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ELCDismissedPetition dated 26th July 2021 (number not stated in judgment)· [2022] KEELC 1612 (KLR)

Lmakiya Lesarge & 8 others v Land ADJ Officer Samburu East & 13 others [2022] KEELC 1612 (KLR)

Environment and Land Court
3 February 2022
YAY. M. Angima
1,540 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to halt community land committee elections, ruling disputes under the Community Land Act don't belong in a constitutional petition.

What this practically means

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Executive summary

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The Petitioners challenged the election of the Community Land Management Committee of Losesia Group Ranch held on 17th June 2021, contending that notice was inadequately published, non-members infiltrated the election, bona fide members were turned away and quorum was not attained, and sought a declaration that the elections were unprocedural, unlawful and unconstitutional. Simultaneously they moved for conservatory orders under Articles 22 and 23 of the Constitution staying the outcome of the elections, arguing the petition would be rendered nugatory otherwise. The 3rd, 4th, 7th and 12th Respondents opposed, asserting adequate publicity in the Nation Newspaper, barazas and churches, proper member verification, and that the Petitioners walked out and were obstructing the transition of the Group Ranch into community land. The court framed a single issue: whether the Petitioners had made out a case for the conservatory order of stay. Applying Gatirau Peter Munya v Dickson Mwenda Kithinji on the nature of conservatory orders, and Kenya Bus Services Ltd v Attorney General together with Re application by Bahadur on constitutional avoidance, the court held that the impugned elections were conducted under the Community Land Act, 2016 and Regulations, 2017 rather than the Constitution, and disclosed no constitutional issues warranting a petition under Articles 22 and 23, while leaving the Petitioners liberty to persuade the court otherwise at trial. It was further not satisfied the petition would be rendered nugatory, as nullification and fresh elections remain available if the Petitioners succeed. The notice of motion dated 26th July 2021 was dismissed with costs in the cause.

Key legal issues

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Whether conservatory orders under Articles 22 and 23 should issue to stay community land management committee elections

Holding

The application was dismissed because no arguable constitutional case was established and the petition would not be rendered nugatory if the orders were denied

Reasoning

The court distinguished community land elections from constitutional general elections, holding they are conducted under the Community Land Act, 2016 and Regulations, 2017, not the Constitution. Relying on Gatirau Peter Munya v Dickson Mwenda Kithinji on the nature of conservatory orders and Kenya Bus Services on constitutional avoidance, the court found no constitutional issues disclosed and noted that nullification and fresh elections remain available if the petition ultimately succeeds.

p. 3

Legal principles established

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  • Not every infraction of the law gives rise to constitutional issues; where a claim can be founded under substantive law, the proper course is to bring the claim under that law and not the Constitution

Court orders

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  1. 1.The Petitioners' notice of motion dated 26th July 2021 is dismissed
  2. 2.Costs shall be in the cause
Jurisdiction invoked
Articles 22 and 23 of the Constitution of Kenya

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, "Lmakiya Lesarge & 8 others v Land ADJ Officer Samburu East & 13 others [2022] KEELC 1612 (KLR)", Case Analysis (2022). Petition dated 26th July 2021 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1612/eng@2022-02-03

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