https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3155

Mwamburi (Suing on his behalf and on behalf of members of Kishamba Location, mengo Location. Mwatate Location and Mgeno Graziers CBO) v Community Land RegistrarTaita Taveta County & 8 others (Environment and Planning Civil Case E001 of 2025) [2026] KEELC 3155 (KLR) (Environment and Land) (25 May 2026) (Ruling) Neutral citation: [2026] KEELC 3155 (KLR) Republic of Kenya In the Environment and Land Court at Voi Environment and Land Environment and Planning Civil Case E001 of 2025 EK Wabwoto, J May 25, 2026 Between Josephat Kimari Mwamburi (Suing on his behalf and on behalf of members of Kishamba Location, mengo Location. Mwatate Location and Mgeno Graziers CBO) Plaintiff and Community Land RegistrarTaita Taveta County 1st Defendant Deputy County Commissioner Mwatate Sub-county 2nd Defendant The Chief Executive County Minister Ministry Of Lands, Physical Planning And Housing Taita Taveta 3rd Defendant Taita Taveta Physical Planning And Land Adjudication Office 4th Defendant The County Government Of Taita Taveta 5th Defendant The Chairperson Land Committee County Assembly Of Taita Taveta 6th Defendant Mr. Okina The Mwatate Sub-county Surveyor 7th Defendant Elijah Mwamidi Mwandoe (sued on his own behalf and on behalf of 181 other members representing the Sagalla Community) 8th Defendant Mgeno Development Organization (through Chard Lewela, Chairman;Mutua Mwangangi, Treasurer;Dominic Nyambu Kitando, Secretary) 9th Defendant Ruling 1.This ruling is in respect to the application dated 29th January 2026 brought by the 8th Defendant/Applicant, Elijah Mwamidi Mwandoe (suing on his own behalf and on behalf of 181 other members representing the Sagalla Community), pursuant to sections 1A, 1B and 63(e) of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules, and Articles 63 and 159 of the Constitution of Kenya, 2010. 2.The Application seeks, in substance, four (4) substantive orders, namely:(a)A declaration that the Survey Report dated 4th December 2025 failed to comply with Order 1(b) of the Court’s Orders issued on 24th September 2025, for failure to establish a boundary between the Sagalla and Dawida ethnic community land within the Mgeno Community Land;(b)A declaration that the said Survey Report failed to comply with the Court’s Orders by erroneously including public utilities within the Mgeno Community Land;(c)An order setting aside the Survey Report dated 4th December 2025 and directing the 7th Defendant to prepare and submit a fresh Survey Report in compliance with Order 1(b) of the Court’s Order of 24th September 2025;(d)An order setting aside the Survey Report dated 4th December 2025 and directing the 7th Defendant to prepare and submit a fresh Survey Report excluding public utilities from the Mgeno Community Land; and(e)Costs of the Application. 3.The Application is supported by the Affidavit of Elijah Mwamidi Mwandoe sworn on 29th January 2026, together with the annextures thereto, namely a copy of the Court Order issued on 24th September 2025 (EMM–1), the impugned Survey Report dated 4th December 2025 (EMM–2), and a copy of the 1929 historical map of the Sagalla and Dawida Native Reserves (EMM–3). 4.The Plaintiff, Josphat Kimari Mwamburi, filed a Replying Affidavit in which he expressly states, at paragraph 3 thereof, that he “does not wish to oppose” the Application. He concedes that the Survey Report does not comply with the Court’s Order of 24th September 2025 in two material respects: first, that the surveyor failed to establish the boundary between the Dawida and Sagalla communities; and secondly, that the surveyor included public utilities within the Mgeno Community Land contrary to the position on the ground. 5.The Plaintiff supports the prayer for a fresh survey but proposes that each party should bear its own costs. He, however, takes issue with the Applicant’s standing, asserting at paragraph 8 of his Replying Affidavit that the Applicant is “not a bonafide member of Mgeno Community but rather... a member of Sagalla Native”. 