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ELCDismissedConstitutional Petition No 25 of 2014· [2022] KEELC 2757 (KLR)

Owino & 5 others v Director of Surveys & 7 others (Constitutional Petition 25 of 2014) [2022] KEELC 2757 (KLR)

Environment and Land Court
27 July 2022
8,793 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed Konza plot owners' petition, ruling that county councils cannot allocate Government land and letters of offer confer no ownership.

What this practically means

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Executive summary

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Five Petitioners claimed that plots allocated to them at Konza Township by the then Municipal Council of Machakos in 1997 were their property, and that the Respondents' 2010 planning and survey of the township - culminating in fresh allotment letters in 2011 by the Commissioner of Lands - violated their rights under Articles 10, 35, 40, 43 and 47 of the Constitution. They sought injunctions, declarations, titles and compensation. The 2nd Respondent raised a preliminary objection on jurisdiction and sub judice; the 4th Respondent and the 5th to 8th Respondents filed replying affidavits maintaining that the suit property was unalienated Government land, that the Petitioners held only informal occupation, that the 2010 plan was the first lawful plan, and that public participation was carried out. The court first found that it had jurisdiction under Article 162(2)(b) and Section 13 of the Environment and Land Court Act, as the dispute related to land, and dismissed the preliminary objection, including the contention that Sections 18(2) and 19 of the Land Registration Act applied. On the merits, the court held that the 1997 letters from the Municipal Council conferred no proprietary rights because the Council had no power to allocate unalienated Government land under the repealed Government Lands Act, and that no Temporary Occupation Licences were proved. No approved plan existed before 2010; the 2010 plan was lawfully prepared, gazetted, published and opened for objections which the Petitioners never lodged, defeating their public participation and fair administrative action claims. The Article 35 claim failed because the Petitioners did not prove the information sought existed or was held by the Respondents, and the Article 43 claim failed for want of evidence. The Petition was dismissed with each party bearing its own costs.

Key legal issues

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01

Jurisdiction of the ELC over a constitutional petition concerning survey, planning and allocation of land

Holding

The court has jurisdiction; the claim is a dispute relating to land within Article 162(2)(b) and Section 13 of the ELC Act, not a mere boundary dispute under Sections 18(2) and 19 of the Land Registration Act.

Reasoning

Article 162(2)(b) and Section 13 of the ELC Act confer original jurisdiction over disputes relating to environmental planning, land use planning, title, tenure and boundaries. The Petitioners' claim is for land ownership, not a boundary determination reserved for the Land Registrar. The sub judice objection failed because the 2nd Respondent adduced no evidence of a previously instituted suit between the same parties on the same issues.

p. 10
02

Whether the 1997 allocations by the Municipal Council of Machakos conferred proprietary rights protected under Article 40

Holding

No. The suit property was unalienated Government land which only the President/Commissioner of Lands could allocate under the repealed Government Lands Act; the Council's letters of 7th November 1997 conferred no proprietary rights, and the claim of Temporary Occupation Licences was unsupported by evidence.

Reasoning

The parties did not contest that the suit property was Government land, not trust land. Under Sections 3 and 9 of the repealed Government Lands Act Cap 280, only the President (or the Commissioner of Lands by delegation) could dispose of unalienated Government land. The Municipal Council therefore had no capacity to allocate. Equally, no Temporary Occupation Licences issued by the Commissioner of Lands were tendered. The Petitioners consequently failed to prove ownership.

p. 12
03

Whether there had been a previous approved plan and survey, making the 2010 exercise an unlawful resurvey

Holding

No evidence of any approved plan under the repealed Town Planning Act, Land Planning Act or Physical Planning Act; the 2010 plan was the first and only plan, lawfully prepared and approved.

Reasoning

The court traced the statutory planning regimes (Town Planning Act Cap 134, Land Planning Act Cap 303, the 1961 Regulations and the Physical Planning Act Cap 286) and found no evidence that any approved plan existed before 2010. The 2010 plan was gazetted, advertised, subjected to a 60-day objection window and approved by the Minister, in compliance with the Physical Planning Act.

p. 14
04

Whether Articles 10, 47 and 35 were breached

Holding

No. Public participation was carried out through gazettement, newspaper advertisement and barazas; the Petitioners never objected. Administrative action was procedurally fair, and no proof was offered that the information sought existed or was held by the Respondents.

