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ELCOtherPetition dated July 19, 2021 (filed July 23, 2021)· [2022] KEELC 33 (KLR)

Okoiti v Parliament of Kenya & 6 others (Petition 33 of 2021) [2022] KEELC 33 (KLR)

Environment and Land Court
23 March 2022
LNL.L. Naikuni
15,197 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~61 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed residents can sue counties over disputed boundary taxation, but must first take their land and boundary complaints to the National Land Commission.

What this practically means

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Executive summary

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The petitioner, an activist acting for 178 residents of Taita Taveta County, petitioned the Environment and Land Court at Mombasa seeking declarations that double taxation of traders in Mackinnon Road and Mtito Andei towns violates articles 40(3) and 47(1) of the Constitution, and orders compelling Parliament to establish an independent commission to resolve the county boundary disputes with Kwale and Makueni and the National Executive to survey and erect boundary beacons. The respondents and interested parties raised preliminary objections contending that the dispute was intergovernmental, that the petitioner had not exhausted the dispute-resolution mechanisms under article 189(3) and (4) of the Constitution and sections 30-35 of the Intergovernmental Relations Act, and that boundary matters fall to the IEBC. Naikuni J held that the objections were pure points of law, but that the dispute is between individuals and county governments, not an intergovernmental dispute, so the exhaustion doctrine under the Intergovernmental Relations Act does not apply and the ELC has original and unlimited jurisdiction - hence the preliminary objection was disallowed. However, the court found that neither the IEBC nor the National Executive may alter county boundaries, and that boundary demarcation and claims of historical land injustice should in the meantime be channelled to the National Land Commission under article 67(2)(e) and section 15 of the National Land Commission Act. The court declined to assume jurisdiction in the first instance, stayed the proceedings for six months, directed the petitioner to lodge a formal complaint with the NLC, required the NLC Chairman and Secretary to file a report, issued interim orders designating the Taita Taveta County Government as the sole revenue collector in the two disputed towns with revenues deposited into joint accounts, and made no order as to costs.

Key legal issues

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01

Whether the preliminary objections were pure points of law

Holding

The objections raised serious and pure issues of law properly determinable at the preliminary stage

Reasoning

Applying Mukisa Biscuits, a proper preliminary objection constitutes a pure point of law argued on the assumption that all facts pleaded by the other side are correct. The court found the objections were not fanciful nor remote and proceeded to consider them.

p. 18
02

Whether the dispute is an intergovernmental dispute requiring exhaustion under the Intergovernmental Relations Act

Holding

No - the petition is brought by an individual and 178 residents in their individual capacities complaining of double taxation and harassment, not a dispute between governments

Reasoning

Sections 30-35 of the Intergovernmental Relations Act apply only to disputes between the national government and a county government or amongst county governments. The petitioners do not represent any government and have no standing to invoke article 189 mechanisms, so the exhaustion doctrine does not apply to them.

p. 26
03

Whether the ELC has jurisdiction over the petition

Holding

Yes - under article 162(2)(b) and the land statutes the ELC has original and unlimited jurisdiction; the objection on jurisdiction was dismissed

Reasoning

Although the court endorsed the exhaustion doctrine in general, it found exceptions where no intergovernmental dispute exists. The dispute between individuals and three county governments over boundary-driven double taxation and land matters falls within the ELC's unlimited original jurisdiction, so the suit is properly before the court.

p. 27
04

Whether the dispute affects delimitation of electoral boundaries under article 89 reserved for the IEBC

Holding

No - the dispute concerns demarcation and confirmation of county boundaries, not delimitation of constituencies and wards; neither the IEBC nor the National Executive can alter county boundaries

Reasoning

Article 89 concerns delimitation of electoral units by the IEBC, while article 188 deals exclusively with altering county boundaries via a resolution recommended by an independent commission set up by Parliament. The issue before the court is demarcation and confirmation of county boundaries, which falls under neither the IEBC's mandate nor the Executive's.

p. 30
05

Whether there is an alternative forum for the dispute

Holding

Yes - the National Land Commission under article 67(2)(e) of the Constitution and section 15 of the National Land Commission Act is the proper forum for historical land injustices and boundary investigation

Reasoning

Relying on County Government of Isiolo and Ledidi Ole Tauta, the court held that issues of demarcation of boundaries and historical injustices should be channelled to and resolved by the National Land Commission, which alone has the mandate to investigate historical land injustices and recommend redress.

p. 32

Legal principles established

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  • The Intergovernmental Relations Act dispute-resolution framework under article 189(3) and (4) applies only to disputes between governments (national vs county, or amongst counties), not to disputes between individuals and county governments
  • The IEBC has no power to alter county boundaries; only an independent commission set up by Parliament under article 188 can do so, and the National Executive has no role in altering or demarcating county boundaries
  • Claims of county boundary demarcation and historical land injustices should in the meantime be channelled through the National Land Commission under article 67(2)(e) and section 15 of the National Land Commission Act

Court orders

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  1. 1.The court has original and unlimited jurisdiction under article 162(2)(b) of the Constitution and the land statutes to hear and determine the issues raised, hence the preliminary objection on jurisdiction is disallowed for being unmeritorious
  2. 2.The instant proceedings are stayed for a period of six (6) months from the date of the ruling
  3. 3.The petitioner is directed to immediately serve the orders upon the National Land Commission and lodge a formal complaint to enable the Commission to initiate investigations into the historical injustices and the county boundary dispute and prepare a detailed report with recommendations on appropriate redress
  4. 4.The petitioner is directed to extract and serve the orders upon the National Land Commission within seven (7) days from the date of the ruling
  5. 5.The Chairman and Secretary of the National Land Commission are directed to file a comprehensive report on the three-county boundaries with recommendations and appropriate redress within seven (7) days after its preparation for adoption by the court
  6. 6.Interim orders appointing/authorising the County Government of Taita Taveta to be the sole authority issuing business permits and levying county taxes in Mackinnon Road Town, depositing all revenues into an interest-earning joint account with the County Government of Kwale, for six (6) months
  7. 7.Interim order appointing the County Government of Taita Taveta to be the sole authority issuing business permits and levying county taxes in Mtito Andei Town, depositing all revenues into an interest-earning joint account with the County Government of Makueni
  8. 8.The matter to be mentioned on October 10, 2021 (as stated in the order) for compliance by the National Land Commission, ascertainment of progress and further directions
  9. 9.No orders as to costs
Jurisdiction invoked
Article 162(2)(b) of the Constitution, read with sections 3 and 13 of the Environment and Land Court Act (No. 19 of 2011), section 150 of the Land Registration Act (No. 3 of 2012) and section 101 of the Land Act (No. 6 of 2012)

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, "Okoiti v Parliament of Kenya & 6 others (Petition 33 of 2021) [2022] KEELC 33 (KLR)", Case Analysis (2022). Petition dated July 19, 2021 (filed July 23, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/33/eng@2022-03-23

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