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ELCDismissedConstitutional Petition No. E003 of 2021· [2021] KEELC 232 (KLR)

Ali Maalim Dahir v Mandera County Government & 2 others; Ibrahim Adan Mohammed & 5 others (Interested Parties) [2021] KEELC 232 (KLR)

Environment and Land Court
17 December 2021
ECE.C. Cherono
3,496 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a landowner's challenge, finding he was given a fair chance to be heard before his land certificate was cancelled.

What this practically means

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Executive summary

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The petitioner, claiming ownership of Farm 46 in Lag Warera, Takaba, on the strength of an allotment letter from the defunct County Council of Mandera and a Certificate of Land Ownership No. MCG/TKB/029/2019 issued by the County Government of Mandera, challenged the cancellation of that certificate by the 2nd Respondent's letter dated 8th May 2020. He sought declarations that the cancellation was unconstitutional and null and void under Articles 40, 47 and 50, together with an order reinstating the certificate and costs. The respondents and the six interested parties countered that the petitioner never owned the farm, alleging he altered a plot receipt to claim ownership, that records showed Farm 46 belonged to Abdullahi Eldin Gede, and that the petitioner appeared before a lands committee and community elders' meetings which found his documents forged. The court framed the sole issue as whether the petitioner's rights under Articles 47 and 50 were violated. Examining the minutes of the meetings of 16th February, 2nd May and 4th May 2020, the judge found the petitioner was listed as a complainant, attended and presented documents for verification, and was later informed of the decision by letter. Although the CECM's re-deliberation was declared a nullity because its members were not members of the Community Assembly, it only confirmed the community assembly's decision, which the petitioner never moved to set aside under Section 42 of the Community Land Act. The petition was dismissed with costs.

Key legal issues

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01

Whether the cancellation of the petitioner's certificate of land ownership violated Articles 47 and 50 of the Constitution

Holding

The petitioner's rights under Articles 47 and 50 were not infringed; he was accorded a fair hearing before the community assembly and committee processes

Reasoning

The court found that minutes of meetings of 16/2/2020, 2/5/2020 and 4/5/2020 showed the petitioner was listed as a complainant, appeared before the committee, testified and presented his documents for verification. Although absent at the final determination of 4/5/2020, a letter dated 8/5/2020 was sent informing him of the decision. The CECM's re-deliberation was a nullity as its members were not community assembly members, but it merely confirmed the community assembly's decision, which the petitioner never sought to set aside or review under Section 42 of the Community Land Act.

p. 5
02

The validity of the CECM's re-deliberation of the matter

Holding

The CECM's re-deliberation was a nullity since those present were not members of the Community Assembly, but it amounted only to confirmation of the community assembly's earlier decision

Reasoning

The court held that the CECM Lands, Housing and Physical Planning lacked competence to re-deliberate because its membership did not comprise members of the Community Assembly as required by Section 15 of the Community Land Act. However, since the decision had already been made by the community assembly on 16/2/2020 and was merely awaiting endorsement, the CECM could only confirm it, and there was nothing untoward with the resulting determination.

p. 5

Legal principles established

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  • A person facing adverse administrative action is constitutionally entitled to be heard; failure to accord a hearing renders the action unconstitutional, null and void
  • County governments hold unregistered community land in trust for communities under Section 6 of the Community Land Act

Court orders

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  1. 1.The petition is dismissed
  2. 2.Costs of the petition are awarded to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 19, 20, 21, 22, 23, 40, 47, 50, 162(2)(b)
  • Community Land ActSections 6, 15, 39, 40, 42
  • Fair Administrative Action ActSection 2

Cases cited (5)

  • Kenya Human Rights Commission & another v Non-Governmental Organizations Co-ordination Board & another
    [2018] eKLR
  • Ngoingwa Company Limited v National Land Commission & 2 Others
    [2021] eKLR
  • Sabina Nyambura Githina & Another v Land Registrar, Thika Land Registry & 3 others; Real Capital Ltd (Interested Party)
    [2021] eKLR
  • Alice Chemutai Too v Nickson Kipkurui Korir & 2 Others
    [2015] eKLR
  • Elijah Makeri Nyangwara vs Stephen Mungai Njuguna & Anor
    Eldoret Elc case No. 609 B of 2012
Jurisdiction invoked
Articles 22, 23 and 162(2)(b) of the Constitution of Kenya, 2010 - enforcement of the Bill of Rights in land and environment matters

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, "Ali Maalim Dahir v Mandera County Government & 2 others; Ibrahim Adan Mohammed & 5 others (Interested Parties) [2021] KEELC 232 (KLR)", Case Analysis (2021). Constitutional Petition No. E003 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/232/eng@2021-12-17

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