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ELCPartially AllowedNot stated in the extract (Constitutional Petition, Eldoret)· [2016] KEELC 980 (KLR)

Kenneth Kiplagat Kimaiyo & 3 others v County Government of Elgeyo Marakwet & 2 others [2016] KEELC 980 (KLR)

Environment and Land Court (High Court of Kenya)
22 February 2016
AOAntony Ombwayo
6,222 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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The court halted construction of the Governor's residence on Kamariny Stadium land until the county consults NEMA, the National Land Commission and the public properly.

What this practically means

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Executive summary

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The petitioners challenged the County Government of Elgeyo Marakwet's decision to construct the Governor's official residence on part of Irong/Iten/451 (Kamariny Stadium), public land held in trust for the people, contending there was no public participation contrary to Article 10, that the National Land Commission was not involved contrary to Article 67 and the Land Act, and that the project violated Article 69(1). They sought a declaration, mandamus to demolish the structures, and a permanent injunction. The respondent admitted the land is public but argued the house occupies only about 3 of 23 acres, remains a public utility, and that participation occurred through budget forums, County Assembly approval, the spatial plan and the EIA process; it also invoked section 16 of the Government Proceedings Act against injunctions. The court framed four issues. It held that public participation was insufficient because the April 2014 barazas concerned the budget process, not change of user, and there was no evidence of compliance with section 59 EMCA, the EIA Regulations 2003 or section 87 of the County Government Act; Article 10 requires a substantive, not cosmetic, process. It further held the NLC, as sole manager of public land, ought to have been involved in the change of user. On remedies, the court held that constitutional proceedings are sui generis and not governed by the Government Proceedings Act, and county governments are not shielded from injunctions. However, it declined the declaration, mandamus for demolition and permanent injunction, holding Article 69(1) sets out state obligations not enforceable as rights, and that demolition or a permanent injunction would not be in the interest of justice given public funds expended. The court instead ordered the project stopped in the meantime until the county complies with EMCA in consultation with NEMA and the NLC, with structured public participation. As public interest litigation, each party was ordered to bear own costs.

Key legal issues

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01

Sufficiency of public participation

Holding

There was no sufficient public participation; the forums relied on related to the budget process, not change of user, and s.59 EMCA and s.87 County Government Act requirements were not met

Reasoning

Article 10 binds state organs when implementing public policy decisions. The mechanisms for participation are set out in s.59 EMCA and s.87 County Government Act. The court perused the replying affidavit and found no evidence of compliance with the EIA publication and consultation requirements, and held the April 2014 barazas concerned budget preparation, not the change of user of 3 acres.

p. 7
02

Involvement of the National Land Commission

Holding

The NLC ought to have been involved in the change of user of the public land as its sole manager under Article 67 and s.8 of the Land Act 2012

Reasoning

The suit property is public land vesting in the county government in trust for the people under Article 62, but administered on behalf of national and county governments by the NLC under Article 67(2)(a) and s.8 of the Land Act. Change of user of part of the stadium to a Governor's residence therefore required NLC involvement.

p. 8
03

Injunctions against the Government under Article 23

Holding

The Government Proceedings Act and Civil Procedure Act do not apply to constitutional proceedings; Article 23(3) remedies apply to all state organs, including county governments

Reasoning

Proceedings under Article 22/23 are sui generis. The Government Proceedings Act governs purely civil proceedings, is inferior to the Constitution, and the County Governments Act contains no provision protecting counties from injunctions. Had Parliament intended counties to enjoy GPA protection, it would have amended the Act to include them.

p. 9
04

Breach of Article 69(1) - sustainable exploitation of natural resources

Holding

Petitioners failed to demonstrate how use of 3 of 23 acres affects natural heritage, sustainable development or sustainable use

Reasoning

The respondent only excises 3 of 23 acres for a public use (the Governor's house remains a public utility). The petitioners did not demonstrate the impact on the natural heritage, sustainable development or sustainable use of the suit property.

p. 10

Legal principles established

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  • Public participation under Article 10 requires a detailed, substantive process in accordance with statutory mechanisms (s.59 EMCA, s.87 County Government Act), not a cosmetic one
  • Public land vests in county governments in trust for the people but is administered on their behalf by the National Land Commission, which must be involved in change of user of public land
  • The Government Proceedings Act does not apply to constitutional petitions under Article 23, and county governments are not shielded from injunctive orders by that Act
  • Article 69(1) state obligations cannot be enforced as rights under Article 23

Court orders

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  1. 1.The project in respect of the construction of the Governor's residence on Irong/Iten/451 be stopped in the meantime until the 1st respondent complies with the law of the Environmental Management and Coordination Act in consultation with NEMA and the National Land Commission to ensure all stakeholders are consulted and there be participation of the public in a structured process
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 20
  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 23
  • Constitution of Kenya, 2010Article 62
  • Constitution of Kenya, 2010Article 65
  • Constitution of Kenya, 2010Article 67
  • Constitution of Kenya, 2010Article 69(1)
  • Constitution of Kenya, 2010Article 70
  • Constitution of Kenya, 2010Article 165
  • County Government ActSection 87
  • Environmental Management and Co-ordination Act (EMCA)Sections 58(2), 59(1) and (2)
  • Environment (Impact Assessment & Audit) Regulations, 2003Regulations 17(1) to 25
  • Land Act, 2012Section 8
  • Government Proceedings Act, Cap 40Section 16(2)
  • Civil Procedure ActNot specified

Cases cited (2)

  • Robert N. Gakuru and Others v The Governor Kiambu County and Others
  • Doctors for Life International v. Speaker of the National Assembly and Others
    (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC)
Jurisdiction invoked
Articles 22, 23 and 165 of the Constitution of Kenya 2010 (enforcement of the Bill of Rights)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenneth Kiplagat Kimaiyo & 3 others v County Government of Elgeyo Marakwet & 2 others [2016] KEELC 980 (KLR)", Case Analysis (2016). Not stated in the extract (Constitutional Petition, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/980/eng@2016-02-22

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