Muthara Njuri Ncheke Council of Elders & another v Committee of Ngaremara/Gambella Adjudication Section Thro’ & 3 others [2022] KEELC 1250 (KLR)
The bottom line
#Kenya's Environment and Land Court cancelled a land adjudication extension in Meru because officials excluded the local community from the process.
What this practically means
#Executive summary
#Key legal issues
#Legality of the corrigendum dated 29.6.2018
The corrigendum was invalid: it did not define the adjudication area as required by Section 5 of the Land Adjudication Act, involved no public participation, and could not operate retrospectively.
Section 5(1) of the Land Adjudication Act requires a notice defining as clearly as possible the adjudication area, published with public participation. The corrigendum lacked a definition of the area, the County Government (custodian of unregistered community land) was not consulted, and the respondents' annextures all pre-dated the corrigendum and referred to the original 2016 notice. Nothing was later adduced to cure these defects.
Public participation
The publication of the corrigendum and the subsequent demarcation breached Article 10's value of public participation.
Article 10 national values bind all state officers when implementing policy and law. The respondents produced no minutes showing community involvement in the corrigendum process, the annextures were unauthenticated by the Deputy County Commissioner, and committee members were appointed without involving area residents, undermining the credibility and legality of the process.
Interaction of the Community Land Act with the Land Adjudication Act
The two statutes complement each other; adjudication of community land under the Land Adjudication Act must respect the Community Land Act's mechanisms.
The court noted the Community Land Act commenced on 21.9.2016 and cannot act retrospectively on the 2016 declaration, but given Section 23(3) of the Land Adjudication Act, the two statutes are to be interpreted as complementing each other, and community land interests must be recognised in adjudication.
Locus and capacity of petitioners
The petitioners, as members of the affected community, had capacity under Articles 22 and 258 to sue on behalf of over 10,000 residents.
Article 22(3) permits proceedings in person or on behalf of a group or class of persons in which the applicant is a member or in the public interest, and Article 258 allows similar standing for constitutional contravention claims. The petitioners demonstrated both private and public interest in the suit land.
Legal principles established
#- Public participation must be involved at every step of the land adjudication process.
- The validity of a statutory notice is judged on its content at the outset, not by subsequent evidence.
- A corrigendum cannot operate retrospectively to validate a defective notice.
Court orders
#- 1.Declaration that Muthara, Amuthumba/Ngaremara ranching area is separate and distinct from the Ngaremara/Gambella adjudication section.
- 2.Declaration that the 1st, 2nd and 3rd respondents' extension of the adjudication process through the corrigendum of 29.6.2018 was illegal, ultra vires, unconstitutional, null and void and infringed the petitioners' rights under Articles 40(1), 40(3), 43, 60, 61, 62 and 63 of the Constitution.
- 3.Nullification and cancellation of the adjudication process, demarcations and subdivisions of the ranching area following the corrigendum dated 29.6.2018, with a fresh adjudication process to be commenced with public participation in strict adherence to the Land Adjudication Act.
- 4.No orders as to costs.
- Jurisdiction invoked
- Articles 22(2)(d), 22(3), 23 and 258 of the Constitution of Kenya, 2010 (enforcement of fundamental rights and freedoms)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthara Njuri Ncheke Council of Elders & another v Committee of Ngaremara/Gambella Adjudication Section Thro’ & 3 others [2022] KEELC 1250 (KLR)", Case Analysis (2022). Petition dated 8.4.2019 (Meru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1250/eng@2022-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.