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ELCDismissedPetition dated 2nd October 2020 (Nakuru)· [2021] KEELC 4177 (KLR)

Patrick Karanja Mwahuki & 2 others v Governor Lee Kinyanjui & 2 others; Ngati Farmers Cooperative Society (Interested Party) [2021] KEELC 4177 (KLR)

Environment and Land Court
25 February 2021
5,129 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Nakuru's Environment and Land Court ruled that a county-appointed committee's report was only advisory, so residents could not have it declared unconstitutional or cancelled.

What this practically means

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Executive summary

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The three petitioners, farmers resident of Ng'ati Farm in Naivasha Sub County and members/shareholders of Ng'ati Farmers Cooperative Society Limited, petitioned against the Governor of Nakuru County, an Ad Hoc committee he appointed on 31st October 2018, and the County Government of Nakuru. They challenged the appointment of the committee under Article 159(2)(c) and the committee's report of 5th February 2020, whose recommendations included revocation of subdivision schemes and cancellation of titles, their arrest and prosecution, and asset recovery. They sought a declaration that the appointment and report were unconstitutional, null and void, plus certiorari to quash the report. The respondents and the interested party (Ngati Farm residents) justified the appointment as an ADR mechanism within devolved functions and asserted the petitioners were heard. The court framed four issues: jurisdiction, constitutionality of the appointment, whether the petitioners were heard, and whether reliefs should issue. It held the ELC had jurisdiction under Article 162 and Section 13 of the ELC Act; that the Governor acted within devolved functions and Article 159(2)(c) ADR mechanisms, and that the report's recommendations were not binding, hence the appointment was not unconstitutional; and that the petitioners were accorded an opportunity to be heard, appearing before the committee on three dates after a newspaper notice. The petition was dismissed with each party bearing its own costs.

Key legal issues

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01

Jurisdiction of the Environment and Land Court

Holding

The court has jurisdiction over the petition as it concerns conflicts within a land buying cooperative and land disputes with attendant property rights allegations

Reasoning

Under Article 162 and Section 13 of the ELC Act, the court has jurisdiction over environment and land matters including title to land and related fundamental rights. The petition concerns appointment of a committee to look into conflicts within a land buying cooperative society and land disputes, with allegations of infringement of the right to property, and therefore falls within the court's jurisdiction.

p. 4
02

Constitutionality of the Governor's appointment of the Ad Hoc Committee

Holding

The appointment was not unconstitutional; the Governor acted within devolved functions and Article 159(2)(c) ADR mechanisms, and the committee's report was merely recommendatory

Reasoning

Cooperative societies and county planning and development are devolved functions under Part 2 of the Fourth Schedule. The Governor did not purport to exercise judicial authority or the Co-operative Tribunal's jurisdiction; the report's recommendations have no binding effect and statutory entities would have to follow their own procedures before acting. Substance, not the Article 159(2)(c) label, controls.

p. 5
03

Whether the petitioners were accorded a fair hearing

Holding

The petitioners were accorded an opportunity to be heard

Reasoning

A public notice was published in the Nation newspaper on 6th January 2019 inviting stakeholders to submit memoranda, and the petitioners appeared before the committee on 16th January 2019, 1st February 2019 and 24th February 2019, with material including a picture placed before the court demonstrating their participation.

p. 5

Legal principles established

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  • A court cannot arrogate to itself jurisdiction exceeding that conferred by the Constitution or written law
  • Implicit in the right to a fair hearing is the right to know in advance the allegations against one and a reasonable opportunity for rebuttal
  • Substance rather than nomenclature governs whether a body purported to exercise judicial authority; non-binding recommendations do not amount to exercise of judicial power

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40, 42, 50(1), 69, 70, 159(1), 159(2)(c), 162, 176(1), 180, 186(1), Fourth Schedule
  • Cooperative Societies Act Cap 490Sections 76, 77, Part XV
  • County Government Act, 2012Sections 30(2)(a), 30(3), 31
  • Environment and Land Court Act, 2011Section 13

Cases cited (15)

  • County Government of Kiambu & Another vs. Senate & Another
    [2017] eKLR
  • Judicial Service Commission vs. Speaker of The National Assembly & 8 Others
    null
  • Evelyn College of Design Ltd vs. Director of Children’s Department & Another
    [2013] eKLR
  • SM vs. HGE
    [2019] eKLR
  • Third Alliance Kenya & Another v Head of the Public Service – Joseph Kinyua & 2 Others; Martin Kimani & 15 Others (Interested Parties)
    [2020] eKLR
  • Republic v National Police Service Commission Exparte Daniel Chacha Chacha
    [2016] eKLR
  • Kenya Revenue Authority vs. Menginya Salim Murgani
    Civil Appeal No. 108 of 2009
  • Russel vs. Duke of Norfolk
    [1949] 1 ALL ER at 118
  • Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 Others
    [2013] eKLR
  • Speaker of the Senate & Another v. Attorney General & 4 Others, Reference No. 2 of 2013
    [2013] eKLR
  • Anarita Karimi Njeru vs. The Republic
    (1976-1980) KLR 1272
  • Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • Daniel N Mugendi v Kenyatta University & 3 others
    [2013] eKLR
  • Evans Thiga Gaturu & another v Naiposha Company Ltd & 13 others
    [2017] eKLR
Jurisdiction invoked
Article 162 of the Constitution and Section 13 of the Environment and Land Court Act, 2011

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, "Patrick Karanja Mwahuki & 2 others v Governor Lee Kinyanjui & 2 others; Ngati Farmers Cooperative Society (Interested Party) [2021] KEELC 4177 (KLR)", Case Analysis (2021). Petition dated 2nd October 2020 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4177/eng@2021-02-25

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