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ELCDismissedJudicial Review Notice of Motion No. 1 of 2007 (originally filed in the High Court at Embu)· [2019] KEELC 177 (KLR)

Republic v Attorney General & Minister of Lands Exparte Samuel Mbiri Nguu & 19 others; Kirinyaga County Government & another (Interested Parties) [2019] KEELC 177 (KLR)

Environment and Land Court
22 November 2019
ECE.C. Cherono
2,053 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that land gazetted for public irrigation cannot be privately titled, dismissing a 12-year battle by 500 Mwea claimants.

What this practically means

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Executive summary

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This judicial review began in the High Court at Embu as Notice of Motion No. 1 of 2007, in which the ex-parte applicants - members of twenty clans comprising about 500 family members - sought an order of mandamus compelling the Minister for Lands to complete consolidation, registration and issuance of title deeds over Mwea/Chumbiri Block 52-55 in Kirinyaga, plus an order of prohibition restraining the Minister from alienating or interfering with the land except for issuing titles to them. The matter was transferred to the Environment and Land Court at Kerugoya by Ong'udi J in May 2014. The Kirinyaga County Government and the National Irrigation Board were enjoined as interested parties. The respondents' evidence, including Gazette Notices, maps and a court-ordered site inspection, showed the land was set apart for public use by Gazette Notice No. 3099 of 1960, allocated to the National Irrigation Board by the Kirinyaga County Council on 14th April 1970, forms part of the gazetted Mwea Irrigation Settlement Scheme, has a clear external boundary, is unoccupied and under rice cultivation. The Court, applying proportionality review under the Fair Administrative Actions Act and associating itself with the authorities holding that land set apart for public use cannot be allocated to private individuals, found the land unavailable for adjudication or registration to the applicants. It dismissed the applicants' Amended Motion dated 20th February 2008, with each party bearing its own costs.

Key legal issues

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01

Availability of the suit land for adjudication and registration

Holding

The suit land was set apart for public use (Gazette Notice No. 3099 of 1960) and allocated to the National Irrigation Board; it is alienated land not available for consolidation, adjudication or registration in favour of the applicants

Reasoning

Respondents' affidavit evidence, including Gazette Notices, maps and a site visit report by court-ordered survey officers, established a clear external boundary between the NIB land and neighbouring parcels, that the numbering of the portions was a preserve of the NIB, and that nobody resides on the land which is under rice cultivation. The land was allocated to NIB by the Kirinyaga County Council on 14th April 1970 and is therefore unavailable for allocation to private individuals.

p. 3
02

Scope of judicial review on public interest grounds

Holding

Though judicial review is traditionally concerned with process and not merits, proportionality under the Fair Administrative Actions Act allows courts to weigh public interest against private interest, and here the public purpose of the land prevails

Reasoning

The Court adopted Odunga J's exposition in James Opiyo Wandayi that courts may, pursuant to Article 1 of the Constitution, balance public and private interests and decide where the scales of justice tilt. Even applying proportionality review, compelling the Minister to adjudicate and register land reserved for a public irrigation scheme would not serve the public interest and the discretion was declined in favour of the applicants.

p. 3

Legal principles established

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  • Once land is set apart for public use it cannot be allocated to private individuals
  • The principle of proportionality is now part of Kenyan judicial review jurisprudence by virtue of Section 8(2) of the Fair Administrative Actions Act

Court orders

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  1. 1.Dismissal of the applicants' Amended Motion dated 20th February 2008 for lacking merit
  2. 2.Each party to bear his own costs

Authorities

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Legislation

  • Fair Administrative Actions ActSection 8(2) (referred to as Section 7(2)(1))
  • Constitution of Kenya, 2010Article 1
  • Government Lands Act (GLA)Sections 12 and 13 (as referred to in Associated Steel case)

Cases cited (3)

  • James Opiyo Wandayi Vs Kenya National Assembly & 2 others
    (2016) e K.L.R
  • James Joram Nyaga Vs The Attorney General & another
    (2007) e K.L.R
  • Republic Vs Commissioner of Lands & 4 others Ex-parte Associated Steel Limited
    High Court at Nairobi Misc. Civil Suit No. 273 of 2007 (2014) e K.L.R
On appeal from
High Court of Kenya at Embu
Notice of Motion No. 1 of 2007 dated 18th October 2007
Jurisdiction invoked
Judicial review jurisdiction under the Fair Administrative Actions Act and the new Constitution of Kenya, 2010 (transferred from the High Court on 26th May 2014)

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, "Republic v Attorney General & Minister of Lands Exparte Samuel Mbiri Nguu & 19 others; Kirinyaga County Government & another (Interested Parties) [2019] KEELC 177 (KLR)", Case Analysis (2019). Judicial Review Notice of Motion No. 1 of 2007 (originally filed in the High Court at Embu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/177/eng@2019-11-22

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