County Government of Kirinyaga v Cabinet Secretary, Ministry of Land, Housing and Urban Development & 2 others [2018] KEELC 1846 (KLR)

The court held that both doctrines require the same parties or parties claiming under the same title, and matters directly and substantially in issue. The Petitioner was not party to the earlier petition and no evidence showed the earlier petitioners claimed through it. Further, the consent order in the earlier petition was partial and did not conclusively determine the issues raised in this petition.

Respondents argued the process proceeded under a consent order in the earlier petition that had not been set aside or appealed. The court found that even if the Petitioner had sought joinder and setting aside of the consent order, the constitutional issues raised in the petition would not have been resolved, so the petition was not a misuse of court machinery.

Relying on precedent that participation need only be a reasonable opportunity to participate and need not follow any particular form, the court was satisfied that consultative meetings documented by minutes and affidavits demonstrated meaningful engagement with the various communities resident in Embu County before the demarcation and allocation process commenced.

The Mbeere community received the largest allocation (40%), but the Petitioner did not contend that the populations of the communities were equal so as to require equal sharing. The court held that a larger allocation, without more, cannot constitute discrimination under Article 27(4), as relative population sizes may justify the different percentages.

Article 40(3) protects property rights and interests that have already crystallized. Persons with an expectation, even a legitimate expectation, of being allocated community land cannot claim deprivation of property where allocation does not materialize. The Petitioner and those it represented had no vested rights in the scheme.

The court agreed the right applies to the citizens on whose behalf the petition was filed, but held that merely missing out on allocation does not demonstrate a violation of dignity. Evidence was required of deliberate acts or omissions by the Respondents violating human dignity, which the record did not contain.

There was no evidence of a request for information by the Petitioner, no letter of request was exhibited, so no refusal could be established. The court also noted authority limiting the Article 35(1) right of 'citizen' to natural persons, casting doubt on its availability to the Petitioner, a legal person.

The court adopted its observations in a related petition, holding that the Fair Administrative Action Act was designed for adverse action against persons. Demarcating and allocating land was not adverse administrative action, so public participation sufficed. Allocation of scarce land to every claimant is impossible and missing out does not breach legitimate expectation.

The Community Land Act, 2016 was assented to on 31st August 2016 and came into force after the impugned process. The court applied its earlier holding in Nickson Mutinda Musyoki that Respondents were entitled to invoke the transitional provisions of the Sixth Schedule and were not required to suspend their duties for years awaiting the legislation.

This issue had been raised as a preliminary objection by the 1st and 3rd interested parties. In a ruling dated 18th January 2018 the court had dismissed the objections, finding the Petitioner made reasonable efforts to invoke ADR mechanisms under the Inter-Governmental Relations Act without success. The court maintained that decision.