https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1169

Korinko & 2 others v Nkoliai & 12 others (Civil Appeal E044 of 2021) [2026] KECA 1169 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1169 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Appeal E044 of 2021 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA June 12, 2026 Between Peter Tomito Korinko 1st Appellant Joseph O. Ketere 2nd Appellant Michael Kimusua 3rd Appellant and Korinko N. Nkoliai 1st Respondent Jonathan K. Ketere 2nd Respondent Benard Ketere 3rd Respondent Stephene M. Olultulet 4th Respondent David Kirionki 5th Respondent Samson Limpai 6th Respondent Samson Kalamayo 7th Respondent Ole Nanyokie Kitiapi 8th Respondent Leshan Kukuu 9th Respondent Oleleboi Kaikai 10th Respondent Olomismis Group Ranch 11th Respondent The District Land Registrar, Transmara 12th Respondent National Land Commission 13th Respondent (Being an aappeal from the Judgment and decree of the Environment and Land Court of Kenya at Kisii (Mutungi, J) dated 5th October, 2018 in Page 2 of 24 ELC Case No. 429 of 2013 Environment and Land Case 249 of 2013 ) Judgment 1.Peter Tomito Korinko, Joseph O. Ketere and Michael Kimusua, (the appellants), filed a representative suit on their own behalf and that of other members of Olomismis Group Ranch (the 11th respondent), an incorporated group ranch under the Land (Group Representatives) Act, (the Act) and the registered proprietor of land parcel LR No. Transmara/Olomismis/1. 2.The appellants sued the 1st to the 10th respondents, officials of the 11th respondent; the District Land Registrar, Transmara, the 12th respondent, and the National Land commission, the 13th respondent, claiming that the respondents had acted in violation of the law and resolutions by members of the 11th respondent on the subdivision and allocation of the group ranch land; allocated land contrary to members’ resolutions, including to none members and sought a declaration that the survey, subdivision, allocation or alienation, processing and issuance of titles that was being carried out or already carried out by the 1st to the 11th defendant was illegal, flawed unfair and unlawful and was therefore null and void and that fresh adjudication, survey, subdivision, allocation and issuance of titles be carried out in a transparent, fair, legal and open manner. 3.The appellants sought an alternative order that the 13th respondent hold an enquiry into the adjudication of the land and monitor any subsequent survey, subdivision, and adjudication and ensure equitable and fair subdivision and allocation of land to bonafide members, their legal representatives or beneficiaries. The appellants also sought mandatory injunction orders which were in effect, similar to the declarations they were seeking. 4.The 1st-6th, 9th and 11th respondents filed a joint statement of defence denying the appellants’ claims that they acted contrary to the directions given in the annual general meetings, asserted that the 11th respondent’s general meetings were convened regularly to update the members on the process of survey, subdivision and allocation of land to the members and the subdivision of the land was carried out lawfully and in a transparent manner, members who sold portions of their land had their respective parcels subdivided and purchasers allocated their portions in accordance with the terms of their agreements, none members were not allocated land except those who had purchased land from members and had valid sale agreements.The respondents further contended that the court lacked jurisdiction by reason of the provisions of the Act, the suit was premature, did not disclose a reasonable cause of action against them and the appellants were non-suited 5.The suit was heard before the Environment and Land Court, Kisii (Mutungi, J.) (the trial court) through viva voce evidence after which the trial court identified 4 issues for determination, namely; whether: the appellants had locus standi to institute a representative suit, the appellants had exhausted the dispute resolution mechanism or the court had the jurisdiction to sustain a representative suit; the appellants’ disclosed a reasonable cause of action against the respondents, whether the appellants had proved their case on a balance of probabilities and whether they were entitled to the reliefs sought. 6.On the first issue, the trial court held that there was no evidence that the persons who signed giving the appellants authority to sue were members of the 11th respondent and the appellants did not prove that they had authority to institute a representative suit on behalf of members of the group ranch. The trial court held however that as members of the 11th respondent, the appellants were entitled to prosecute the suit on their own behalf. 7.On jurisdiction, the trial court held that the appellants had not exhausted the dispute resolution mechanisms provided for in the constitution of the group ranch to requisition for a general meeting since their (appellants’) claims were about the running of the affairs of the group. The court did not therefore have jurisdiction to hear the suit. 8.Regarding subdivisions of the land into more parcels of land and the varied sizes of either more or less than the 60 acres approved by members and allocation of land to nonmembers, the trial court held that the group representatives had power under section 8(2) of the Act to make decisions for the benefit of all members provided there was consultation. The appellants did not prove their allegations and failed to demonstrate a reasonable cause of action. The suit was accordingly dismissed. 