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ELCOtherNakuru ELC Petition No. 11 of 2014 (consolidated with Nakuru ELC Petition No. 306 of 2014)· [2016] KEELC 375 (KLR)

Kitilai Ole Ntutu & 4 others v County Government of Narok & 2 others [2016] KEELC 375 (KLR)

Environment and Land Court of Kenya
12 October 2016
MSMunyao Sila
3,746 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court paused judgment on landowners' constitutional claims, ordering Narok County to file a proper suit challenging the validity of their Mau Forest land titles within 60 days.

What this practically means

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Executive summary

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Two consolidated constitutional petitions were heard before the Environment and Land Court at Nakuru before Munyao Sila J. In Petition No. 11 of 2014, Kitilai Ole Ntutu claimed to be the registered owner of two parcels (CIS Mara/Nkareta/777 and 781) and alleged that the County Government of Narok caused its rangers to encroach upon and deny him access to the land, seeking declarations of infringement of Article 40 and a permanent injunction. In Petition No. 306 of 2014, three petitioners, on their own behalf and on behalf of the Nkareta Community land owners, claimed ownership of some 55 parcels, alleging that county rangers invaded the land from about 2005, established a camp, logged cedar trees, degraded the forest and blockaded access; they sought declarations, injunctions, mandatory injunction, general and exemplary damages and costs. The respondents, through the affidavit of Michael Koikai, Director of Security, asserted that the parcels form part of the Maasai Mau Forest, are trust land under the County Government's custody, and that the titles were unlawfully created without proper adjudication. The court found a substantive issue to be tried: whether the petitioners' titles were valid and deserving of Article 40 protection. Because the petition route left the respondents no avenue to counterclaim for cancellation of titles, and affidavit evidence was insufficient for a conclusive finding on such an important question concerning the Mau Forest, the court declined to render judgment. It directed the respondents to file a substantive suit seeking revocation of the titles within 60 days, failing which the petitions would be determined on the documents filed, and held judgment on both petitions in abeyance.

Key legal issues

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01

Whether the validity of the petitioners' titles could be determined on the petitions

Holding

The court found a substantive issue to be tried - whether the titles are good titles protected by Article 40 - and declined to determine it solely on affidavit evidence

Reasoning

The respondents contended the parcels are trust land within the Mau Forest and the titles were irregularly issued after adjudication had closed. No finding on unlawfulness had been made, but the contention could not be ignored. Given the ecological importance of the Mau Forest and the need for a conclusive determination, the court found it difficult to make a concrete finding on affidavit evidence alone and directed the respondents to file a substantive suit seeking revocation of the titles.

p. 5
02

Procedural course where respondents in a petition cannot counterclaim

Holding

The court departed from standard procedure, directing the respondents to file a substantive suit rather than determine the petitions immediately

Reasoning

Because the petitioners sued by petition rather than plaint, the respondents had no avenue to counterclaim for cancellation of titles. The court held it should not be beholden to technicalities; its core function is to resolve disputes and make determinate findings. It therefore directed the respondents to file a suit seeking revocation of the titles within 60 days, failing which the petitions would be determined on the documents filed.

p. 5

Legal principles established

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  • Title found to have been unlawfully acquired cannot benefit from the protection of Article 40 of the Constitution
  • The court has discretion to determine the legality of title within a constitutional petition or to direct that it be tried by other means, guided by Article 159 and the need to do substantive justice

Court orders

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  1. 1.The respondents are granted 60 days to file an appropriate suit to determine whether the titles of the petitioners are genuine, should stand, be protected or be cancelled, and whether the land is forest land forming part of the Mau Forest
  2. 2.If no suit is filed as directed, the petition will be heard and determined on the basis of the documents filed
  3. 3.Further directions to be provided depending on whether or not a suit is filed
  4. 4.Judgment on the two petitions is held in abeyance
Jurisdiction invoked
Articles 40, 42 and 159 of the Constitution of Kenya, 2010 (constitutional petitions alleging violation of fundamental rights)

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, "Kitilai Ole Ntutu & 4 others v County Government of Narok & 2 others [2016] KEELC 375 (KLR)", Case Analysis (2016). Nakuru ELC Petition No. 11 of 2014 (consolidated with Nakuru ELC Petition No. 306 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/375/eng@2016-10-12

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