Mohammed Hussein Yakub & 5 others v County Government of Mandera & 5 others [2020] KEELC 3505 (KLR)

Article 22 allows every person to institute proceedings claiming breach of a right, and Article 258 allows proceedings claiming constitutional contravention, including by persons acting in the public interest or in the interest of a group. The Supreme Court in Mumo Matemu confirmed that the 2010 Constitution enlarged standing. Failure to be a member of a registered community does not bar a constitutional petition alleging infringement of property rights under Article 40.

Article 63(2)(d) includes land lawfully held, managed or used by specific communities, such as grazing areas, and Article 63(3) requires unregistered community land to be held in trust by county governments. Under the repealed Constitution and Trust Land Act, unadjudicated trust land belonged to local communities. The 1st Respondent did not dispute the land was used for grazing and adduced no evidence of set-aside as public land.

Section 22 of the Community Land Act permits conversion of community land to public land only through compulsory acquisition, transfer or surrender. The respondents tendered no evidence that any of these statutory processes was followed, nor that the affected community was involved or compensated. Section 6(8) forbids county governments from disposing of unregistered community land held in trust.

Public participation is a national value under Article 10. The 1st Respondent tendered only questionnaires as evidence of participation, which the court held insufficient; minutes of meetings with the affected community would be required. The petitioners only learned of the project through the tender advertisement, confirming the absence of meaningful engagement.