9.Dissatisfied, the appellants filed this appeal and raised 7 grounds which can be summarized as follows; the learned judge erred in; holding that the subdivision of the land creating 1699 was lawful yet the Land Control Board consent was for 380 parcels thereby disregarded mandatory provisions of sections 6 and 8 of the Land Control Act; upholding use of the area list and mutation form given to the Land Registrar and registered on 13th May 2013 to process title deeds; not evaluating the evidence on record showing that the 11th respondent did not call meetings for over 15 years and therefore had failed to follow due process in violation of the Act. 10.When this appeal came for plenary hearing on 22nd April 2026, learned counsel Mr. Mukoya appeared for the appellant while learned counsel Mr. Mulisa was present for the 1st to 6th, 9th and 11th respondents. There was no representation for the 7th, 8th, 10th, 12th and 13th respondents though they had been duly served with a hearing notice. For purposes of this appeal, the 1st to 6th and 9th, 10th and 11th respondents shall herein after be referred to as the respondents. 11.Learned counsel Mr. Mukoya, relied on the appellants’ written submissions dated 26th February 26 which he briefly highlighted. The appellants’ main arguments were that the Land Control Board consent was not validly obtained. The appellants argued that the consent obtained was for 380 parcels and therefore could not be used to register 1699 without the respondents first seeking and obtaining authority from members to increase the number of parcels, which rendered the process unlawful. 12.The appellants argued that the survey, production and registration of the mutation forms and issuance of title deeds was done contrary to the consent, the appellants faulted the trial court for holding that the land control board consent was deemed amended to reflect the subdivisions in the mutation forms eventually registered by the Land Registrar, and being agricultural land, any sale of land by members should have been subject to the normal process of obtaining consents from the Land Control Board. 13.The appellants also argued that nonmembers were allocated land without members’ approval and some members got more acres while others got less acres than had been agreed. The respondents were blamed for arrogating to themselves power to include persons not in the original list of members rendering the entire exercise invalid. The appellant faulted the trial court for sanctioning the respondents’ action of transferring land without appropriate consents from the Land Control Board. 14.The appellants asserted that the respondents were subject the constitution of the group ranch and the Act which required holding of general meetings every year and could not depose of land without approval from the Registrar of Group Representatives and all the group representatives. They faulted the trial court for not considering their evidence on the respondents’ failure to call meetings for more than 15 years to brief members on the activities of the group ranch, including on the subdivision and allocation of the land. 15.The appellants submitted that the trial court failed to ensure that due process was followed by allowing the respondents to abuse their authority against uneducated, poor, ill-informed and vulnerable members. As a consequence, the appellants argued, survey plans were approved which the Land Registrar used to open registers for new titles thereby giving members unequal parcels. The appellants relied on several decisions, including the Supreme Court decision in John Mbugua Gitao v Simon Parkoyiet Mokare & 4 others (Petition No 9 of 2020) on the rights of members under the Land Group Representatives Act. 16.Mr. Mulisa, learned counsel for the respondents, also relied on the respondents’ written submissions dated 12th September 2025 which he briefly highlighted. The gist of the respondents’ submissions, was that the issue of the Land Control Board consent did not arise before the trial court and therefore cannot be raised on appeal. The respondents relied on the decision of this Court in Charles Barake Gesora v Josephine Kemunto Gesora (Civil Appeal 32 of 2017) for the position that an issue having not been raised and addressed in the High Court, cannot be raised on appeal. 17.The respondents maintained that the appellants did not exhaust the available mechanisms for resolving disputes under the constitution of the group ranch rendering the suit premature, the appellants did not have authority to institute a representative suit since some of those whose names were included in the authority were either dead or disowned their signatures and the appellant did not establish a reasonable cause of action. 18.Regarding the Land Control Board consent, the respondents argued that the consent obtained on 9th December 1993 for subdivision of the land to original 380 members did not state that the land had to be subdivided into 380 parcels only, the surveyor subdivided the land, obtained a certificate of compliance and prepared a mutation which was registered by the Land Registrar. The respondents maintained that the general meeting of 1993 resolved to add new members, acceptees who applied to be members and the Ilkabongi age group were to be allocated land while those who purchased land from members had to get portions of land they had purchased. According to the respondents, the appellants admitted that they got their title deeds. The trial court properly concluded that there was no wrongdoing on the part of the respondents. 