Tana and Athi Development Authority v National Land Commission & another (Civil Appeal 93 of 2016) [2023] KECA 1207 (KLR)
The bottom line
#Kenya's Court of Appeal restored the Tana River Development Authority's 25,875-hectare land allocation, ruling only 350 hectares were actually trust land.
What this practically means
#Executive summary
#Key legal issues
#Res judicata and sub judice
The petition was neither res judicata nor sub judice. Although the County Government was a respondent in Abdalla Rhora Hibirae, it was not litigating under the same title as in the instant proceedings where it instituted the suit; nor were the issues directly and substantially in issue in the earlier suit.
The court applied the conjunctive elements of res judicata from section 7 of the Civil Procedure Act as set out in IEBC v Maina Kiai and Uhuru Highway Development Ltd. A party sued in earlier proceedings cannot be said to have litigated under the same title when it later institutes proceedings itself. The subject matter of the earlier suit (failure to develop a master plan) differed from the challenge to title in this petition, as illustrated by Dina Management.
Locus standi of a county government in a constitutional petition
The County Government had locus to institute the proceedings as custodian of community land on behalf of its people, even though it could not enforce Bill of Rights protections as its own.
Associating itself with Meru County Government v EACC, the court held state organs can sue inter se to protect constitutionally conferred rights and competencies. County governments are recognised by law as custodians of community land, entitling them to move the court for an interpretation of the Constitution as regards community land and to seek reliefs protecting that trust.
Pleading and proof of constitutional violations (Anarita Karimi Njeru principle)
The trial judge erred by finding on issues not pleaded or proved: compensation was never raised in the petition, and the burden of proving absence of public participation lay on the 1st Respondent, which failed to discharge it.
Reaffirming Mumo Matemu and Anarita Karimi Njeru, the court held a petition must state the Articles violated and their relevance to the issues. The compensation issue was never pleaded nor evidenced. The 1986 minutes and the Council's letter confirmed awareness and consent; the trial judge impermissibly shifted the burden of proof to the Appellant on public participation.
Extent of trust land and the setting apart process
Only approximately 350 hectares were trust land; the trial judge erred in nullifying the allocation of the entire 25,875 hectares without evidence that the whole was trust land.
The Council's own minutes and its letter appointing the Attorney General acknowledged the project area was majorly government land with isolated pockets of trust land covering about 350 hectares. The judge should have distinguished government land from trust land, having regard to the distinction between unalienated government land under the Government Lands Act and trust land vested in county councils.
Public interest and proportionality in granting relief
Public interest is relevant only when determining the relief to be granted, not whether a right was violated; courts must always pronounce on violations of rights notwithstanding public interest.
Drawing on CIC v Attorney General, Makwanyane, Bennion and Black's Law Dictionary, the court held that while courts may balance public and private interest under Article 1 when deciding what reliefs to grant, public interest can never justify or excuse a violation of constitutionally guaranteed rights. The trial court's decision, both on the merits and the reliefs, could not be upheld in light of these principles.
Legal principles established
#- State organs may file suits inter se to protect rights, capabilities, competencies and privileges accorded to them by the Constitution, but cannot claim or enforce Bill of Rights protections as their own; county governments as custodians of community land may move the court to obtain an interpretation of the Constitution regarding community land.
- All elements of res judicata under section 7 of the Civil Procedure Act are conjunctive and must all be satisfied for the bar to be upheld.
- A petition must set out the Articles of the Constitution complained to have been violated and link them to the issues for determination, per Anarita Karimi Njeru.
- Public interest does not justify a violation of constitutionally guaranteed rights; it is relevant only to the nature of the relief to be granted, where courts may balance public and private interest.
Court orders
#- 1.Appeal allowed
- 2.Judgment delivered in Malindi ELC Constitutional Petition No 2 of 2015 on September 14, 2016 set aside
- 3.Substituted therefor an order dismissing the petition
- 4.No order as to costs both in the appeal and in the court below
- On appeal from
- Environment and Land Court, Malindi
- ELC Constitutional Petition No 2 of 2015
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over appeals from the Environment and Land Court sitting as a constitutional court; the judgment does not cite a specific provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tana and Athi Development Authority v National Land Commission & another (Civil Appeal 93 of 2016) [2023] KECA 1207 (KLR)", Case Analysis (2023). Court of Appeal Civil Appeal (from Malindi ELC Constitutional Petition No 2 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1207/eng@2023-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.