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Court of AppealDismissedCivil Appeal No. 138 of 2019 (Eld. No. 42 of 2019)· [2020] KECA 89 (KLR)

County Government of Turkana v National Land Commission, Attorney General & Jackson Ekaru Nakusa & 32 others [2020] KECA 89 (KLR)

Court of Appeal
4 December 2020
5,291 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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The Court of Appeal ruled that Kenya's national and county governments must try structured negotiation forums before rushing land disputes to court.

What this practically means

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Executive summary

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This was an appeal by the County Government of Turkana against a ruling of the Environment and Land Court at Kitale (Mwangi Njoroge, J.) which, in consolidated constitutional petitions, declined conservatory orders and stayed the petitions for one year to allow the appellant to pursue alternative dispute resolution under Article 189 of the Constitution and the Inter-Governmental Relations Act, with automatic dismissal if the mechanism was not initiated within 90 days. The dispute concerned two gazette notices of February 2019 in which the National Land Commission, on behalf of national government ministries, declared intention to compulsorily acquire land in Turkana County for the South Lokichar Basin oil project and the LAPSSET Corridor. The appellant argued the land was community land under Article 63, that there was no public participation or consultation, and that the petitions raised substantial questions of law requiring certification and empanelment of an uneven-number bench. A unanimous Court of Appeal dismissed the appeal. It affirmed that jurisdiction is everything and must be resolved first, and held that where a statute prescribes a dispute resolution mechanism - here the inter-governmental mechanisms under Articles 6(2) and 189 and Part V of the Inter-Governmental Relations Act - that mechanism must be exhausted before resort to the courts. The Court found the petitions premature, as the gazette notices were mere declarations of intent, and rejected the argument that fundamental-rights land claims are unsuitable for alternative dispute resolution. Each party was ordered to bear its own costs, the Court noting the respondents had not filed submissions and the dispute was between national and county governments.

Key legal issues

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01

Whether failure to exhaust inter-governmental dispute resolution mechanisms under Article 189 and the Inter-Governmental Relations Act ousts the High Court's jurisdiction over a land acquisition dispute

Holding

Yes - a petition challenging gazette notices of intention to compulsorily acquire land, filed by a county government against national government actions, is premature where the statutory inter-governmental dispute resolution mechanism has not been invoked.

Reasoning

The Court held that gazette notices of intention to acquire land were issued by the national government under the Land Act, and any dispute between national and county governments arising therefrom must first go through the mechanisms in Part V of the Inter-Governmental Relations Act, anchored in Articles 6(2) and 189 of the Constitution. The first position of call is the prescribed statutory procedure; courts cannot usurp alternative dispute resolution mechanisms recognised under Article 159(2)(c).

p. 6
02

Whether the trial Judge erred by determining the jurisdictional preliminary objection before considering certification of substantial questions of law

Holding

No - jurisdiction must be dealt with first before any other issue.

Reasoning

The Court endorsed the trial Judge's approach of addressing the preliminary objection on jurisdiction in limine, guided by Owners of the Motor Vessel 'Lilian S' v Caltex Oil (Kenya) Ltd. Since jurisdiction is everything, the Judge could not be faulted for dealing with it before considering referral to the Chief Justice under Article 165(4).

p. 4
03

Whether disputes involving alleged violations of fundamental rights to land are unsuitable for alternative dispute resolution

Holding

No - compulsory acquisition disputes largely involve factual determinations that must first be established before court jurisdiction is invoked.

Reasoning

The Court rejected the argument that a dispute involving interpretation of fundamental rights to land ownership cannot be resolved through statutory alternative mechanisms. Land acquisition notices involve factual questions such as existence and ownership of land, and only once those preliminaries are established can courts be seized of the matter by an aggrieved party.

p. 6

Legal principles established

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  • Where the Constitution or a statute prescribes a specific dispute resolution mechanism, that mechanism must be strictly followed and exhausted before invoking the court's jurisdiction
  • Disputes between national and county governments, including those arising from compulsory land acquisition, must first be taken through the inter-governmental dispute resolution mechanisms under Article 189 and the Inter-Governmental Relations Act before litigation

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 189(3) and (4)
  • Constitution of KenyaArticle 6(2)
  • Constitution of KenyaArticle 63(3) and (4)
  • Constitution of KenyaArticle 40(3)(b)(ii)
  • Constitution of KenyaArticle 165(3)(a) and (4)
  • Constitution of KenyaArticle 159(2)(c)
  • Inter-Governmental Relations ActSections 30, 31, 32, 33, 34, 35
  • Land ActSections 107, 107(5), 107(8), 112, 162(2), Part VIII
  • Community Land ActSections 8, 9, 15, 21, 22, 38, 48
  • County Governments ActSection 104

Cases cited (11)

  • Isiolo County Assembly Board and Another vs. Principal Secretary Devolution Ministry of Devolution And Planning and Another
    2016 eKLR
  • Council of County Governors vs. Cabinet Secretary Land, Housing & Urban Development & Another
    2017 eKLR
  • Kelly Malenya vs. Attorney General & Others
  • Okiya Omtatah Okoiti & Another vs. CS, Devolution and Planning & 2 Others
    [2017] eKLR
  • Westlands Residential Resort Limited vs. Kawakanja Limited & 2 Others
    [2013] eKLR
  • Commissioner of Lands & Another vs. Coastal Acquaculture Limited
    [1997] eKLR
  • Abok James Odera T/A A.J Odera & Associates vs. John Patrick Machira T/A Machira & Co. Advocates
    [2013] eKLR
  • Owners of the Motor Vessel “Lilian S” vs. Caltex Oil (Kenya) Limited
    [1989] KLR 1
  • Speaker of the National Assembly vs. Karume
    [2008] 1 KLR 425
  • Mutanga Tea & Coffee Company Ltd vs. Shikara Limited & Another
    [2015] eKLR
  • Kones vs. Republic & Another Ex Parte Kimani Wa Nyoike & 4 Others
    (2008) 3 KLR (ER) 296
On appeal from
Environment and Land Court at Kitale
ELC Petition No. 2 of 2019 (as consolidated with Petition No. 3 of 2019)
Jurisdiction invoked
First appeal under Court of Appeal jurisdiction over appeals from the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "County Government of Turkana v National Land Commission, Attorney General & Jackson Ekaru Nakusa & 32 others [2020] KECA 89 (KLR)", Case Analysis (2020). Civil Appeal No. 138 of 2019 (Eld. No. 42 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/89/eng@2020-12-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.