19.The respondents supported the decision of the trial court that failure to call meetings or acting contrary to the constitution of the group ranch fell under execution of the mandate of the group representatives, the constitution provided on how the appellants could have addressed that issue and the appellants were bound to follow the procedure for raising their complaints for resolution. They took the position that failure to exhaust the available dispute mechanism rendered their suit premature and unsustainable. They relied on the decision in The Speaker of the National Assembly v James Njenga Karume [1992] eKLR in which it was held that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. 20.The respondents maintained that they acted lawfully; members got their titles and those who were yet to get titles, their names and parcel numbers were with the District Land Registrar. They urged that this appeal be dismissed. 21.This being a first appeal, our duty as the first appellate court, is to reconsider, reevaluate and reassess the evidence afresh and come to our own conclusions on that evidence, bearing in mind, however, that we did not have the advantage of seeing and hearing the witnesses testify and give due allowance for that. (See Selle and Another v Associated Motor Boat Company Ltd & Others [1968] 1.E.A 123). 22.We have considered submissions made on behalf of the parties in this appeal, reevaluated, reconsidered and reanalyzed the evidence afresh in order to make our independent conclusions on both points of law and fact.This appeal turns on the following issues; whether the process of subdivision was lawful; whether the trial court properly upheld the area list and whether the trial court properly evaluated evidence on record. Before embarking on this exercise, a brief background is important. 23.The 11th respondent, was the registered proprietor of LR No. Transmara/Olomismis/1, measuring approximately 9640 hectares. Pursuant to a members’ resolution passed in 1993, it was agreed that the group ranch be dissolved, the land be subdivided and allocated to members. The Registrar of Group Representatives/ Director of Land adjudication and Settlement approved the resolution on 19th October 1993. Officials of the 11th respondent were directed to apply for consent from Narok Land Control Board for purposes of subdividing the land among registered members as they wished; officials were directed to remain in office to sign necessary documents until the subdivision process was over and ensure that every registered member was allocated an individual parcel and given a title deed. 24.In a follow up meeting held on 18th October 2008, it was resolved that each member would get 60 acres of land and a commercial plot, the Ilkabongi age group would get 10 acres each and acceptees would also get 10 acres each. A surveyor was commissioned on 15th June 2009, surveyed the land, prepared a mutation for and had it registered by the District Land Registrar on 13th May 2013. Members were allocated land and the process was still on going at the time of filing the suit before the trial court. 25.The appellants took issue with the process of subdivision and allocation of land to members claiming that the process was not carried out regularly and lawfully to the detriment and prejudice of members, the respondents did not exercise their mandate in a transparent, fair and open manner; did not abide by resolutions passed by members; allocated land to non members and some members got bigger parcels than others without explanation. 26.On the first issue, whether the process of subdivision was lawful, the appellants argued that the Land Control Board consent was not validly obtained and that the consent obtained was for 380 parcels but was instead subdivided into1699 parcels rendering the process unlawful. It was the appellants’ case, that the survey, subdivision, production and registration of the mutation form and subsequent issuance of title deed did not comply with the consent given by the Land Control Board. The respondents maintained that although the consent was for 380 parcels, it did not state that the land could only be subdivided into 380 parcels. 27.The issue of the consent was raised before the trial court but that trial court held that the consent was deemed amended to reflect the subdivisions in the mutation form eventually registered by the Land Registrar. 28.We have considered the appellants’ arguments on this issue and the evidence on record. The resolution to subdivide the land was passed in 1993. Thereafter, the respondents applied for consent to dissolve the group ranch from the Registrar of Group Representatives /Director Land Adjudication which was granted. The Registrar directed that every registered member gets land and a title deed and officials of the group ranch to remain in office to sign necessary documents for purposes of subdivision and allocation of land to members. A Surveyor was then engaged to begin the process of subdivision. 29.The meeting of 1993 that resolved to dissolve the group ranch did not determine the number of parcels the land was to be subdivided into. The consent obtained had therefore to reflect the number of parcels the land was tentatively to be subdivided into, explaining why consent was for 380 parcels. It was the meeting of August, 2008 that resolved that each member should get a parcel of land measuring 60 acres and a commercial plot, that the Ilkabongi age group members group get 10 acres each and acceptees 10 acres each. 30.There is also evidence on record that the surveyor was to make provision for public utilities, such as schools, and hospitals. Going by those resolutions, it was obvious that subdivision of the land would result into more than 380 parcels of land notwithstanding that consent to subdivide the land had already been obtained. 