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ELCDismissedPetition dated 5/11/2019· [2020] KEELC 2196 (KLR)

Johnson Lesanyane Echwa & 11 others v County Government of Turkana & another [2020] KEELC 2196 (KLR)

Environment and Land Court
7 May 2020
MNMwangi Njoroge
4,980 words in judgment
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The bottom line

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A Turkana community lost its community land case because it could not prove key facts, like who set the beacons and the land's boundaries.

What this practically means

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Executive summary

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The petitioners, members of the Turkana community living along River Turkwel and Chokochok in Turkana County, petitioned for declarations that the suit land is community land held under native title under Article 63 of the Constitution, that its intended allocation to private developers by the county respondents was illegal and unconstitutional, a permanent injunction against interference or alienation, and a mandatory order compelling the national government to survey the land and issue title deeds, plus costs. The respondents, through replying affidavits of their Directors of Physical Planning, denied any intention, announcement or commencement of survey, mapping, beaconing or allocation, admitted the land is unregistered community land held in trust by the county government, and challenged the evidentiary basis of the claims. The court framed two issues: whether a violation of constitutional rights was established and what orders should issue. Applying section 107(1) of the Evidence Act and the Anarita Karimi Njeru precision principle, the court found the petitioners had failed to prove the pleaded facts: the photographs of beacons lacked proof of location on the suit land and of any nexus to the respondents, and the section 106B(4) certificate was not executed by the deponent. The mandatory order failed because the national government was not a party or pleaded against, consistent with the distinctness of the two levels of government under Articles 1(4) and 6(2), and the declaration of community land title failed for want of evidence of the extent and boundaries of the claimed land. The petition was dismissed with each party bearing their own costs, the court noting the matter involved great public interest.

Key legal issues

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01

Whether the petitioners proved the alleged violations/threats to their constitutional rights

Holding

The petitioners failed to establish the factual matrix: no proof that the respondents erected beacons, surveyed or mapped the suit land or intended to allocate it

Reasoning

The court examined the affidavit evidence and found the photographs lacked proof of location on the suit land and did not identify the respondents as the erectors of the beacons. The certificate under section 106B(4) was executed by someone other than the deponent. Without establishing the facts pleaded, there is no foundation for an inquiry into violation of rights.

p. 5
02

Whether the mandatory order against the national government could issue

Holding

It could not, as the national government was not a party and was not pleaded against

Reasoning

Articles 1(4) and 6(2) make national and county levels distinct; the conduct of the county government could not ground orders against the national government. Following Raila Odinga and Mutinda Mule, parties are bound by pleadings and courts cannot make orders not premised on pleadings.

p. 6
03

Whether declarations of community land title under Article 63 could issue

Holding

No, because the extent and boundaries of the claimed land were not established

Reasoning

Land in a county may fall in multiple constitutional categories. Without concrete evidence of extent and boundaries the court could not declare the land community land or native title.

p. 6

Legal principles established

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  • A petitioner alleging constitutional violation must set out with reasonable precision the provision infringed and the manner of infringement, and must prove the factual matrix pleaded
  • Parties are bound by their pleadings and no orders may issue beyond matters pleaded
  • The sins of one level of government cannot be foisted on the other; national and county governments are distinct and inter-dependent

Court orders

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  1. 1.The petition dated 5/11/2019 (27th May 2019 as referenced) is dismissed
  2. 2.Each party to bear their own costs of the petition

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 1, 1(4), 6(2), 10, 29, 40, 42, 43, 47, 62(2), 63(1)-(5), 174; Fourth Schedule Part 2 Section 8(b)
  • Evidence Act Cap 80Sections 106B(4), 107(1)
  • Community Land Act No. 27 of 2016Section 2
  • County Governments ActSection 87

Cases cited (11)

  • Thuku Kirori & 4 Others v The County Government of Muranga
    Petition No 1 of 2014 (2014) eKLR
  • Mada Holdings Ltd t/a Fig Tree Camp v County Council of Narok
    Narok HCJR No 122 of 2011, (2012) eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others
    (2013) eKLR
  • Bitange Ndemo v Director of Public Prosecutions & 4 others
    2016 eKLR
  • Edward Akong'o Oyugi & 2 others v Attorney General
    [2019] eKLR
  • Anarita Karimi Njeru v Republic (No.1)
    [1979] KLR 154
  • Raila Amolo Odinga & Another v IEBC & 2 others
    (2017) eKLR
  • Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others
    [2014] eKLR
  • Malawi Railways Ltd v Nyasulu
    [1998] MWSC 3
  • Libyan Arab Uganda Bank For Foreign Trade And Development & Anor v Adam Vassiliadis
    [1986] UG CA 6
  • Jones v National Coal Board
    [1957] 2 QB 55
Jurisdiction invoked
Constitution of Kenya, Article 63 (community land) and Articles 10, 29, 40, 42, 43, 47, 174 (alleged violations) - constitutional petition under Article 22/23

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, "Johnson Lesanyane Echwa & 11 others v County Government of Turkana & another [2020] KEELC 2196 (KLR)", Case Analysis (2020). Petition dated 5/11/2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2196/eng@2020-05-07

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