Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedELC Judicial Review No. 1 of 2020· [2021] KEELC 3414 (KLR)

Republic v Ministry of Lands and Physical Planning & another Ex parte Tom Oriedo Owuor [2021] KEELC 3414 (KLR)

Environment and Land Court
30 April 2021
AOAntony Ombwayo
2,062 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's High-level court ordered the Ministry of Lands to survey and resettle the Koguta Community after a century-old lease expired, showing communities can enforce NLC decisions.

What this practically means

#

Executive summary

#
The ex parte applicant, Tom Oriedo Owuor, chairman of the Koguta Land Reclamation Committee, moved the Environment and Land Court at Kisumu by Notice of Motion dated 17th February 2020 seeking an order of mandamus compelling the Ministry of Lands and Physical Planning to plan, survey and resettle the Koguta Community on land parcels L.R. Nos. 3977 and 3978 in Muhoroni Sub-County, Kisumu County. The community claimed historical land injustices dating from 1968, when it was forcibly evicted by Nyando Sugar Company (now Muhoroni Sugar Company) in conjunction with the government. In 2013 the community lodged a complaint with the National Land Commission, which after investigations issued a determination gazetted on 1st March 2019 (Vol. CXXI-No. 27) restoring the parcels to the community and recommending that the Privatisation Commission and the Ministry assist in planning, surveying and resettlement. Despite the gazettement, the respondents failed to act. The court found no contention that the NLC in case NLC/HCI/045/2017 allowed the claim. On the lease evidence, the 1912 lease to non-citizen proprietors was limited by Article 65 of the Constitution to 99 years and expired in 2012, reverting the land to the state and making it available for allocation by the NLC in consultation with the County Government. The court held the mandamus application well placed and ordered the 1st Respondent to plan, survey and resettle the Koguta Community forthwith, with costs to the applicants.

Key legal issues

#
01

Whether mandamus lies to compel the Ministry of Lands to implement the NLC's determination

Holding

The court found the application for mandamus well placed given the expired lease and the community's residence on the land.

Reasoning

The court noted there was no contention that the NLC in complaint NLC/HCI/045/2017 allowed the Koguta Community's claim and recommended planning, surveying and resettlement with the assistance of the Privatisation Commission and the Ministry. The lease, issued in 1912 for 999 years to non-citizens, was limited by Article 65 to 99 years and expired in 2012, reverting the land to the state for allocation in consultation with the County Government. The community's continued residence and the Ministry's inaction justified mandamus.

p. 3

Legal principles established

#
  • A lease held by non-citizens that exceeds the constitutional maximum of 99 years reverts to the state and becomes available for allocation by the National Land Commission.

Court orders

#
  1. 1.An order of mandamus compelling the 1st Respondent to plan, survey and resettle the Koguta Community members on land parcels LR. No. 3977 and LR. No. 3978 located within Kisumu County forthwith
  2. 2.Costs to the applicants

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 65
  • Fair Administrative Actions ActNo. 4 of 2015
  • National Land Commission ActNo. 5 of 2012
  • Land ActNo. 6 of 2012
  • Physical Planning ActCap 296
  • Environment and Land Court Act2012
  • Land Registration ActNo. 3 of 2012
  • Law Reform ActSection 8, Cap 26
  • Civil Procedure RulesOrder 53 Rule 1
  • Government Lands Ordinancelease of 19/11/1912
Jurisdiction invoked
Section 8 of the Law Reform Act Cap 26 and Order 53 Rule 1 of the Civil Procedure Rules 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v Ministry of Lands and Physical Planning & another Ex parte Tom Oriedo Owuor [2021] KEELC 3414 (KLR)", Case Analysis (2021). ELC Judicial Review No. 1 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3414/eng@2021-04-30

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