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ELCPartially AllowedConstitutional Petition No. E005 of 2021· [2022] KEELC 1241 (KLR)

Cheub Adan Ali & 3 others v Community Land Registrar North Eastern Region- Mandera & 2 others [2022] KEELC 1241 (KLR)

Environment and Land Court
25 February 2022
ECE.C. CHERONO
5,190 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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Kenya's Environment and Land Court ruled the Community Land Registrar acted unlawfully by cancelling Murule community elections without giving written reasons, validating the elections.

What this practically means

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Executive summary

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The four petitioners, members of the Murule Community, sought to register their community under the Community Land Act, 2016. After filing Form CLA1 on 18th May 2021, the 1st Respondent, Community Land Registrar, invited the community to a public meeting on 26th May 2021 at Lafey CDF Hall to elect a Community Land Management Committee, presided over by an Assistant County Commissioner appointed by the Registrar. Fifteen members were elected and four executive officers chosen. On the same day, the 1st Respondent advertised a notice cancelling the meeting, giving no reasons. The Registrar justified the cancellation by reference to an objection letter from the County Government of Mandera, which claimed to be custodian of unregistered community land based on constituencies rather than tribal communities, and cited ongoing inter-community arbitration. The petitioners sued, alleging violation of Articles 10, 36, 40, 47, 56, 61 and 63. The court held the petition met the Anarita Karimi Njeru precision threshold; that the cancellation breached Article 47 and the Fair Administrative Action Act because no reasons were given in the notice and the reasons were only raised in court as an afterthought; that constituencies are administrative entities which do not meet the statutory definition of a community; and that community registration under Section 7 precedes land recognition and adjudication under Section 8, so the inventory objection was misplaced. The court declared the cancellation unconstitutional, null and void, quashed it, validated the elections, and awarded costs against the 1st Respondent. Damages were not canvassed, and mandamus and prohibition were refused as premature.

Key legal issues

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01

Whether the petition met the Anarita Karimi Njeru threshold of precision

Holding

The petition met the threshold as it specifically pleaded the articles violated, the nature of the violation and the prayers sought

Reasoning

Applying Anarita Karimi Njeru and Mumo Matemu, the court found the petitioners had outlined violations of Articles 10, 40 and 47, pleaded the nature of the violation and particularised it, satisfying the requirement of reasonable precision in constitutional petitions.

p. 4
02

Whether the cancellation of the election meeting violated the petitioners' rights under Article 47

Holding

Yes. The notice cancelling the meeting was issued without reasons, on the same day as the meeting, and reasons were only presented in court

Reasoning

The 1st Respondent participated in the entire process without raising doubts about the community's authenticity, then cancelled the meeting by a notice that gave no reasons. Written reasons were only advanced in litigation, which the petitioners characterised as an afterthought. This breached Article 47 and Section 5 of the Fair Administrative Action Act.

p. 7
03

Whether the County Government could validly base registration on constituencies rather than communities

Holding

No. Constituencies do not meet the definition of a community in Section 2 of the Community Land Act, and no evidence of a lawful process creating constituency-based community lands was presented

Reasoning

The court held that while the respondents' desire to build cohesion was appreciated, their mandate under the Act is defined and the procedure set out. They could not unilaterally distribute land into constituencies, and produced no minutes, notices, advertisements or cadastral maps evidencing such a recognition process.

p. 7
04

Whether the petitioners are entitled to the land they claim

Holding

Not at this stage; recognition and adjudication under Section 8 has yet to be conducted

Reasoning

The court found the registration of the community under Section 7 valid, but entitlement to the land requires the Section 8 identification process of notices, survey and a cadastral map undertaken with the County Government. Granting land interest orders would be premature.

p. 7

Legal principles established

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  • A constitutional petitioner must plead with reasonable precision the provisions infringed and the manner of infringement
  • Under the Community Land Act the process is two-tier: registration of the community precedes recognition and adjudication of the land
  • Constituencies are administrative entities and do not meet the statutory definition of a community under Section 2 of the Community Land Act
  • Administrative action adversely affecting a person must be lawful, procedurally fair and supported by written reasons communicated to the affected party

Court orders

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  1. 1.A declaration that the Respondents' actions in cancelling the petitioners' meeting electing the Community Land Management Committee infringed the petitioners' legitimate expectation
  2. 2.A declaration that the petitioners' fundamental rights and freedoms under Articles 10(1)(c), 10(2)(a)(b)(c)(d), 36(1)(2)(3), 40(3), 47, 56, 61 and 63 of the Constitution were contravened
  3. 3.A declaration that the 1st Respondent's notice dated 26th May 2021 cancelling the meeting is unconstitutional, illegal, null and void ab initio
  4. 4.An order of Certiorari quashing the 1st Respondent's cancellation notice dated 26th May 2021
  5. 5.An order declaring the elections held on 26th May 2021 electing the Murule Community Land Management Committee to be valid
  6. 6.Costs of the petition to be borne by the 1st Respondent

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 2(1), 3(1), 10(1)(c), 10(2)(a)(b)(c)(d), 22(1), 23(1), 23(3)(e), 27(1)(2), 28, 36(1)(2)(3), 39, 40(1)(3), 47(1)(2), 56, 61(1)(2), 63(1), 165, 258, 259, 260, 19(1)
  • Fair Administrative Action Act, No. 4 of 2015Sections 1, 2, 3(1)(a)(c), 5, 7
  • Community Land Act, No. 27 of 2016Sections 2, 3, 4, 6, 7, 8, 12, 15
  • Community Land Regulations, 2017Regulations 5, 7, 8(5)(b), 12(3), 18
  • Interpretation and General Provisions ActSection 48
  • The Special Districts (Administration) Act, Cap 105 (repealed)

Cases cited (12)

  • Anarita Karimi Njeru vs Republic
    (1979) eKLR
  • Mumo Matemu vs Trusted Society of Human Rights Alliance and 5 Others
    (2013) eKLR, Civil App. 290/2012
  • Kenya Human Rights Commission vs Non-Governmental Organizations Coordination Board [2016]
    eKLR
  • Kenya Human Rights Commission & another v Non-Governmental Organizations Co-ordination Board & another [2018]
    eKLR
  • Judicial Service Commission v Mbala Mutava & Another [2014]
    eKLR
  • Attorney General v Kituo Cha Sheria & 7 Others [2017]
    eKLR
  • Commission on Administrative Justice vs Kenya Vision 2030 Delivery Board & 2 others [2019]
    eKLR
  • Kingdom Kenya 01 Limited versus the District Land Registrar, Narok & Fifteen (15) Others [2018]
  • Kenya National Examination Council versus Republic Exparte Geoffrey Gathenji Njoroge & 9 Others
  • Communications Commission of Kenya & 5 Others vs Royal Media Services Ltd & 5 others [2014]
    eKLR
  • Mohammed Hussein Yakub & 5 others v County Government of Mandera & 5 Others [2020]
    eKLR
  • Ali Hussein Maalim and 5 Others vs CS Lands, County Government of Mandera and the Hon Attorney General, Petition No. E005 of 2021
Jurisdiction invoked
Articles 22(1), 23(1) and 165 of the Constitution of Kenya 2010 (constitutional petition on fundamental rights and community land)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Cheub Adan Ali & 3 others v Community Land Registrar North Eastern Region- Mandera & 2 others [2022] KEELC 1241 (KLR)", Case Analysis (2022). Constitutional Petition No. E005 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1241/eng@2022-02-25

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