County Government of Turkana v National Land Commission, Attorney General & Jackson Ekaru Nakusa & 32 others [2020] KECA 89 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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.
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).
Whether the trial Judge erred by determining the jurisdictional preliminary objection before considering certification of substantial questions of law
No - jurisdiction must be dealt with first before any other issue.
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).
Whether disputes involving alleged violations of fundamental rights to land are unsuitable for alternative dispute resolution
No - compulsory acquisition disputes largely involve factual determinations that must first be established before court jurisdiction is invoked.
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.
Legal principles established
#- 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
#- 1.Appeal dismissed in its entirety
- 2.Each party to bear its own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.