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ELCAllowedNot stated in the judgment (Constitutional Petition, Environment and Land Court, Siaya)· [2022] KEELC 2106 (KLR)

Kennedy Omondi Ochieng’ & another v National Land Commission & 3 others [2022] KEELC 2106 (KLR)

Environment and Land Court
20 January 2022
3,608 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court blocked the allocation of Yala Swamp land to a private company, confirming land courts can hear such disputes despite internal review processes.

What this practically means

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Executive summary

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The petitioners, residents and workers along the Yala Swamp catchment area in Siaya County, moved the court by a motion dated 22/10/2021 under Rule 13 of the Constitution (Protection of Rights and Fundamental Freedoms) Rules, 2013, seeking conservatory orders suspending a notice dated 14/10/2021 by which the National Land Commission intended to allocate three parcels within Yala Swamp Farm (USONGA/USONGA/BLOCK 1/4, 1/7 and 1/8) to the 4th respondent, a private company. They contended the land was unregistered community land held in trust by the County Government of Siaya under Article 63 of the Constitution and the Community Land Act, and that the setting-aside processes under Gazette Notices of 1970 and 2006 did not comply with the retired Constitution and the repealed Trust Land Act. The 2nd respondent raised a preliminary objection based on Section 14 of the Land Act, arguing the court lacked jurisdiction and that remedies of objection and exhaustion of internal processes applied. The court found the preliminary objection to be a valid point of law but held that Article 162(2)(b), Section 13 of the Environment and Land Court Act and Section 150 of the Land Act confer unlimited jurisdiction, so the objection failed. On the merits of the motion, the court found a prima facie case on whether the land is community or public land, since there was no evidence of organized settlement or due process in the setting-aside; the petitioners would be prejudiced while the 4th respondent, in occupation via Dominion Farms, would not. The court also struck out paragraph 87 of the 2nd respondent's replying affidavit as a threat to judicial independence. Conservatory orders suspending the notice were granted pending determination of the petition, with costs in the cause.

Key legal issues

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01

Jurisdiction vis-à-vis Section 14 of the Land Act

Holding

The preliminary objection fails; the court has jurisdiction to hear the motion and petition.

Reasoning

Article 162(2)(b) establishes the ELC and Section 13 of the Environment and Land Court Act gives it original and appellate jurisdiction over land disputes, without limitation. Section 14 of the Land Act does not restrict the court's jurisdiction; Section 150 of the Land Act confers unlimited jurisdiction over disputes under the Land Act. Applying Owners of the Motor Vessel 'Lilian S', the objection did not oust jurisdiction.

p. 4
02

Whether a prima facie case warranting conservatory orders was established

Holding

Yes; conservatory orders suspending the notice of allocation were granted pending hearing of the petition.

Reasoning

The critical question is whether the suit land is public or community land. Gazettement under Gazette Notice No. 2570 was for organized settlement, with no evidence settlement occurred; the 2006 gazettement lacked evidence of compliance with Sections 117(4) and 118 of the retired Constitution and the Trust Land Act. The petitioners' claim that the land is community land is not farfetched; they would be prejudiced by allocation, while the 4th respondent would not, being in occupation through a private arrangement with Dominion Farms.

p. 4

Legal principles established

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  • Section 150 of the Land Act and Section 13 of the Environment and Land Court Act confer on the ELC unlimited jurisdiction over disputes arising from the Land Act, including those arising from Section 14; Section 14 does not oust the court's jurisdiction
  • Without jurisdiction, a court has no option but to down its tools
  • In an interlocutory conservatory application the court does not make definite findings of fact or law, but only examines whether a prima facie case is made out and whether prejudice would ensue

Court orders

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  1. 1.Conservatory orders issued pending the hearing and determination of the petition, suspending the notice dated 14/10/2021 that intended to allocate land parcels USONGA/USONGA/BLOCK 1/4, USONGA/USONGA/BLOCK 1/7 and USONGA/USONGA/BLOCK 1/8 to the 4th respondent
  2. 2.Costs in the cause
  3. 3.Mention for directions on 31/1/2022
  4. 4.Paragraph 87 of the 2nd respondent's replying affidavit dated 29/11/2021 struck out/expunged from the court record

Authorities

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Legislation

  • Constitution of Kenya (2010)Articles 22, 23, 62(1)(m), 62(3), 63(2)(d), 63(4), 67, 162(2)(b), 176(1), 117(4), 118 (retired Constitution)
  • Constitution (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 13
  • Community Land ActSections 6(8), 11, 15, 48
  • Land ActSections 5, 6, 12(7), 14, 134, 150
  • National Land Commission ActSections 5, 6
  • Environment and Land Court ActSection 13
  • Trust Land Act (repealed)Part III; Sections 7, 8, 9, 13

Cases cited (14)

  • Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others
    (2015) eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    (2014) eKLR
  • Mukisa Biscuits Manufacturing Company Limited vs West End Distributors
    (1969) EA 696
  • Owners of the motor vessel 'Lilian S' vs Caltex Oil Kenya Ltd
    [1989] KLR 1
  • Gabriel Mutava & 2 others vs Managing Director Kenya Ports Authority & Another
    (2016) eKLR
  • Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others
    (2013) eKLR
  • Rutto Kapto Hillary v The Officer in Charge Naivasha Main Prison & 2 Others
    [2016] eKLR
  • Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others
    2015 eKLR
  • Re an application by Bahadur
    (1986) LRC(Const) 307
  • Gitson Energy Limited vs Francis Chachu Ganya & 6 others
    [2017] eKLR
  • Mohamud Iltarakwa Kochale & 5 others vs Lake Turkana Wind Power Limited & 4 others
  • Platinum Distillers Limited vs. Kenya Revenue Authority
    [2019] eKLR
  • Kenya Association of Manufacturers & 2 Others vs. Cabinet Secretary - Ministry of Environment and Natural Resources & 3 Others
    [2017] eKLR
  • Centre for Rights Education and Awareness and 7 others v the Attorney General
    HCCP No. 16 of 2011
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Rule 13 of the Constitution (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Kennedy Omondi Ochieng’ & another v National Land Commission & 3 others [2022] KEELC 2106 (KLR)", Case Analysis (2022). Not stated in the judgment (Constitutional Petition, Environment and Land Court, Siaya). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2106/eng@2022-01-20

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