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ELCDismissedNotice of Motion dated 20th September 2016 (within the Petition, Malindi ELC)· [2018] KEELC 1732 (KLR)

Omar Abdalla Mohamed & 20 others v County Government of Lamu 8 others [2018] KEELC 1732 (KLR)

Environment and Land Court
28 September 2018
JOJ.O. Olola
3,283 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Malindi dismissed 21 Lamu residents' bid to stop a wind power project because they could not prove they owned the public land they occupy.

What this practically means

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Executive summary

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The 21 Petitioners, residents of Kiongwe Mjini in Bahari Ward, Lamu County, moved the court by Notice of Motion dated 20th September 2016 seeking interim injunctions restraining the County Government of Lamu, the Ministry of Lands, the National Land Commission, the Attorney General, Cordisons Wind Power Project and the 6th Respondent from implementing PDP No. LMU/1281/01/16, which covered 4057.350 hectares instead of the approximately 1282.42 hectares they said had been agreed for a Wind Power Generation Project. They claimed they were beneficiaries entitled to the land, which had been surveyed and adjudicated and for which they awaited title deeds. The 1st Respondent countered that the PDP site was Kiongwe Mashambani, public land under Article 62(1) held by the County in trust, while Kiongwe Mjini land was already privately titled; it also argued the Petition was premature under Section 19 of the Physical Planning Act. The 5th Respondent opposed the application and challenged the later gazetted PDPs as fraudulent. Three interested parties were enjoined and argued res judicata and lack of locus standi. Applying the Giella –vs- Cassman Brown principles, the court found the Petitioners had no title, no proprietary or beneficial interest, and that the land was public trust land vested in the County Government under Article 62(2), incapable of individual ownership unless converted. The application was dismissed with costs on 28th September 2018.

Key legal issues

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01

Prima facie case for injunction

Holding

Petitioners failed to demonstrate a prima facie case with probability of success since they hold no title or proprietary interest in the suit land, which is public/trust land vested in the County Government

Reasoning

The court applied the Giella principles sequentially. Although Petitioners occupied the land and awaited title deeds following adjudication, the 1st Respondent showed the land was public land under Article 62(1). Petitioners did not deny this. Without ownership or legal/beneficial interest, their constitutional property claim and the injunction could not stand.

p. 5
02

Entitlement as prerequisite to constitutional property claim

Holding

An applicant claiming infringement of the right to property must first establish the nature of and entitlement to the property right under domestic law

Reasoning

Relying on Kitui Ole Yiamboi and Halsbury's Laws, the court held constitutional protection of property does not arise until a claim in the property is possible. The Petitioners' long occupation of trust land did not confer ownership; any allocation would be a matter for the National Land Commission.

p. 5

Legal principles established

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  • Public land under Article 62(2) is vested in the County Government to be held in trust for residents and cannot be owned by individuals unless converted to private land
  • To establish a breach of the right to property, an applicant must demonstrate entitlement to the property

Court orders

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  1. 1.The Notice of Motion dated 20th September 2016 is dismissed
  2. 2.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 62(1)
  • Constitution of Kenya, 2010Article 62(2)
  • Constitution of Kenya, 2010Articles 22, 23 and 258
  • Physical Planning ActSection 19

Cases cited (6)

  • Giella –vs- Cassman Brown Company Ltd
    (1973) EA 358
  • Kenya Commercial Finance Company Ltd –vs- Afraha Education Society
    (2001) 1EA 86
  • Mrao Ltd –vs- First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125
  • Nguruman Ltd –vs- Jan Bonde Nelsen & 2 Others
    (2014) eKLR
  • James Gachichio Gichu & Others –vs- The Attorney General & 4 Others (Malindi ELC Petition No. 10 of 2015)
    unreported
  • Kitui Ole Yiamboi & Another –vs- Agricultural Finance Corporation & 102 Others
    (2016) eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (Articles 22, 23 and 258 invoked regarding enforcement of fundamental rights); Environment and Land Court jurisdiction

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, "Omar Abdalla Mohamed & 20 others v County Government of Lamu 8 others [2018] KEELC 1732 (KLR)", Case Analysis (2018). Notice of Motion dated 20th September 2016 (within the Petition, Malindi ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1732/eng@2018-09-28

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