The Environment and Lands Court in Voi has ordered a fresh survey and boundary demarcation between two disputing communities.
Justice Edward Wabwoto set aside a survey report dated December 4, 2024, for failure to establish an internal boundary between Sagalla and Dawida ethnic community land within the Mgeno community land.
“It is hereby declared that the survey report dated December 4, 2025 fails to comply with Order 1(b) of the court orders issued on September 24, 2025, in that it does not establish the boundary between the Sagalla and Dawida communal sub-areas within the Mgeno Community Land,” said Justice Wabwoto.
The judge found that through mediation, the two communities had agreed to demarcate the parcel of community land falling within the historical area of one community from the one within the historical area of the other.
The Sagalla and Dawaida communities residing in Voi, Taita Taveta County, have differed over the internal boundaries and utilities at Mgano community land.
Elijah Mwamburi, a resident of the Sagalla community, said the survey report failed to establish an internal boundary between the Sagalla and Dawida ethnic community land within the Mgeno community land.
Mwamburi who represented 181 residents of Sagalla, said the survey report erroneously included public utilities within the Mgeno Community Land.
However, Mgeno Development Organisation opposed Mwaburi’s call for a fresh survey and said that “Sagalla Native Reserve” and “Dawida Native Reserve” have no constitutional or statutory existence in Kenya.
The organisation, through Dominic Kitando, said that the only recognised categories of land under Article 61(2) of the Constitution are public land, community land and private land.
Kitando said that the survey report ought to be upheld because it correctly observes that the 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.
He further said that the public utilities sought to be excluded in the survey were built by the Mgendo Development Organisation and are in its actual occupation, and properly fall within the Mgeno community land.
Kitando said that Mwandoe’s application is vexatious and an abuse of the court process.
He argued that, because the adjacent parcels are all registered, the boundary of Mgeno community land is self-evident and the surveyor had internal demarcation between the two communities that share a historical association with the area.
Kitando said that already there exists an external perimeter of Mgeno Community Land.
However, Justice Wabwoto adopted the Mediation agreement between the two communities dated August 22, 2025, for the conduct of a survey to establish a boundary between Mgeno Community Land, the Sagalla and the Dawida.
Justice Wabwoto agreed with Kitando that the historical references to “Sagalla Native Reserve” and “Dawida Native Reserve” as employed by Mwandoe invoke a category of land tenure that no longer exists in Kenyan law.
The judge said Article 61(2) of the Constitution classifies all land in Kenya as public, community or private and that 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.
“On the totality of the material, the Court is satisfied that the Survey Report dated December 4, 2025, does not comply with Order 1(b) of the Court’s Order of September 24, 2025, in respect of the establishment of the internal boundary between the Sagalla and Dawida communal sub-areas within Mgeno Community Land,” said Justice Wabwoto.
The judge said that utilities do not, by themselves, determine the lawful classification of the parcels on which the utilities sit.
He said that 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,” said Justice Wabwoto.
