Republic v Lamu County commissioner & 2 others Ex Parte Mohamed Mbwana Shee [2013] KEELC 105 (KLR)
The bottom line
#Kenya's High Court stopped a Lamu land adjudication because, after 2010, public land belongs to the National Land Commission—not county commissioners or the Ministry of Lands.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the Ex parte Applicant
The Applicant, a public-spirited individual, has locus standi to litigate over the allocation of government land even if not a resident of the area.
The Respondents claimed the Applicant was not a resident of Mvundeni and had no authority to speak for the community. The court held that once the Applicant stated on oath he hailed from Mvundeni, the burden lay on the Respondents to disprove it. More fundamentally, a challenge to whether holders of public office followed due process in demarcating and adjudicating unalienated government land is public interest litigation that any person may commence.
Mandate over unalienated government land after the 2010 Constitution
The 1st and 2nd Respondents acted in excess of jurisdiction; administration of unalienated government land was, from August 2010, the preserve of the National Land Commission.
All parties agreed the Mvundeni land was unalienated Government land. Article 62(1)(a) classes such land as public land, which under Article 62(2) vests in the county government in trust for residents and is administered by the National Land Commission, a function repeated in section 5(1)(a) of the NLC Act and section 134 of the Land Act on settlement programmes. It did not matter that the NLC Act was not yet enacted or commissioners appointed in 2010.
Legal principles established
#- Any person may bring public interest litigation to challenge the process of allocation of government, public or trust land, without needing to prove personal residence in the affected area.
- Unalienated government land became public land vested in county governments and administered by the National Land Commission upon the promulgation of the 2010 Constitution, and the Ministry of Lands lost mandate over it.
- Certiorari and prohibition issue where a decision is made in excess or without jurisdiction, irrationally or unreasonably, or in breach of natural justice.
Court orders
#- 1.The Ex parte Applicant's Notice of Motion dated 6th November 2012 is allowed in its entirety, confirming the leave orders granted by Justice Meoli (certiorari to quash the 1st Respondent's directive in the letter dated 23rd August 2012; prohibition against the 2nd Respondent proceeding with the Mvundeni Land Adjudication process; prohibition against the 3rd Respondent releasing or otherwise financing the adjudication process with Kshs.1,500,000)
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court (orders of certiorari and prohibition); Constitution of Kenya 2010, Articles 62(1)(a) and 62(2)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Lamu County commissioner & 2 others Ex Parte Mohamed Mbwana Shee [2013] KEELC 105 (KLR)", Case Analysis (2013). Notice of Motion dated 6th November 2012 (Judicial Review, Malindi High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/105/eng@2013-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.