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ELCPartially AllowedELC Petition No. 20 of 2019 (Lead File); ELC Petition No. 28 of 2019· [2021] KEELC 2735 (KLR)

Flamingo Horticulture Kenya Limited & 3 others v White Eagle Self Help Group & 5 others [2021] KEELC 2735 (KLR)

Environment and Land Court
24 June 2021
DOD. O. Ohungo
4,899 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court upheld private landowners' rights at Lake Naivasha, quashing a county assembly motion that opened access corridors without hearing them.

What this practically means

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Executive summary

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Two consolidated Environment and Land Court petitions, ELC Petition Nos. 20 and 28 of 2019 (Petition 20 the lead file), challenged the opening of corridors to Lake Naivasha through private parcels LR Nos. 10854/307, 10854/309 and 8266. The petitioners, registered leasehold proprietors, complained that members of the White Eagle Self Help Group, armed with a 10th July 2018 motion of the County Assembly of Nakuru compelling hotels to open public access corridors, invaded their land with graders and bulldozers to create access to the lake. They sought declarations of infringement of Articles 40 and 47, injunctions, quashing of the motion, damages for trespass and costs. A consent-directed County Surveyor's report found no public beach or corridor through the suit properties. The court held that the untarnished titles must be accepted as valid and the land was private land under Article 64, protected by Article 40 and Section 24 of the Land Registration Act. It found the assembly's motion was passed without any opportunity for the affected proprietors to be heard, breaching Articles 10, 21, 40, 47 and 50. It rejected the argument that the 2nd respondent county government could hide behind separation of powers, and held the certiorari prayer was not statute-barred since the Constitution imposes no time limit under Articles 22 and 23. Both petitions were allowed: declarations issued, permanent injunctions granted, the 10th July 2018 motion declared unlawful and quashed by certiorari, and costs awarded to the petitioners.

Key legal issues

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01

Whether a public access corridor exists through the suit properties

Holding

No public access road or corridor exists through the suit properties, confirmed by the titles, deed plans and the county surveyor's report

Reasoning

The court perused the titles and deed plans, which delineated no easement or access. Pursuant to a consent, the County Surveyor visited the site and reported there was no public beach or corridor between the parcels. The court accepted this evidence over the respondents' claims of historical access.

p. 4
02

Whether the petitioners' rights to property and fair administrative action were violated

Holding

Yes - the motion was passed without any opportunity for the petitioners to be heard, violating Articles 40, 47 and 50 read with Articles 10 and 21

Reasoning

The county assembly, as a creature of the constitution, is bound by Article 10 national values and Article 40 protections. Affected registered proprietors ought to have been heard before passage of a motion with far-reaching adverse consequences, e.g. by inviting memoranda. Engagement occurred only after passage, focused on implementation.

p. 5
03

Whether the certiorari prayer is statute barred under section 9(3) of the Law Reform Act and Order 53 rule 2

Holding

No - the petition is brought under Article 22(1), and the Constitution imposes no time limit on certiorari in constitutional petitions

Reasoning

Reliefs in constitutional petitions under Article 23(3) include judicial review orders. Since the Constitution itself sets no limitation, a statutory provision cannot be used to curtail an express constitutional entitlement. The objection by the 5th respondent failed.

p. 5
04

Whether the 2nd respondent (County Government of Nakuru) could distance itself from the assembly's motion

Holding

No - there is only one county government with two arms, and the motion on its face was to be implemented by the county government

Reasoning

Article 176(1) establishes county governments consisting of a county assembly and a county executive. The separation of powers argument did not absolve the 2nd respondent since the motion expressly directed implementation through the county government's department of Planning, Trade and Tourism.

p. 5

Legal principles established

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  • Unt nullified registered titles must be accepted as valid, and leasehold titles render land private land protected under Article 40
  • County assemblies are bound by Article 10 national values and must afford affected persons an opportunity to be heard before passing motions with far-reaching adverse consequences on their rights
  • No statutory limitation period applies to certiorari sought in a constitutional petition under Articles 22 and 23, and a statutory provision cannot curtail an express constitutional provision
  • There is one county government comprising the county assembly and county executive, so separation of arms does not absolve the county government from liability for the assembly's motion

Court orders

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  1. 1.In Petition No. 20 of 2019, declaration that the petitioners' rights to protection of property, fair administrative action and fair hearing were infringed
  2. 2.In Petition No. 20 of 2019, declaration that as between the parties proprietary rights in LR No. 10854/307 and 309 belong to the petitioners free from interference except as provided by law
  3. 3.In Petition No. 20 of 2019, permanent injunction restraining the respondents from occupying, trespassing, encroaching, utilising or interfering with LR No. 10854/307 and 309 save as provided by law
  4. 4.In Petition No. 28 of 2019, declaration that there is no public access road to the Lake Naivasha water front cutting through the petitioner's property
  5. 5.In Petition No. 28 of 2019, permanent injunction restraining the respondents from trespassing on, encroaching, wasting or alienating LR No. 8266 Naivasha
  6. 6.In Petition No. 28 of 2019, declaration that the County Assembly of Nakuru motion of 10th July 2018 is unlawful and unconstitutional for violating Articles 40 and 47
  7. 7.In Petition No. 28 of 2019, order of certiorari quashing the resolution/motion passed by the County Assembly of Nakuru on 10th July 2018
  8. 8.Petitioners in the respective petitions to have costs of the respective petitions

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1(3)(b), 2, 10, 21, 22(1), 23(3), 40, 40(1), 40(3), 47, 47(1), 50, 61(1), 64, 66(1)(2), 67, 69(1)(2), 159(2)(d), 176(1), 185
  • Land Registration ActSection 24
  • Law Reform ActSection 9(3)
  • Civil Procedure Rules, 2010Order 53 rule 2

Cases cited (8)

  • Ereri Company Ltd v Cornerstone Preparatory Association & Another
    [2016] eKLR
  • Susan Mumbi vs Kefala Grebedhin
    Nairobi HCCC No. 332 of 1993
  • Jackson Kariuki Kahungura & Another v John Karanja Kihagi & 5 others
    [2018] eKLR
  • Mohammed Sheria & 2 others v Simon Kipkorir Sang & 5 others
    [2018] eKLR
  • Abdul Samji Mohamed and another v Abdul Wadood Haidara
    [1972] eKLR
  • Salim Addalla Bakshuwein v Minister of Transport and Infrastructure and 3 others
    [2004] eKLR
  • Vivian Muia v Mzoori Limited
    [2017] eKLR
  • County Council of Nandi vs. Ezekiel Kibet Rutto & 6 Others
    [2013] eKLR
Jurisdiction invoked
Articles 22(1) and 23(3) of the Constitution of Kenya, 2010 (enforcement of Bill of Rights); Environment and Land Court jurisdiction

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, "Flamingo Horticulture Kenya Limited & 3 others v White Eagle Self Help Group & 5 others [2021] KEELC 2735 (KLR)", Case Analysis (2021). ELC Petition No. 20 of 2019 (Lead File); ELC Petition No. 28 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2735/eng@2021-06-24

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