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ELCPartially AllowedPetition dated 8.4.2019 (Meru ELC)· [2022] KEELC 1250 (KLR)

Muthara Njuri Ncheke Council of Elders & another v Committee of Ngaremara/Gambella Adjudication Section Thro’ & 3 others [2022] KEELC 1250 (KLR)

Environment and Land Court
23 February 2022
6,926 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The petitioners, a community based organization and a council of elders suing on behalf of over 10,000 residents and indigenous people of Muthara, Amuthumba and Ngaremara in Tigania East, Meru County, challenged a corrigendum notice dated 29.6.2018 that extended the Ngaremara/Gambella adjudication section to cover their communally occupied ranching area. They alleged the extension was done without notice, gazetttement, definition of boundaries, committee appointment or public participation, contrary to the Land Adjudication Act (Cap 284) and Articles 10, 40, 60, 61 and 63 of the Constitution, and was aimed at benefiting speculators ahead of the LAPSET corridor compensation. The 2nd respondent defended the process as duly publicised through barazas with an all-inclusive committee; the 1st respondent (elected committee chairman) supported the petitioners, alleging he was sacked for objecting to illegalities. The court framed five issues centred on the legality of the corrigendum and public participation. Holding that the corrigendum did not define the area as required by Section 5 of Cap 284, was published without consultation with the County Government as custodian of unregistered community land, and could not operate retrospectively, the court found breaches of the petitioners' rights. It declared the ranching area distinct from the adjudication section, declared the extension illegal, ultra vires, unconstitutional, null and void, nullified the demarcations and ordered a fresh adjudication with public participation, with no orders as to costs.

Key legal issues

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01

Legality of the corrigendum dated 29.6.2018

Holding

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.

Reasoning

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.

p. 8
02

Public participation

Holding

The publication of the corrigendum and the subsequent demarcation breached Article 10's value of public participation.

Reasoning

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.

p. 9
03

Interaction of the Community Land Act with the Land Adjudication Act

Holding

The two statutes complement each other; adjudication of community land under the Land Adjudication Act must respect the Community Land Act's mechanisms.

Reasoning

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.

p. 8
04

Locus and capacity of petitioners

Holding

The petitioners, as members of the affected community, had capacity under Articles 22 and 258 to sue on behalf of over 10,000 residents.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Declaration that Muthara, Amuthumba/Ngaremara ranching area is separate and distinct from the Ngaremara/Gambella adjudication section.
  2. 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. 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. 4.No orders as to costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 19, 20, 21, 22(2)(d), 22(3), 22(4), 23, 24, 258, 27, 28, 35, 37, 40(1), 40(3), 42, 43, 47, 53, 56, 57, 60, 61, 62, 63, 64, 68, 69, 189, Fourth Schedule
  • Land Adjudication ActCap 284, Sections 3, 4, 5, 10, 23(2), 23(3), 26, 27(1), 28, 29(3), 31, 35
  • Land Consolidation ActSections 3, 6, 7
  • Community Land Act, 2016Sections 4(3), 5, 6(6), 8(1), 48; Preamble
  • Community Land Regulations, 2017Rule 12
  • Land (Group Representatives) ActCap 287 (now repealed)
  • Land Adjudication Regulations, 1970General
  • Constitution of Kenya (Protection and Enforcement of Fundamental Rights and Freedoms) Practice Directions 2013Rule 10
  • Land Acquisition Act (repealed)Section 9(1)

Cases cited (14)

  • Anarita Karimi Njeru v Attorney General
    [1979] eKLR
  • Kenya Human Rights Commission v Attorney General & Another
    Nairobi Petition 87 of 2017
  • Robert N. Gakuru & Others v Kiambu County Government & 3 Others
    [2017] eKLR
  • Coalition for Reform & Democracy & 2 Others v Republic & 10 Others
    [2015] eKLR
  • Abdi Ahmed Abdi v Cabinet Secretary for Interior & Coordination of National Government and 7 Others
    [2017] eKLR
  • County Government of Meru & Another v District Land Adjudication & Settlement Officer Tigania East Sub-County & 18 Others
    [2018] eKLR
  • County Government of Kiambu v The Senate & Others
    [2017] eKLR
  • Rotich Samuel Kimutai v Ezekiel Lenyongopeta & 2 Others
    [2005] eKLR
  • Fatuma Adan Dullo & 4 Others v Cabinet Secretary Ministry of Lands and Physical Planning & 2 Others
    [2020] eKLR
  • Silverio Akubu & 4 Others v Charles Baariu Salesio & 3 Others
    [2019] eKLR
  • Commissioner of Lands & Another v Coastal Aquaculture Limited
    [1997] eKLR
  • Electrical Options Ltd v Attorney General & Another
    [2012] eKLR
  • Republic v Land Adjudication Officer Embu District Exparte Kirinyaga Mihiriga Kenda
    [2012] eKLR
  • Reuben Mwongela M'itelekwa (suing as the Legal Representative of the M'itelekwa M'Mucheke) v Paul Kigea Nabea & 2 Others
    [2019] eKLR
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

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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, "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.