Nickson Mutinda Musyoki & 9 others v National Land Commission & 24 others [2018] KEELC 2357 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the petition was res judicata or sub judice
Neither doctrine was established because pleadings in the previous petitions were never exhibited
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.
Whether Mwea Settlement Scheme was public or community land
The Scheme land is community land under Article 63(2)(d)(iii), having been declared trust land by L.N. No 169 of 1970
The court accepted that the Scheme was declared trust land in 1970 under the repealed Constitution.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).
Whether the demarcation, allocation and alienation violated Article 63(4) of the Constitution
No violation; the process concluded before the Community Land Act came into force and the Respondents could rely on the Sixth Schedule transitional provisions
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.
Whether the process was secret, lacked public participation, or was not transparent and inclusive
The process was not secretive; public participation was undertaken and the process was transparent and inclusive
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.
Whether Articles 47 and 35 rights were violated
No violation of either right was established
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.
Legal principles established
#- 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
#- 1.The petition dated 14th April 2016 is dismissed.
- 2.Each party to bear its own costs.
- Jurisdiction invoked
- Articles 35(1), 47, 62(2), 63(1), (2), (3) and 67 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Warui v Mbeere Elders Advisory Welfare Group (NGOME) & 14 others (Civil Appeal 141 of 2020) [2025] KECA 960 (KLR)[2025] KECA 960 (KLR)23 May 2025
- Mbeere Elders Welfare Advisory Group (Ngome) & 4 others v Attorney General & 7 others; Njeru & 233 others & 2 others (Interested Parties) (Environment & Land Petition 1 of 2014) [2024] KEELC 968 (KLR)[2024] KEELC 968 (KLR)30 Jan 2024
- Mbeere Elders Advisory Welfare Group (Ngome) & 4 others v Attorney General & 302 others; Ambrose Kithaka Kariuk & 6048 others (Interested Parties) [2020] KEELC 3716 (KLR)[2020] KEELC 3716 (KLR)6 Feb 2020
- County Government of Kirinyaga v Cabinet Secretary, Ministry of Land, Housing and Urban Development & 2 others [2018] KEELC 1846 (KLR)[2018] KEELC 1846 (KLR)27 Sept 2018followed
Cite this brief
#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.