31.The respondents had another challenge to contend with.Some members had sold portions of their parcels to other members and nonmembers, a problem the respondents had to resolve so that who purchased land and got thereby increasing the number of parcels. The appellants’ argument that this was agricultural land and any sales of land by members ought to have been subject to the normal process of obtaining consents from the Land Control Board is self-defeating because the appellants themselves had either sold or purchased land and were beneficiaries of the process they were faulting. 32.The respondents’ duty was to ensure that the land was subdivided and members got their due share as had been resolved. The resolutions made in 2008 came after consent had been obtained and the respondents had to adjust and subdivide the land as circumstances demanded. The 1st respondent (DW1) explained why the number of parcels increased beyond 380 which explanation was accepted by the trial court. 33.Upon evaluating evidence on this issue, we, agree with the trial court that the essence of the consent was to facilitate subdivision of the land to settle members. Since subdivision was done after the resolution of 2008 after the number of those getting land had significantly increased, justified increase in the number of parcels. We also agree with the holding of the trial court that:“it was the group representatives who were mandated to determine the number of subdivisions which was dependent on the allottees. The land board consent was consequently deemed amended to reflect the subdivisions that were eventually reflected in the mutation form registered by the Land Registrar on 13th May 2013.” 34.The Respondents were directed to remain in office to sign documents for subdivision and allocation of land as the people empowered to certify and approve the subdivisions. In that respect, consent having been obtained for subdivision of the land to settle members, there would have been no basis for seeking fresh consent. The process of subdivision was lawful and we find no fault with the manner the survey and subdivision of the land was done. 35.On the second, whether the trial court properly upheld the area list, the appellants argued that the trial court erred since the area list which contained people who were not supposed to get land. In essence, the appellant’s case was that nonmembers got land, some members more than 60 acres while others got less than 60 acres contrary resolutions passed by members. 36.The respondents contended that no member got more than 60 acres or less, nonmembers were not allocated land and in cases where a member got more than 60 acres, or a nonmember got land, it was because such a member or nonmember had purchased land from other members and had notified officials for purposes of allocating the additional land purchased and therefore the area list contained names of only those who were entitled to get land, but not strangers 37.We have considered respective parties’ arguments on this issue and perused the record. The meeting of 18th October 2008 resolved on how the land was to be allocated, each member was to get 60 acres of land and one commercial plot, members of Ilkabongi age group were to get 10 acres each while acceptees were also to get 10 acres each. The area list was prepared by the Surveyor on the basis of names given by the officials. The survey plan was approved by the Director of Survey, mutation form was prepared and registered by the Land Registrar. 38.The record, shows the 1st appellant had testified that they got survey records together with the area list which had been lodged with the Land Registrar. The area list contained names of non members who were allocated land while some members had not been allocated land at all, some had been allocated larger parcels and others smaller than 60 acres and that he (the 1st appellant) had been allocated parcel No 535 which was less than 60 acres. During cross examination, the 1st appellant admitted that he was allocated two parcels Nos. 535 and 1524 measuring 53.37 acres and 5.29 acres respectively with a combined size of 58.370 acres and that he sold parcel 1524, that the 2nd and 3rd appellants were also allocated parcels of land commensurate with their entitlement of 60 acres, the 3rd appellant was allocated parcel Nos. 853 and 854 with an aggregate of 163 acres, the 2nd appellant was allocated parcel No. 523 which was less than 60 acres. The 1st appellant was not sure if the 2nd appellant sold part of his land and he did not also know how the 3rd appellant got land in excess of 60 acres. 39.In response to the appellant’s evidence, the 1st respondent testified that some members allocated more than one parcel was because not all members could be allocated 60 acres where they had settled, each member got his entitlement of 60 acres, any variance was due to a member having sold a portion of his land, or due to provision made for access roads and public utility plots, and any difference in size was within acceptable limits. The 1st respondent further explained that the 3rd appellant was allocated parcel Nos. 853 measuring 74.0 acres and 854 measuring 89.0 acres, respectively having purchased more land from members adding to his entitlement of 60 acres. Those members who got less than 60 acres had either sold part of his land or requested that their land be split and allocated to family members (wives or sons) and gave examples of Kuka Olewapiee and Joshua Ole Seroi. 