Tikani & 18 others v Attorney General & 6 others (Environment and Land Constitutional Petition 12 of 2017) [2022] KEELC 2486 (KLR)
The bottom line
#The Environment and Land Court in Narok dismissed a Purko community claim that certain Narok farms were community land, finding no documentary proof and ruling exclusive clan claims discriminatory.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit properties are community land under Article 63 of the Constitution
The petitioners failed to establish that the parcels are community land; the land is public/trust land held by the County Government of Narok
Article 63 defines community land as land lawfully registered in the name of group representatives, transferred to a specific community by law, declared community land by an Act of Parliament, or lawfully held/used by specific communities as forests, grazing areas, shrines, ancestral lands or trust land. The petitioners produced no documentary proof of any of these; the holding ground's map merely described it as unregistered community land held in trust by the county council, which points to county trusteeship rather than Purko ownership.
Whether the land should revert to the Purko community upon the petitioners' claim of breach of trust
Reversion to the Purko community alone was refused as discriminatory and contrary to Articles 10 and 27 of the Constitution
The court held that Narok is home to other communities and it would be unfair, in the current era, to allow one clan of a tribe to manage land held in trust by the county government for all residents. National values of inclusiveness, equality and non-discrimination under Article 10(2) weigh against a communal claim that excludes other communities. Rights in community land may be held individually or in association with others under Section 5 of the Community Land Act, not exclusively by one section.
Whether the county council's 2005 minutes and meetings evidenced a re-allocation of the land to Purko Development Trust
The minutes showed planning for land under trusteeship, not a re-allocation or reversion
The court examined the minutes of 12th April 2005 and the Town Planning Committee meeting of the same date, arising from the trust's applications of 15th March 2005 and 21st September 2006, and found that the committee was only seeking better ways of planning for lands under its trusteeship including the sheep and goat, AMS and FTC lands. There was nothing to suggest the county council had re-allocated the land back to the trust.
Legal principles established
#- Unregistered community land is held in trust by county governments on behalf of the communities for which it is held
- A county government may not sell, dispose of, transfer or convert unregistered community land held in trust for communities
- A claim by one clan of a tribe to exclusive reversion of land held in trust for the wider community is discriminatory and contrary to the Constitution
Court orders
#- 1.The prayers sought in the petition dated 6th March, 2013 are declined and the petition is dismissed
- 2.The conservatory orders issued on 20th March, 2013 are vacated
- 3.No orders as to costs
- Jurisdiction invoked
- Constitution of Kenya 2010, Articles 40, 63 and 10 (community land and land rights jurisdiction of the Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tikani & 18 others v Attorney General & 6 others (Environment and Land Constitutional Petition 12 of 2017) [2022] KEELC 2486 (KLR)", Case Analysis (2022). Petition dated 6th March, 2013 (Narok). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2486/eng@2022-07-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.