Gitson Energy Limited v Francis Chachu Ganya & 6 others
The bottom line
#Kenya's Court of Appeal confirmed that 60,000+ hectares of Marsabit community land cannot be allocated to an investor without following the law's mandatory process.
What this practically means
#Executive summary
#Key legal issues
#Whether the Gazette Notice was issued under section 7 or section 13 of the Trust Land Act
The learned judge erred: the land was set apart under section 117 of the repealed Constitution and section 13 of the Trust Land Act, and the Gazette Notice was issued by the Commissioner as agent of the council in compliance with section 13(3), not section 7(4).
Section 117 of the repealed Constitution empowered a council to set apart trust land for private use likely to benefit residents, implemented through section 13 of the Trust Land Act. Section 118 and section 7 applied only to setting apart land for Government purposes at the President's instance. The history and tenor of the notices showed the land was being set apart for Gitson Energy, a private company, so the judge's finding that the notice should have been issued by the council was patently erroneous.
Whether the Commissioner of Lands usurped the powers of the National Land Commission
The land was community land, not public land; the judge erred in applying Article 62, but his reasoning applied equally to trust and unregistered community land. The Commissioner's agency powers ceased when the National Land Commission was established on 2nd May 2012, so issuing the notice afterwards was ultra vires and unconstitutional.
Article 2(1) and 2(4) of the Sixth Schedule suspended Article 62(2) and (3) until the National Land Commission was established, but there is no identical suspension for trust and unregistered community land, which section 5(2)(e) of the National Land Commission Act vested in the Commission. Since the Constitution prohibited disposal of community land except under legislation yet to be enacted, the Commissioner's continuation of the process was ultra vires and in contravention of the Constitution; accrued rights were preserved by section 46 of the Community Land Act.
Whether the setting apart fell within the section 35(1) moratorium of the Transition to Devolved Government Act
Yes. The Gazette Notice was the final step of the setting apart process, had legal consequences including extinguishment of community rights, and amounted to a transfer of the trust land within the transition period, contravening the moratorium.
By section 117(2) of the repealed Constitution, setting apart extinguished previous customary rights, and the gazette notice was prima facie evidence of the setting apart. The notice was dated and published after the Act commenced on 9th March 2012 and within the transition period, so its clear intention to lead to transfer of the council's asset was prohibited by section 35(1). The judge's construction of section 35(1) was correct.
Whether the setting apart process complied with the mandatory procedure including public participation
No. There was no evidence of notification of the Divisional Board, no formal Divisional Board meeting, and the community meeting minutes were unsigned; the process was procedurally improper, justifying certiorari.
Section 13(2) of the Trust Land Act prescribed mandatory sequential stages: notification of the Divisional Board, notice to the public, recording of representations, and council resolution. The only record of public involvement was a meeting of 12th February 2008 attended by 43 people whose minutes were unsigned, and no committee or Divisional Board recommendations were exhibited. This was a review of the decision-making process, not a merits review, and the flaw vitiated the Gazette Notice.
Legal principles established
#- Unregistered trust land vested in a county council under the repealed Constitution became unregistered community land under Article 63 of the Constitution of Kenya, 2010, held in trust by county governments, and is not public land under Article 62.
- The Commissioner of Lands' power to act as agent of a county council in issuing a gazette notice under section 13(3) of the Trust Land Act ceased when the National Land Commission was established; continuing the setting apart process thereafter was ultra vires and contrary to the Constitution.
- A gazette notice setting apart trust land after council approval is the final step of the statutory process and constitutes a transfer of the land, caught by the moratorium in section 35(1) of the Transition to Devolved Government Act.
- Setting apart trust land requires strict compliance with the mandatory statutory procedure in section 13(2) of the Trust Land Act, including Divisional Board involvement and structured public participation; general meetings do not suffice.
Court orders
#- 1.Appeal dismissed
- 2.Every party to the appeal to bear its own costs
- On appeal from
- High Court of Kenya at Nairobi – Milimani
- H.C. Misc. Application No. 374 of 2012
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (appellate jurisdiction over High Court judicial review decision)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mulama (Suing as the legal representative of the Late Lawrence Mulama Itolondo) v Chairperson and the Secretary, Board of Management Amalemba Primary School (Both being seud on behalf of the School Committee, Amalemba Primary School) & 2 others (Environment and Land Case 339 of 2014) [2026] KEELC 1727 (KLR)[2026] KEELC 1727 (KLR)18 Mar 2026applied
- Gitson Energy Ltd v Cabinet Secretary, National Treasury & 5 Others[2019] KEHC 99 (KLR)30 Sept 2019
Cite this brief
#Cite this brief
Caselaw, "Gitson Energy Limited v Francis Chachu Ganya & 6 others", Case Analysis (2017). Civil Appeal 47 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/769/eng@2017-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.