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ELCDismissedNot stated in the judgment (Plaint dated 18th June 2014)· [2020] KEELC 1728 (KLR)

Katana Charo Fondoh & 2 others v Garder General Trading Limited & another [2020] KEELC 1728 (KLR)

Environment and Land Court
10 July 2020
JOJ. O. Olola
2,759 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled residents had a fair chance to object to a county land lease, so the lease was lawful and the residents' challenge failed.

What this practically means

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Executive summary

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Three officials of Matolani Residents Development Association sued Garder General Trading Ltd (1st Defendant) and the County Government of Kilifi (2nd Defendant), seeking declarations that the Defendants' acts were ultra vires and that a Lease Agreement dated 16th September 2010 over 3,500 Ha of Matolani Trust Land was null and void, plus an order for vacant possession. The Plaintiffs alleged the lease was negotiated without their involvement despite their customary cultivation and grazing rights. The 1st Defendant filed a defence but did not participate in the trial; the 2nd Defendant maintained that residents were consulted, approved the project, and that it had terminated the lease on 27th January 2016 after the 1st Defendant breached its community covenants. The court found minutes of a meeting of 3rd December 2009 attended by some 147 residents, including the Area Assistant Chief, in which the lease proposal was approved by majority votes, and PW1 conceded attending such a meeting. Relying on Nairobi Metropolitan PSC Sacco Union Ltd v County Government of Nairobi and the South African decision in Minister of Health v New Chicks South Africa (PRY) Ltd, Olola J held that public participation requires only a reasonable opportunity to participate, not the involvement of every member. The court was satisfied residents participated, an Environmental Impact Assessment was done, and the Council set apart the land by vote. The suit was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether there was adequate public participation in the leasing of the Matolani Trust Land

Holding

There was adequate public participation through a meeting of residents held on 3rd December 2009 which approved the project, followed by the Council's vote to set apart the land and an Environmental Impact Assessment

Reasoning

Minutes of a meeting of 147 residents including the Area Assistant Chief showed the lease proposal was discussed and approved by majority votes. PW1 conceded attending a meeting where residents were asked to agree to the investment. The Plaintiffs produced no resolutions showing rejection. Reasonable opportunity, not unanimity, is the measure of participation.

p. 3
02

Whether the Lease Agreement was ultra vires and null and void

Holding

The agreement was not ultra vires; it was lawfully entered after consultation and was validly terminated by the 2nd Defendant when the 1st Defendant failed to honour its community covenants

Reasoning

Clause 4 obliged the 1st Defendant to undertake corporate social responsibility projects for the Matolani community. Its failure led the 2nd Defendant to terminate the lease on 27th January 2016, effectively meeting the Plaintiffs' wishes, so no declaration of invalidity was warranted.

p. 4

Legal principles established

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  • Public participation does not require that every affected member give their views; what is required is that a reasonable opportunity is given to the public and interested parties to participate

Court orders

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  1. 1.The Plaintiffs' suit is dismissed
  2. 2.Each party shall bear their own costs

Authorities

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Legislation

  • Constitution of Kenya (implied by public participation and trust land trusteeship arguments)Not specified

Cases cited (2)

  • Nairobi Metropolitan PSC Sacco Union Ltd & 25 Others -vs- County Government of Nairobi & 3 Others
    (2013) eKLR
  • Minister of Health -vs- New Chicks South Africa (PRY) Ltd
    null
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over trust land and leasehold disputes (suit filed by Plaint)

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, "Katana Charo Fondoh & 2 others v Garder General Trading Limited & another [2020] KEELC 1728 (KLR)", Case Analysis (2020). Not stated in the judgment (Plaint dated 18th June 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1728/eng@2020-07-10

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