Jimmy Gichuki Kiago & another v Transtional Authority & 7 others [2019] KEELC 4738 (KLR)
The bottom line
#Kenya's Environment and Land Court invalidated Trans-Nzoia's reallocation of public utility plots, confirming counties cannot re-plan public land without the Director of Physical Planning's approval.
What this practically means
#Executive summary
#Key legal issues
#Whether the county council could lawfully re-plan public utility land
The re-planning was wholly without jurisdiction and illegal; re-planning is the mandate of the Director of Physical Planning under Section 5 of the Physical Planning Act, and Section 29 does not give the local authority exclusive mandate.
Section 29 of the Physical Planning Act empowers the local authority only in development control, prevention of subdivision, approval of development applications, implementation of approved plans, zoning bylaws and maintenance of open spaces. It does not confer power to re-plan. Section 5 vests planning functions in the Director of Physical Planning, who may delegate them in writing. No such delegation or approval existed, so the 2010 resolution was ultra vires.
Whether the allotment letters issued are a nullity
The letters of allotment are a nullity incapable of transferring any interest to the allottees or third parties.
Since the re-planning that created the plots was ultra vires and a nullity ab initio, the allotment letters founded on it are equally null and void. Evidence showed the Commissioner of Lands never issued allotment letters, DExh 2 lacked approval and even a surveyor's signature, and the surveyor's report showed encroachment on land reserved for schools and roads.
Whether the plaintiffs needed to appeal under Section 10 of the Physical Planning Act
No appeal was required because the decision was made without jurisdiction and never fell within the council's mandate.
The court found the re-planning ultra vires; a nullity ab initio is not a decision within the contemplation of the statutory appeal machinery. The court noted the alternative-dispute-resolution principle from Alphonse Mwangemi Munga but held that failure to appeal could only have been fatal had the action been lawful.
Whether public utility land conversions required justification, public participation and EIA
Conversion of public utility plots required justification, public participation and an environmental impact assessment, none of which was demonstrated.
The defendants produced no evidence of public participation, no minutes of any awareness meeting, no justification for converting school, cemetery and dispensary land, and complied with neither Section 58 of EMCA nor the minimum standards applicable to such conversions.
Legal principles established
#- Re-planning of land is the mandate of the Director of Physical Planning, who may delegate such duties; a local authority's town planning committee has no power to re-plan land without recourse to the Ministry of Lands.
- Land acquired or set aside for a public purpose cannot be alienated, transferred or used in any other way than for the set public purpose.
- An action taken without jurisdiction is a nullity ab initio, and no appeal lies against it since it never fell within the decision-maker's mandate.
- Conversion of public utility plots into commercial plots requires justification and evidence of public participation.
- Major changes in land use require an environmental impact assessment under Section 58 of EMCA.
Court orders
#- 1.Declaration that the purported change of use of the public utility land identified in PDP No ELD./932/83/1 is illegal
- 2.Declaration that the allotment letters issued by the County Council of Trans Nzoia to the 2nd to 7th defendants or any other individuals are a nullity
- 3.Declaration that the spaces in Land Parcel No Trans Nzoia/Emoru/26 meant for public utilities as indicated in PDP No ELD./932/83/1 shall be retained for such purposes
- 4.Nullification of the amendment converting Plots Nos. 4(3), 2(1) and 3(1); the only valid PDP is ELD./932/83/1
- 5.Declaration that PDP No ELD./932/83/1A is null and void
- 6.Order that the 2nd to 7th defendants and any encroachers remove themselves and their property from the suit land, and in default be evicted
- 7.Permanent injunction restraining the 1st defendant from issuing further allotment letters
- 8.Defendants to bear the costs of the suit
- Jurisdiction invoked
- Original jurisdiction; plaintiffs sued under Section 22 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jimmy Gichuki Kiago & another v Transtional Authority & 7 others [2019] KEELC 4738 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4738/eng@2019-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.