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ELCDismissedNot stated in the judgment (Notice of Motion dated 14/11/2019 in a petition)· [2020] KEELC 121 (KLR)

Fatuma Adan Dullo & 4 others v Cabinet Secretary Ministry of Lands and Physical Planning & 2 others [2020] KEELC 121 (KLR)

Environment and Land Court
18 November 2020
6,251 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court allowed land adjudication in Isiolo to continue, finding the amended notice lawful and public participation adequate.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Meru (Mbugua J) on a Notice of Motion dated 14/11/2019 in which two senators of Isiolo County, Hon. Fatuma Adan Dullo and Hon. Abshiro Soka Halake, sought conservatory orders restraining the Cabinet Secretary for Lands and other respondents from commencing or continuing adjudication, survey and demarcation of community land in Isiolo County pursuant to Legal Notice No. 150 of 2019, pending hearing of their petition. The petitioners contended that all land in Isiolo County is community land held by the County Government in trust, that no request had been made by the County Government under section 3(1) of the Land Adjudication Act, and that there was no public participation under Article 10 of the Constitution and section 8 of the Community Land Act. The respondents and the interested party (County Government of Isiolo) countered that the county had requested adjudication of settlement areas, an inventory of community land had been prepared under Regulation 12(1) of the Community Land Regulations, public sensitisation had been undertaken, and the impugned notice had been amended by Gazette Supplement No. 1 of 2020 to specify the affected wards. The court framed three issues: the definition and tenure of community land; the legality of the two notices; and public participation. It held that not all land in the county is community land, that the initial notice was defective but of no effect following the amendment, which conformed to statute, and that there was on the face of it public participation, with 38 exercises conducted. Observing that the application was not filed in good faith, the court dismissed it, with costs to abide the outcome of the main suit.

Key legal issues

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01

Whether all land in Isiolo County is community land

Holding

Not all land in Isiolo County is community land; the term 'all that community land' in the notices must be read within the Land Adjudication Act and Community Land Act, where individual rights as well as rights held in common are recognised

Reasoning

Article 63 sets out six categories of community land, calling for a rigorous classification exercise. Section 5(3) of the Community Land Act shows not all customary land rights are held in common; tenure can be customary, freehold, leasehold or other, and can transition to individual tenure. The Land Adjudication Act deals with ascertainment of rights in communal tenure for transition to individual tenure, and the Community Land Act recognises other written laws.

p. 6
02

The legality of Legal Notice No. 150 of 2019 and its amendment, Notice No. 1 of 2020

Holding

The initial Notice No. 150 of 2019 was not in tandem with the county's deliberations and did not comply with section 5 of the Land Adjudication Act, but it is of no effect in view of the amendment, which conforms with the statutory requirements and was issued at the request of the County Government

Reasoning

The initial schedule used an imprecise description contrary to section 5 which requires affected areas to be specified. However, the amended notice specified the wards and portions to be adjudicated and was issued under section 3(1) after a request by the County Government, supported by an inventory submitted under Regulation 12(1) of the Community Land Regulations. The court found the minister acted lawfully.

p. 7
03

Whether there was public participation

Holding

On the face of it there was public participation — 38 public participation exercises were carried out in the ten wards — and the adjudication process itself incorporates a participatory approach at its various stages

Reasoning

The respondents tabled sensitization schedules and a report showing 38 public participation exercises conducted with the National Land Commission. The County Assembly debated and adopted the report. Adjudication committees are appointed from area residents under section 6 of the Land Adjudication Act, ensuring community involvement throughout the process. This evidence can be scrutinised at trial.

p. 7

Legal principles established

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  • Section 5(2)(a) of the Land Adjudication Act is mandatory and requires the land to be adjudicated upon to be clearly defined
  • A party seeking a conservatory order need only demonstrate a prima facie case with likelihood of success and real danger of prejudice
  • The Community Land Act recognises the application of other written laws, including the Land Adjudication Act, in determination of rights in community land

Court orders

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  1. 1.The application dated 14/11/2019 is dismissed
  2. 2.The issue of costs shall abide the outcome of the main suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 23(3)(b) and (c); Article 10; Article 40; Article 62(2); Article 63
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules, 2012Rules 19 and 23
  • Land Adjudication Act (Cap 284)Sections 3(1), 5(1), 5(2)(a), 6
  • Community Land Act, 2016Sections 4(3), 5, 6(1), 6(6), 8(1), 8(2), 8(4) and (5), 15
  • Community Land Regulations, 2017Regulation 12(1)
  • Land Consolidation Act (Cap 283)Referred to in section 3(1)(c) Land Adjudication Act
  • Land (Group Representatives) Act Cap 287Repealed
  • Trust Land Act (Cap 288)Repealed
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (12)

  • Attorney General v Sumair Bansraj
    (1985) 38 WIR 286
  • Steve Furgoson & Another v The A.G. & Another
    Claim No. CV 2008-00639
  • Centre For Rights Education and Awareness (CREAW) & 7 others v Attorney General
    Petition No. 16 of 2011 [2011] eKLR
  • Judicial Service Commission v Speaker of the National Assembly & another
    Petition No. 518 of 2013 [2013] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    Petition No. 2 of 2013 [2014] eKLR
  • Muslims For Human Rights (MUHURI) & 2 others v Attorney General & 2 others
    High Court Petition No. 7 of 2011
  • Kelly Malenya v Attorney General & Another; Council of Governors (Interested Party)
    (2019) eKLR
  • The County Government of Meru & another v District Land Adjudication and Settlement Officer Tigania East Sub-County & 18 others
    [2018] eKLR
  • Muthara Njuri Ncheke Council of Elders & another v Committee of Ngare Mara/Gambella Adjudication Section & 2 others
    [2019] eKLR
  • Silverio Akubu & 4 others v Charles Baariu Salesio & 3 others
    [2019] eKLR
  • Robert N. Gakuru & another v Governor Kiambu County and 3 others
    [2013] eKLR
  • Mirugi Kariuki v Attorney General
    Civil Appeal No. 70 of 1991 (1990-1994) EA 156 (1992) KLR 8
Jurisdiction invoked
Article 23(3)(b) and (c) of the Constitution and Rules 19 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules, 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Fatuma Adan Dullo & 4 others v Cabinet Secretary Ministry of Lands and Physical Planning & 2 others [2020] KEELC 121 (KLR)", Case Analysis (2020). Not stated in the judgment (Notice of Motion dated 14/11/2019 in a petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/121/eng@2020-11-18

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