The Court of Appeal has reinstated a lawsuit filed by community members challenging the alleged fraudulent transfer of ranch land to a public entity.
The 12 appellants, members of the South Samburu Group Ranch, had approached the court claiming their land, originally registered as Kwale/South Samburu/62, was subdivided to create Kwale/South Samburu/64 and then transferred to the Export Processing Zones Authority (EPZA) without proper approval from genuine ranch members.
According to the appellants, EPZA expressed interest in the land as early as 2011 and, following several meetings with individuals who purported to represent the group ranch, a decision was allegedly made to donate 200 acres of community land to EPZA in exchange for industrial development.
The appellants said they did not take part in those meetings and maintained that the 2014 transfer was therefore unlawful.
When they learned of the transfer, they lodged a complaint with the National Land Commission, which initially determined that “EPZA is a public institution. They cannot take over private land without compensation”.
The appellants sought cancellation of the title and rectification of the register under section 80 of the Land Registration Act, pleading particulars of illegality and fraud, including “appropriation of land belonging to the plaintiffs without payment of compensation” and “failure to involve group ranch members in the decision to alienate group ranch land”.
The commission directed that a restriction be placed on the title until all parties reached an agreement.
EPZA maintained that the community had willingly donated 200 acres in 2011 to encourage industrial development. The authority contested the commission’s finding and filed an appeal, but lodged it back with the same commission rather than with the Environment and Land Court.
EPZA further argued that the land was “lawfully donated by the group ranch in recognition of the economic benefits the industrial park would bring” and that the appellants lacked legal capacity to sue because the Land (Group Representatives) Act had been repealed.
The trial court at Kwale upheld EPZA’s preliminary objection, applying the doctrine of exhaustion and ordering the suit stayed pending the commission’s appeal process. However, the Court of Appeal in Mombasa set aside that ruling.
“Given that there was no statute or law that empowered the commission to sit on appeal over its own decision, we find that the trial judge wrongly authorised EPZA’s appeal to be concluded when the commission clearly had no jurisdiction to entertain it,” appellate judges Agnes Murgor, Kibaya Laibuta and Grace Ngenye-Macharia ruled.
“To have done so was tantamount to sanctioning an illegality and perpetuating proceedings before a body that was outside its statutory mandate.”
The Court of Appeal ruled that the National Land Commission has no power to hear appeals against its own rulings.
The court found that the dispute concerned substantive allegations of fraud, unlawful registration and ownership — matters the commission and the Land Acquisition Tribunal could not determine.
“The appeal is merited and is allowed with costs to the appellants,” the court ordered. It set aside the ruling of the Environment and Land Court delivered on October 21, 2022 and remitted the suit for hearing and determination by another judge of the court.