6.The Application is opposed by the 9th Defendant, Mgeno Development Organization, through the Replying Affidavit of Dominic Nyambu Kitando sworn on 5th May 2026. The opposition is grounded principally on the following propositions:(a)that the Applicant grounds his Application on “unknown land in law”, in particular that the categories “Sagalla Native Reserve” and “Dawida Native Reserve” have no constitutional or statutory existence in Kenya, the only recognized categories of land under Article 61(2) of the Constitution being public land, community land and private land;(b)that the Survey Report ought to be upheld because it correctly observes that Mgeno Community Land is the only unregistered parcel in the vicinity and that the boundary is therefore self-defining by reference to the adjoining demarcated, mapped and registered parcels;(c)that the public utilities sought to be excluded were built by the 9th Defendant, are in its actual occupation, and properly fall within the Mgeno Community Land; and(d)that the Application is vexatious and an abuse of the process of Court. Analysis and Determination 7.Having considered the pleadings, affidavits and annextures filed by the parties, the Court is of the view that the following four issues fall for determination:(1)Whether the Survey Report dated 4th December 2025 complies with the Court’s Order of 24th September 2025, particularly Order 1(b) thereof, on the question of the boundary between the Sagalla and Dawida communities within Mgeno Community Land;(2)Whether the Survey Report dated 4th December 2025 ought to be impugned and set aside on account of having included public utilities within the Mgeno Community Land;(3)Whether, in the result, a fresh survey ought to be ordered; and(4)What orders the Court should make as to costs. 8.At the outset, the Court takes note of a feature of this matter that significantly narrows the contest. The Plaintiff, who initiated this suit and on whose behalf the mediation that produced the Court Order of 24th September 2025 was in part undertaken, has filed a Replying Affidavit conceding the substance of the Application. The Plaintiff agrees, in clear terms, that the Survey Report fails to establish the boundary as required by the mediated settlement, and that it wrongly captures public utilities within the Mgeno Community Land. 9.Although a concession by a party does not relieve the Court of its duty to satisfy itself that the orders sought are properly grounded in law and fact, such a concession is a weighty consideration. Where two communities to a dispute over communal land hold a common position on the propriety of an administrative act done in execution of a Court Order, that convergence of views is entitled to substantial respect, particularly in a matter governed by the principles in Article 159(2)(c) of the Constitution favouring alternative dispute resolution. 10.The Plaintiff raises a question on the bona fides of the Applicant’s membership of the Mgeno Community. The Court does not, with respect, find this objection to be a bar to the present Application. The Applicant, Elijah Mwamidi Mwandoe, is already joined in this suit as the 8th Defendant suing on his own behalf and on behalf of 181 other members representing the Sagalla Community. He was a party to the mediation and to the resulting Court Order of 24th September 2025, the very Order whose execution is now in issue. A party to a Court Order is, a fortiori, entitled to move the Court for directions where, in its view, the Order has not been properly complied with. The standing of the Applicant to bring the present Motion is therefore unimpeachable. Issue 1: Compliance with Order 1(b) of 24th September 2025 – the Boundary Question 11.The Court Order of 24th September 2025 adopted the Mediation Agreement of 22nd August 2025 entered into between the parties. It is common ground on the pleadings that one of the central tasks contemplated by that Order was the conduct of a survey, with the participation of all concerned parties, for purposes of establishing a boundary between the two communities historically associated with the area now constituting Mgeno Community Land, the Sagalla and the Dawida. 12.The 9th Defendant urges, with respectful force, that the historical references to “Sagalla Native Reserve” and “Dawida Native Reserve” employed by the Applicant invoke a category of land tenure that no longer exists in Kenyan law. That submission is, as a matter of pure constitutional taxonomy, correct: Article 61(2) of the Constitution of Kenya, 2010 classifies all land in Kenya as public, community or private; the colonial-era category of “Native Reserves” was abolished and supplanted by the post-independence land tenure framework, culminating in the Community Land Act, 2016 (Act No. 27 of 2016). 