40.The trial court analyzed evidence on the allocation of land which was related to the area list and held that there was no evidence that some members did not get land, other member got more or that nonmembers were allocated land, stating:“[48]On the evidence adduced by the parties, I find the allegations by the plaintiffs largely unproved and unsupported. The plaintiffs have for instance not shown evidence of any person who was allocated land and was neither a member or a purchaser and/or a family member allocated land pursuant to subdivision of family land. The plaintiffs claim that there were members who were allocated less land than 60 acres agreed was equally unsupported and/or proved.” 41.We have reevaluated the evidence on record on this issue and we come to the conclusion that the appellants were not candid before the trial court. First; their claim that some members were not allocated land had no basis because they did not identify any such member. Their allegation that Samuel Ole Makau was not allocated land was controverted with evidence that Ole Makau was allocated parcel No.761 measuring 13.8 acres because he had sold port of his land and had not complained. 42.Second, the 1st appellant’s allegation that he was allocated less than 60 acres was also successfully controverted with clear evidence that he was allocated two parcels of land, 58.278 acres in aggregate and admitted to have sold part of his land. 43.Third, though suing together with the 2nd and 3rd appellants, the 1st appellant, either knew or did not know that the 2nd appellant sold part of his land and the 3rd appellant purchased land from members. In the circumstances, the appellants claim that the trial court improperly upheld the area list lacks merit and fails. 44.On the third and last issue, the appellants faulted the trial court for failing to properly evaluate evidence on record regarding the respondent’s failure to call meetings for more than 15 years to brief members on the activities of the group ranch, including subdivision and allocation of the land, despite the respondents being subject to the constitution of the group ranch and the Act which required holding of annual general meetings. 45.A perusal of the record shows that the trial court addressed all issues the appellants had raised, including allegations that the respondents had not called meeting for more than 15 years to brief members on the subdivision and allocation of land. The trial court concluded that the respondents as officials of the group ranch, acted in accordance with the constitution of the group ranch and the Act, and where they were deemed to be acting outside the constitution or the Act, there were mechanisms for addressing such concerns. The trial court then observed, correctly in our view, as follows:“[40]…In essence the plaintiffs’ complaint was to the effect that the defendants were conducting the affairs of the group in a manner that was oppressive to some of or part of the members. The plaintiffs were therefore under the Constitution of the group obliged to requisition for a general meeting in accordance with the provisions of the Constitution. As the Constitution of the group had made provision as how issues and/or disputes relating to the running of the affairs of the group were to be handled…the procedure and process set out under the group’s Constitution had to be exhausted before the jurisdiction the court could be invoked. 46.Under section 8(2) of the Act the respondents, in consultation with members, had power to make decisions for the benefit of members. In this case, consultation came in the form of the resolutions passed in the meetings of 1993 and 2008. If the appellants felt that the respondents had acted contrary to the constitution of the group ranch, the Act or members resolutions, they were obliged to invoke the mechanism provided for dispute resolution and requisition for a meeting of the group ranch but they did not do so. 47.The Supreme Court has settled the law that where internal dispute resolution mechanisms exist, parties ought to exhaust the available internal administrative remedies or alternative dispute resolution mechanisms before seeking intervention from the courts. (See Albert Chaurembo v Mumba & 7 others v Maurice Munyao & 148 others (petition No. 3 of 2016) [2019] KSC 83 (KLR) (Para 116); Abidha Nicholas v the Attorney General & 7 Others (SC Petition No. E007 of 2023)) 48.The appellants having failed to invoke the dispute resolution mechanism available to them, they could not be heard to complain that the respondents acted in a manner that was against interested of poor, uneducated and vulnerable members. The trial court considered the evidence on record and concluded that the respondents were empowered to oversee, certify, approve subdivisions and ensure that each member got his title, a mandate they lawfully discharged. The trial court properly held that the appellants having not invoked the available mechanism for addressing the issue of holding meetings of the group ranch, the issue was not available for resolution before it, and we agree. 49.This appeal lacks merit and we hereby dismiss it with costs to the 1st to 6th and 9th respondents. DATED AND DELIVERED AT KISUMU THIS 12THDAY OF JUNE, 2026.ASIKE-MAKHANDIA...........................JUDGE OF APPEALE.C. MWITA...........................JUDGE OF APPEALB. ONGAYA...........................JUDGE OF APPEALI certify that this is a true copy of original.SignedDEPUTY REGISTRAR.