Okiya Omtatah Okoiti & 3 others v Ministry of Lands and Physical Planning & 4 others [2021] KEELC 1580 (KLR)
The bottom line
#Kenya's Environment and Land Court ordered fresh compensation processes for Ndeiya landowners whose land was wrongly gazetted as public grazing area for the SGR.
What this practically means
#Executive summary
#Key legal issues
#Locus standi
Petitioners have locus standi under Articles 22 and 258 despite lacking proprietary interest or formal authority from the Ndeiya Land Owners.
Articles 22 and 258 generously permit any person, including a person acting on behalf of others or in the public interest, to institute proceedings claiming breach of the Bill of Rights or the Constitution. No authority from the beneficiaries nor proprietary interest is required. Applying the cited authorities, the Court held the Petitioners, suing on behalf of Ndeiya Land Owners, were properly vested with standing.
Proprietary rights
Ndeiya Land Owners hold proprietary interest in the schemes collectively gazetted as Kiambu Western Grazing area.
The County Government, successor to the defunct council, did not controvert the allegations of allocation. Allocation cards, letters and title deeds were produced, and a County Secretary letter referred to identifying and verifying allottees. The Interested Party confirmed surveying the schemes and releasing maps, confirming the grazing area is in fact the subdivided schemes privately allotted in the 1990s.
Violation of rights
Landowners were denied a hearing, consultation and prompt compensation in the compulsory acquisition, and their Article 47 rights to fair administrative action were violated.
Following the compulsory acquisition procedure in the Land Act as set out in Patrick Musimba, affected landowners must be served with notices of inquiry and compensated promptly and fully. Because the land was gazetted collectively as unowned grazing area, the allottees were never heard, served or compensated. Failure to remit survey maps for registration also breached Article 47.
Relief
All four prayers sought were merited and granted.
Having found proprietary interest and violation of rights, the Court held the orders sought were reasonable. Submission of the subdivision maps to the Director of Survey would rectify the registry, and the acquisition process would then have to be re-addressed against individual parcels rather than the collective grazing area, with the County Government free to verify documents.
Legal principles established
#- Articles 22 and 258 of the Constitution allow any person to institute proceedings on behalf of others without proprietary interest or authority from those persons.
- In compulsory acquisition, landowners with proprietary interest must be identified, heard and paid prompt and just compensation under Article 40(3) and the Land Act.
- Persons affected by administrative action are entitled to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair under Article 47(1).
Court orders
#- 1.An order quashing the reference in the undated Kenya Gazette Notice No. 12526 published on 22nd December 2017 to the 146.8878 hectares parcel of land as Kiambu Western Grazing area
- 2.An order compelling the National Land Commission to issue a new Gazette Notice of the acquisition of the land indicating the individual owners of the parcels erroneously referred to collectively as Kiambu Western Grazing area, to be issued within 30 days of the judgment
- 3.An order compelling Kiambu County Government to, within 7 days of the judgment, release Ndeiya Subdivision maps and scheme plans for Nachu/Mikuyuini, Nachu/Ndacha, Nguirubi/Thigio and Nguruibi/Ndiuni to Survey of Kenya for the updating of the National land maps
- 4.An order compelling the National Land Commission to make prompt, full, fair and immediate compensation of all persons affected by the SGR Phase 2A
- Jurisdiction invoked
- Articles 22, 23, 40, 47 and 258 of the Constitution of Kenya, 2010 (enforcement of Bill of Rights)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okiya Omtatah Okoiti & 3 others v Ministry of Lands and Physical Planning & 4 others [2021] KEELC 1580 (KLR)", Case Analysis (2021). Petition dated 10th July 2019 (Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1580/eng@2021-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.