13.That observation, however, does not advance the case of the 9th Defendant nearly as far as it appears to suppose. The complaint before the Court is not that the surveyor failed to register or re-create “Native Reserves” as a tenure category. The complaint is that the surveyor was directed, by an Order of this Court adopting the parties’ own Mediation Agreement, to demarcate the parcel of community land falling within the historical area of one community from the parcel falling within the historical area of the other, and that he failed to do so. The historical map of 1929 annexed as EMM–3 is not invoked as a current title document; it is invoked as evidence of the line the parties agreed should guide the demarcation between the two communal sub-areas within Mgeno Community Land. 14.The Constitution and the Community Land Act, 2016 do not preclude two or more communities from holding distinct, demarcated parcels of community land within a larger geographic area. Section 8 of the Community Land Act expressly contemplates the registration of community land in the name of a specific community, and Article 63(2) of the Constitution defines community land as land vested in and held by communities identified on the basis of, inter alia, ethnicity, culture or similar community of interest. Far from being unknown to law, the demarcation sought by the Applicant is precisely the kind of exercise the Act and the Constitution envisage for orderly registration of community land claimed by distinct communities. 15.The 9th Defendant further argues that, because the adjacent parcels are all registered, the boundary of Mgeno Community Land is self evident and the surveyor had nothing further to do. That argument addresses only the external perimeter of Mgeno Community Land. It does not engage with the substance of the parties’ mediated settlement, which was concerned with the internal demarcation between the two communities that the parties agree share historical association with the area. Order 1(b) of the Court’s Order of 24th September 2025 was directed to that internal question, and a Survey Report that does not address it cannot, with respect, be said to comply with it. 16.The Plaintiff, who is himself a party to the Mediation Agreement and a representative of the Mgeno-side interest, candidly concedes at paragraphs 4, 5 and 6 of his Replying Affidavit that the surveyor “did not indeed establish the boundaries between the Dawida Native and Sagalla Native” and that, despite efforts by the parties on the ground, the surveyor “did not capture that in his report”. That concession aligns with the Applicant’s own depositions and is consistent with a reading of the Survey Report itself, which treats the area as a single undifferentiated parcel. 17.On the totality of the material, the Court is satisfied that the Survey Report dated 4th December 2025 does not comply with Order 1(b) of the Court’s Order of 24th September 2025 in respect of the establishment of the internal boundary between the Sagalla and Dawida communal sub-areas within Mgeno Community Land. (iv) Issue 2: The Inclusion of Public Utilities 18.The Applicant deposes, at paragraph 11 of his Supporting Affidavit, that it was expressly agreed during the survey exercise that the establishment, management and oversight of public utilities would fall within the exclusive mandate of the Community Land Management Committee, and that public utilities ought not to have been captured within the Survey Report. The Plaintiff confirms, at paragraphs 5 and 7 of his Replying Affidavit, that the inclusion of the public utilities does not reflect the position on the ground. 19.The 9th Defendant takes the contrary view, contending that the public utilities were built by it and that they are within its actual occupation. That assertion, while not without consequence, does not by itself determine the lawful classification of the parcels on which the utilities sit. Under Article 62 of the Constitution, certain categories of land used for public purposes vest as public land in the national or county government, not as community land. The proper categorisation of any parcel hosting a public utility whether it is, in law, community land subject to public use, or public land in its own right is a matter for the surveyor and the relevant land authorities to resolve on the evidence, in accordance with the law and any agreement reached between the parties. 20.In the present case, however, the Court is not called upon, on this Application, to make a final determination on the legal status of the individual utilities. It is sufficient to observe that:(a)the Applicant and the Plaintiff are agreed that the parties did not contemplate the inclusion of public utilities in the survey of the Mgeno Community Land in the manner reflected in the Survey Report;(b)the question of the legal status of the public utilities, and the appropriate manner of their treatment in any registration of community land, raises substantive issues of constitutional and statutory classification under Articles 62 and 63 of the Constitution and the Community Land Act, 2016 that ought to be properly engaged with by the surveyor and the relevant land authorities; and(c)the Survey Report, as presently drawn, does not demonstrate that this engagement has occurred. 