Joash Onyango Okelo & 69 others v Kenya Wildlife Service & 5 others [2019] KEELC 5018 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a community's 2010 bid to reclaim Ndere Island, ruling the 1987 gazettement as a National Park was lawful and the claim came far too late.
What this practically means
#Executive summary
#Key legal issues
#Legality of the setting apart and gazettement of Ndere Island as a National Park
The setting apart and gazettement were lawful; there was sufficient consultation with the 5th Defendant and the residents, and the decision was never challenged by judicial review
The court reviewed the gazette notices (L.N. No. 3552 of 1987 and L.N. No. 368 of 1986), correspondence between authorities and the County Council, and the 1992 correspondence confirming the decision not to degazette. It found evidence of consultation with the Council, which held the land in trust, and noted no judicial review was ever mounted against the notices, which stood as final decisions.
Limitation of actions
The suit challenging the 1986/1987 setting apart and gazettement, filed in 2010, is statute barred under Sections 4 and 7 of the Limitation of Actions Act
The court found the setting apart and gazettement had been a final decision not legally challenged at the time. Residents were then pursuing only compensation, indicating acceptance. The 2010 challenge fell outside the limitation periods, and any compensation claims under Section 8 of the Trust Lands Act should have been lodged at the time with the District Commissioner.
Effect of setting apart trust land on communal rights
The Plaintiffs' communal rights over the Island ended when the land was set apart by the 1987 gazette notice
Relying on Citson Energy Limited v Francis Chachu Ganya, the court held that under Section 117(2) of the repealed Constitution, setting apart extinguished prior community rights and interests, and the gazette notice was prima facie evidence of lawful setting apart. The Ndungu Report confirmed setting apart removes trust land from community dominion to public ownership.
Locus standi of the Plaintiffs
The Plaintiffs had locus standi, having obtained leave to sue on their own behalf and on behalf of others
The court noted the Plaintiffs applied for and obtained leave to bring the suit representatively through the application dated 2nd August 2010, allowed on 19th June 2013. The defence submission that they lacked locus standi therefore failed, though the suit ultimately failed on limitation.
Legal principles established
#- Setting apart of trust land under Section 117 of the repealed Constitution extinguishes the community's previous rights and interests in the land from the date of the gazette notice
- A suit filed in 2010 challenging a setting apart and gazettement done in 1986 and 1987 is caught by Sections 4 and 7 of the Limitation of Actions Act
- Trust land can only be legally removed from communal ownership through adjudication and registration or setting apart
Court orders
#- 1.Dismissal of the Plaintiffs' suit
- 2.Each party to meet their own costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land comprising Ndere Island, Kisumu
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joash Onyango Okelo & 69 others v Kenya Wildlife Service & 5 others [2019] KEELC 5018 (KLR)", Case Analysis (2019). ELC Case No. 899 of 2015 (Formerly HCCC No. 127 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5018/eng@2019-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.