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ELCDismissedE.L.C. Petition No. 2 of 2016· [2018] KEELC 2357 (KLR)

Nickson Mutinda Musyoki & 9 others v National Land Commission & 24 others [2018] KEELC 2357 (KLR)

Environment and Land Court of Kenya
12 July 2018
6,421 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Environment and Land Court in Embu dismissed a challenge to the Mwea Settlement Scheme allocations, finding public participation adequate and no constitutional violations proved.

What this practically means

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Executive summary

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Ten petitioners, claiming to be residents of Mwea Settlement Scheme, challenged the demarcation, allocation and alienation of the Scheme as unconstitutional, alleging secrecy, absence of public participation, lack of transparency and violations of their rights to fair administrative action (Article 47) and access to information (Article 35). They sought declaratory orders, a mandatory order for disclosure of beneficiary lists and survey plans, and costs. The respondents and interested parties opposed, contending the process was conducted under a consent order in Embu ELC Petition No. 1 of 2014, involved extensive stakeholder consultations over three years, concluded with titles issued in May 2016, and that the petition was res judicata, sub judice and an abuse of process, with individual title holders not joined. The court framed ten issues. It held the petition was neither res judicata nor sub judice since the pleadings in the previous suits were never exhibited. It found the Scheme land to be community land under Article 63(2)(d)(iii), having been declared trust land by L.N. No 169 of 1970. However, it held there was no violation of Article 63(4): the Community Land Act 2016 commenced on 21st September 2016 after the process concluded, is prospective only, and the Respondents were entitled to rely on the Sixth Schedule transitional provisions. The court found the process was not secretive, that meaningful public participation was undertaken and the process was transparent and inclusive, and that no violation of Articles 47 or 35 was proved, no formal information request having been exhibited. The petition was dismissed with each party bearing its own costs, the court deeming the enforcement of public rights appropriate for that order.

Key legal issues

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01

Whether the petition was res judicata or sub judice

Holding

Neither doctrine was established because pleadings in the previous petitions were never exhibited

Reasoning

The court restated sections 6 and 7 of the Civil Procedure Act requiring identity of parties and of matters directly and substantially in issue. None of the respondents or interested parties exhibited the pleadings in Petition No. 1 of 2014, Petition No. 3 of 2016 or Petition No. 1 of 2016, so the court could not determine what issues were in issue in those suits. A consent order alone could not establish res judicata.

p. 5
02

Whether Mwea Settlement Scheme was public or community land

Holding

The Scheme land is community land under Article 63(2)(d)(iii), having been declared trust land by L.N. No 169 of 1970

Reasoning

The court accepted that the Scheme was declared trust land in 1970 under the repealed Constitution. Trust land lawfully held by county governments falls within the definition of community land in Article 63(2)(d)(iii), excluding public land held in trust under Article 62(2). The court therefore rejected the 3rd Respondent's characterisation of the land as unalienated government land under Article 62(1)(a).

p. 5
03

Whether the demarcation, allocation and alienation violated Article 63(4) of the Constitution

Holding

No violation; the process concluded before the Community Land Act came into force and the Respondents could rely on the Sixth Schedule transitional provisions

Reasoning

The Community Land Act 2016 was gazetted on 7th September 2016 and commenced on 21st September 2016, and lacks retrospective effect per the Interpretation and General Provisions Act and the presumption of prospectivity. Titles had been issued by May 2016. The delay in legislating was Parliament's, not the Respondents', who could not be expected to suspend their duties for six years.

p. 6
04

Whether the process was secret, lacked public participation, or was not transparent and inclusive

Holding

The process was not secretive; public participation was undertaken and the process was transparent and inclusive

Reasoning

Minutes of stakeholder meetings spanning about three years were on record, local administrators were aware, and the Petitioners did not allege the minutes were forged. Relying on Mui Coal Basin and Musimba, the court held meaningful stakeholder engagement suffices and there is no duty to canvass door to door. No material demonstrated lack of transparency or exclusion of the Akamba Community.

p. 6
05

Whether Articles 47 and 35 rights were violated

Holding

No violation of either right was established

Reasoning

Section 4 of the Fair Administrative Action Act protects persons against whom adverse administrative action is intended; no adverse action against the Petitioners was shown, and grievance mechanisms were available under the governing legal regime. On Article 35, there was no material showing a formal written application for information was made to the 1st Respondent, and the Access to Information Act 2016 was not yet operational at the material time.

p. 8

Legal principles established

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  • Land declared trust land under the repealed Constitution constitutes community land under Article 63(2)(d)(iii) of the Constitution
  • A party relying on res judicata or sub judice must exhibit the pleadings in the previous suits; a consent order alone is insufficient
  • Statutes apply prospectively unless clear language or legislative purpose indicates retrospective application
  • Respondents were entitled to apply existing law under the transitional provisions of the Sixth Schedule pending enactment of legislation under Article 63(5)
  • Public participation is satisfied by meaningful engagement with stakeholders; there is no obligation to engage every individual

Court orders

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  1. 1.The petition dated 14th April 2016 is dismissed.
  2. 2.Each party to bear its own costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 35, 47, 62(1)(a), 62(2), 63(2), 63(4), 63(5), Sixth Schedule section 7
  • Land Adjudication ActCap 284
  • Community Land Act2016
  • Fair Administrative Action Actsection 4
  • Access to Information Actsections 8, 14
  • Civil Procedure Actsections 6, 7, 27
  • Interpretation and General Provisions Actsection 9

Cases cited (4)

  • Uhuru Highway Development Ltd Vs Central Bank of Kenya & 2 Others
    [1996] eKLR
  • Ruturi & Kenya Bankers Association Vs Minister for Finance
    [2001] EA 253
  • In the matter of Mui Coal Basin Local Community (Constitutional Petition Nos 305 of 2012, 34 of 2013 and 12 of 2014 as consolidated)
    [2015] eKLR
  • Patrick Musimba Vs National Land Commission & 4 Others
    [2016] eKLR
Jurisdiction invoked
Articles 35(1), 47, 62(2), 63(1), (2), (3) and 67 of the Constitution of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Nickson Mutinda Musyoki & 9 others v National Land Commission & 24 others [2018] KEELC 2357 (KLR)", Case Analysis (2018). E.L.C. Petition No. 2 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2357/eng@2018-07-12

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