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Court of AppealDismissedCivil Appeal 47 of 2014· [2017] KECA 769 (KLR)

Gitson Energy Limited v Francis Chachu Ganya & 6 others

Court of Appeal
24 February 2017
19,403 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~78 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Gitson Energy appealed a High Court judicial review decision (Odunga, J.) quashing Gazette Notice No. 13135 of 11th September 2012, by which the Commissioner of Lands set apart 60,705 hectares of trust land in Bubisa, Marsabit, for the company's wind energy project. The Court of Appeal (Githinji, Okwengu and Kantai, JJA) dismissed the appeal in a judgment with two concurring opinions. The Court held the learned judge erred in applying section 118 of the repealed Constitution and section 7 of the Trust Land Act instead of section 117 and section 13, and erred in characterising the land as public land under Article 62; the land was unregistered community land under Article 63. Nonetheless, the Commissioner's agency powers under section 53 of the Trust Land Act ceased when the National Land Commission was established, so issuing the notice thereafter was ultra vires and unconstitutional. The Gazette Notice, being the final step of the setting apart process with the legal consequence of extinguishing community rights, amounted to a transfer of assets prohibited by section 35(1) of the Transition to Devolved Government Act during the transition period. Okwengu and Kantai, JJA further found no compliance with the mandatory procedure in section 13(2) of the Trust Land Act, including Divisional Board involvement and structured public participation, rendering the process procedurally improper. Although several grounds of appeal succeeded, the High Court decision, being a single whole, was upheld. Each party was ordered to bear its own costs, reflecting the public importance of clarifying the constitutional transition provisions.

Key legal issues

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01

Whether the Gazette Notice was issued under section 7 or section 13 of the Trust Land Act

Holding

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).

Reasoning

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.

p. 7
02

Whether the Commissioner of Lands usurped the powers of the National Land Commission

Holding

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.

Reasoning

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.

p. 9
03

Whether the setting apart fell within the section 35(1) moratorium of the Transition to Devolved Government Act

Holding

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.

Reasoning

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.

p. 10
04

Whether the setting apart process complied with the mandatory procedure including public participation

Holding

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.

Reasoning

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.

p. 17

Legal principles established

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  • 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

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  1. 1.Appeal dismissed
  2. 2.Every party to the appeal to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(4), 61, 62, 63, 67; Fifth Schedule; Sixth Schedule (Articles 2(1), 2(4), 7, 18)
  • Repealed Constitution of Kenya (1969)Sections 115(1), 117, 118
  • Trust Land Act (Cap 288)Sections 5, 7, 9, 13, 53; Part IV
  • National Land Commission Act, 2012Section 5(2)
  • Transition to Devolved Government Act, 2012Sections 2, 35, 37(1)
  • Interpretation and General Provisions ActSections 23, 69
  • Evidence ActSection 85
  • Community Land Act, No. 27 of 2016Sections 6, 8 (Schedule), 15, 45, 46; Schedule
  • Land Act, 2012Section 162(1)
  • Land Laws Amendment Act, No. 28 of 2016Section 37
  • Fair Administrative Actions Act, No. 4 of 2015Section 5
  • Court of Appeal RulesRule 92
  • Local Government Act

Cases cited (12)

  • Mbogo and Another v Shah
    [1968] 1EA 93

    Appellate court will not interfere with exercise of discretion unless decision is clearly wrong

  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 135

    Judicial discretion has to be exercised on the basis of law and evidence

  • Mohammed Fugicha vs Methodist Church in Kenya (suing through its registered trustees) and 3 others
    [2016] eKLR

    First appeal by re-hearing; latitude to depart from findings based on affidavits and submissions

  • Republic vs Kenya Revenue Authority Exparte Yaya Towers Ltd
    [2008] eKLR

    Judicial review is concerned with the decision making process

  • Municipal Council of Mombasa v Republic and Umoja Consultants Limited
    CA No. 185 of 2001 (UR)

    Judicial review concerns the decision-making process, not the merits

  • Kenya National Examinations Council vs. Republic Ex Parte Geoffrey Gathenji Njoroge

    Scope of orders of prohibition against inferior tribunals

  • Republic v Minister for Finance & Another ex-parte Anyang Nyongo & 2 Others
    [2007] eKLR

    Public participation in issues affecting the public advances public interest

  • In the matter of the National Land Commission
    [2015] eKLR

    Community land under Article 63 is distinct from public land; Parliament should amend section 5(2)(e) of the NLC Act

  • Ephantus Mwangi & Another v Wambugu
    [1983] 2KCA 100

    Principles for interfering with discretion of a trial judge

  • Sumaur & Another v Ahed Industries Limited
    CA No. 203 of 2002

    Principles for interfering with discretion of a trial judge

  • Damiano Migwi v Timothy Maina Wairugi
    [2009] eKLR

    First appeal is in the nature of a retrial; court must reappraise evidence

  • Selle v Associated Motor Boat Company
    [1968] EA 123

    First appeal by way of retrial; court not bound by judge's findings of fact

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

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.