court (SPM ELC)
- SPM ELC Suit No. E001 of 2020
- Jurisdiction invoked
- First appeal from the magistrates' court to the Environment and Land Court under the ELC Act (appellate jurisdiction over ELC matters from subordinate courts)
Relief refused
#Setting aside the trial court's judgment and decree and substituting it with judgment allowing the Appellant's suit in its entirety
The Appellant's claim was unsubstantiated; nothing proved exclusive ownership of the unsurveyed suit property
Costs of the appeal and of the suit
Each party directed to bear own costs
Costs
Each party shall bear their own costs both in the present appeal and in the court below.
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.
In the foregoing, I find no merit in this appeal. It is entirely dismissed. Each party shall bear their own costs both in the present appeal and in the court below.
This being a first appeal I am conscious of the court's duty and obligation to evaluate, re-assess and re-analyze the evidence on record
Each party claims that they were allocated the suit property by the village elders. This to me is evidence enough that the suit property forms part of community land described under Article 63 of the Constitution.
It was also evident that neither party owned any title document over the suit property. From the evidence presented by the Appellant, there was nothing to prove exclusive ownership of the suit property.
It must however be remembered that parties are bound by their pleadings.
Issues in the judgment
#The trial court simultaneously found the land was community land and admitted no evidence supported that finding
The trial court's quoted judgment orders the suit 'struck out' while this Court's reasoning refers to the claim as dismissed and worthy of dismissal, conflating striking out with dismissal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hiribae v Dhadho & another (Environment and Land Appeal 8 of 2024) [2025] KEELC 3965 (KLR)", Case Analysis (2025). Malindi ELC Appeal (from Hola SPM ELC Suit No. E001 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3965/eng@2025-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.