Reasoning

Public participation requires intentional inclusivity, not that every individual view be adopted. The Gazette Notice of 2nd August 2010 opened a 60-day objection period which the Petitioners failed to use. The planning process complied with the Physical Planning Act and thus satisfied Article 47. On Article 35, the Petitioners merely believed the survey plan was in the 1st Respondent's custody, which the Respondents denied; the burden of proving the information's existence lay on the Petitioners.

p. 15

Legal principles established

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  • A Municipal or County Council had no power to allocate unalienated Government land; under the repealed Government Lands Act Cap 280 such power was vested in the President and delegated to the Commissioner of Lands.
  • A petitioner enforcing the right of access to information must first demonstrate that the information sought exists and is held by the respondent, and cannot use the same suit to obtain information needed to prove the petition.
  • A party who is given an opportunity to participate in a statutory public participation process (e.g. objecting to a published development plan) but fails to do so cannot later claim denial of public participation.
  • Precision in constitutional pleading requires a nexus between the petitioner, the constitutional provisions alleged to be violated and the manifestation of the violation, but does not demand exactitude or formality.

Court orders

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  1. 1.The Petition is dismissed for lack of merit.
  2. 2.Each party shall bear its own costs of the suit.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 22(1), 35, 40, 42, 43, 47, 69, 70, 115, 162(2)(b), 165(5)
  • Environment and Land Court Act No. 19 of 2011Section 13
  • Land Registration ActSections 18(2) and 19
  • Civil Procedure ActSection 6
  • Government Lands Act, Cap 280 (repealed)Sections 3 and 9
  • Land Act No. 6 of 2012Section 20
  • National Land Commission Act, 2012Not specified
  • Physical Planning Act, Cap 286 (repealed)Sections 21, 24, 26
  • Land Planning Act, Cap 303 (repealed)Not specified
  • Town Planning Act, Cap 134 (repealed)Sections 23 and 24
  • Development and use of land (Planning) Regulations 1961Regulations 6 and 7

Cases cited (16)

  • Nairobi Law Monthly v Kenya Electricity Generating Company & 2 Others
    [2013] eKLR
  • Mui Coal Basin Local Community & 17 others v Permanent Secretary Ministry of Energy & 15 Others
    [2015] eKLR
  • Robert N. Gakuru & Others v The Governor of Kiambu County & 3 others
    Petition No. 532 of 2013
  • Republic v National Police Service Commission
    [2016] eKLR
  • Reuben Njuguna Gachuhi & Another v Inspector General Police Service & Others
    [2019] eKLR
  • David Gathu Thuo v Attorney General & Another
    [2021] eKLR
  • Leonard Otieno v Airtel Kenya Limited
    [2018] eKLR
  • Communication Commission of Kenya & 5 Others v Royal Media Services & 5 others
    [2014] eKLR
  • Anarita Karimi Njeru v Republic
    [1979] KLR 154
  • Kiambu County Tenants Welfare Association vs. Attorney General & Another
    [2017] eKLR
  • Meme vs. Republic
    [2004] eKLR
  • Mumo Matemu v Trusted Society for Human Rights Alliance & 5 others
    [2013] eKLR
  • Owners of Motor Vessels "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Macfoy vs. United Africa Co. Ltd
    [1961] 3 Aller 1169
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & another
    [2012] eKLR
  • Bahola Mkalindi v Michael Seth Kaseme & 2 others
    [2013] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya 2010 read with Section 13 of the Environment and Land Court Act No. 19 of 2011

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, "Owino & 5 others v Director of Surveys & 7 others (Constitutional Petition 25 of 2014) [2022] KEELC 2757 (KLR)", Case Analysis (2022). Constitutional Petition No 25 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2757/eng@2022-07-27

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