Okiya Omtatah Okoiti v National Land Commission [2019] KEELC 1541 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a challenge to acquiring Nairobi National Park land for the SGR, clearing the legal path for that compulsory acquisition.
What this practically means
#Executive summary
#Key legal issues
#Parliamentary ratification under Article 71(1)
The Gazette Notice was not void for lack of ratification because the transaction was lawfully entered into before the commencement of the Natural Resources (Classes of Transactions Subject to Ratification) Act 2016 and is deemed valid under Section 16.
The excision of Nairobi National Park land for the SGR is listed in the Schedule to the 2016 Act as a transaction requiring ratification. However, the acquisition process commenced before that Act came into force on 4 October 2016. Section 16 of the Act expressly deems such pre-commencement transactions valid notwithstanding the absence of ratification, so the Petitioner's challenge fails.
Statutory Instruments Act compliance
The Gazette Notice of intention to acquire land is not a statutory instrument under Section 2 of the Statutory Instruments Act 2013 and did not require tabling in Parliament within seven days under Section 11(1).
The court held that the impugned notice, published pursuant to Section 110 of the Land Act to communicate intention to compulsorily acquire land, does not fall within the definition of a statutory instrument. Consequently, the procedural requirements of tabling and lapsing under the Act had no application.
Section 44 of the Wildlife Conservation and Management Act
Absence of a current Ecosystem Management Plan for Nairobi National Park did not render the compulsory acquisition of park land illegal.
Section 44(4) prohibits development in a national park without a management plan, but the court held that ecosystem management plans are management guides for parks and reserves, not prerequisites for land acquisition for a public purpose. The two processes are distinct, so the alleged lapse of the 2005-2010 plan was irrelevant to the acquisition.
Breach of NET stop orders
The Gazette Notice was not issued in contempt of the NET stop orders because acquisition of land was not the subject of the pending NET appeal.
Under Section 129(4) of EMCA the status quo is maintained pending appeal, but the matter before the NET was the grant of the EIA licence for constructing the SGR, not the acquisition of land. The Petitioner did not establish what the status quo was, and the Gazette Notice concerned a separate acquisition process, so no breach was made out.
Public participation and precision in pleading constitutional violations
The Petitioner failed to prove absence of public participation or to plead violations with the precision required by Anarita Karimi Njeru.
The court observed that public participation is embedded in the EIA process preceding the licence, and the Petitioner adduced no evidence that it was lacking or that the statutory steps in the Land Act preceding the notice were not followed. Citing Article 40 and other provisions without showing the manner of violation was fatal to the claim.
Legitimate expectation
No legitimate expectation of the Petitioner was violated as there was no evidence that the Respondent acted wrongfully.
Applying the definition of legitimate expectation as arising from a reasonable belief that a public body will adhere to established practice or keep a promise, the court found no basis for such an expectation since nothing done by the Respondent in publishing the notice was shown to be unlawful.
Legal principles established
#- A person alleging infringement of the right to a clean and healthy environment may apply to court for redress in addition to any other legal remedies available in respect of the same matter.
- A transaction subject to ratification by Parliament that was lawfully entered into before the commencement of the Natural Resources (Classes of Transactions Subject to Ratification) Act 2016 is deemed valid notwithstanding absence of ratification.
- A Gazette Notice communicating intention to compulsorily acquire land is not a statutory instrument requiring submission to Parliament under the Statutory Instruments Act 2013.
- An Ecosystem Management Plan under Section 44 of the Wildlife Conservation and Management Act is a management tool and has no bearing on the legality of compulsory acquisition of land for a public purpose.
- Compulsory acquisition of land for the SGR was not the subject matter of the NET appeal, so the Gazette Notice was not issued in breach of the NET stop orders.
- A party alleging constitutional violation must set out with reasonable precision the provision infringed and the manner of infringement.
Court orders
#- 1.The petition is dismissed
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Article 70(1) of the Constitution of Kenya, 2010 (enforcement of environmental rights)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okiya Omtatah Okoiti v National Land Commission [2019] KEELC 1541 (KLR)", Case Analysis (2019). Petition No. 541 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1541/eng@2019-08-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.