21.In those circumstances, and without making any binding determination as to whether any particular utility ought ultimately to be classified as falling within or without the Mgeno Community Land, the Court is satisfied that the treatment of public utilities in the Survey Report ought to be revisited in the fresh survey directed below. (v) Issue 3: Whether a Fresh Survey Should be Ordered 22.Having found that the Survey Report dated 4th December 2025 does not comply with Order 1(b) of the Court’s Order of 24th September 2025, and that the inclusion of public utilities in the manner reflected in the Report does not reflect the agreement of the parties, it follows almost inexorably that the Report cannot be adopted as it stands. The proper remedy in these circumstances is not the dismissal of the underlying mediated settlement which all parties affirm but the conduct of a corrective or fresh survey that gives effect to the terms of the Court Order. 23.The submission that this Application is vexatious or an abuse of the process of Court cannot, on the material before the Court, be sustained. An application by a party to a Court Order, complaining that an act done in execution of that Order departs from its terms, and supported by the concession of another principal party, is the very opposite of an abuse. It is the legitimate invocation of the Court’s supervisory jurisdiction over its own decrees and orders. (vi) Issue 4: Costs 24.Costs are in the discretion of the Court and ordinarily follow the event. The Plaintiff has, however, prayed that each party bear its own costs, and the matter arises in the context of a mediated settlement between communities who must continue to live alongside one another. The Court is conscious of the admonition in Article 159(2)(c) of the Constitution to promote reconciliation and the peaceful resolution of disputes. In those circumstances, it would not promote the spirit of the proceedings to make a punitive order as to costs. Each party shall bear its own costs of this Application. Disposition 25.For the reasons set out above, the Court makes the following orders:1.It is hereby declared that the Survey Report dated 4th December 2025 fails to comply with Order 1(b) of the Court’s Orders issued on 24th September 2025, in that it does not establish the boundary between the Sagalla and Dawida communal sub-areas within the Mgeno Community Land.2.The Survey Report dated 4th December 2025 is, to that extent, set aside.3.The 7th Defendant, Sub-County Surveyor, is hereby directed to conduct a fresh survey of the Mgeno Community Land and to prepare and file in this Court a fresh Survey Report in strict compliance with Order 1(b) of the Court’s Order of 24th September 2025, which fresh Report shall, in particular, clearly identify, demarcate and separate the parcels associated with the Sagalla and the Dawida communities respectively within the Mgeno Community Land.4.The fresh survey shall be conducted in the presence of, and with the participation of, the representatives of the Sagalla Community, the Dawida Community (including the Plaintiff and the 9th Defendant) and any other party that the surveyor deems necessary, and the parties shall accord the surveyor all necessary cooperation. The cost of the fresh survey shall be born by the Paintiffs, 8th and 9th Defendants.5.The fresh Survey Report shall address separately the treatment of any public utilities falling within the area surveyed, indicating in respect of each such utility (a) its precise location, (b) the party or entity that constructed it, (c) its current user or occupier, and (d) whether, in the surveyor’s professional view supported by reasons, the parcel on which it sits properly falls to be classified as community land or as public land within the meaning of Articles 62 and 63 of the Constitution; and the Court will, upon receipt of the fresh Report, give such further directions on the public utilities as may be appropriate.6.The fresh Survey Report shall be filed and served on all parties within ninety (60) days from the date of this Ruling.7.Each party shall bear its own costs of the Application.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 25TH DAY OF MAY 2026.E. K. WABWOTOJUDGE