Warirah v Deputy County Commissioner, Kasarani Sub County, Nairobi County & 3 others (Environment & Land Case 119 of 2020) [2022] KEELC 3442 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled the NG-CDF Board can be sued over land disputes and stayed in the case.
What this practically means
#Executive summary
#Key legal issues
#Capacity of the NG-CDF Board to be sued
The Board has capacity to sue and be sued and was properly joined as a defendant
Section 14 of the National Government Constituencies Development Fund Act establishes the Board as a body corporate with perpetual succession capable of suing and being sued. This statutory provision disposes of the applicant's claim that it lacks capacity. The court also distinguished the Kenafric and Njoka authorities as concerning CDF project implementation and contract disputes, whereas the present dispute concerns title to land.
Doctrine of exhaustion of remedies
The doctrine does not apply because the dispute concerns land title and compulsory acquisition, not administration of the CDF Act
Although section 56 of the NG-CDF Act requires disputes to be referred to the Board first, the court found the dispute before it does not concern administration of the statute or implementation of CDF projects. The court will have to determine the category of the suit land under articles 62, 63 and 64 of the Constitution, the plaintiff's proprietary interests, and compensation for compulsory acquisition - matters beyond section 56 and section 9 of the Fair Administrative Action Act.
Joinder of the National Land Commission
The NLC is a necessary party and should be joined as an interested party
Given the emotive nature of land disputes and the need to determine the category of the suit land and questions of compulsory acquisition, the court considered it necessary to have the National Land Commission on board, invoking order 1 rule 10(2) of the Civil Procedure Rules, and directed the plaintiff to amend pleadings and serve the NLC.
Legal principles established
#- No suit shall be defeated by reason of misjoinder or non-joinder of parties
- The NG-CDF Board is a body corporate capable of suing and being sued
- The exhaustion doctrine applies only to disputes arising from the administration of the CDF Act, not civil land-title disputes
Court orders
#- 1.The application dated January 10, 2022 is dismissed
- 2.Costs of the application to abide the outcome of the suit
- 3.The National Land Commission be joined in the proceedings as an interested party under order 1 rule 10(2) of the Civil Procedure Rules
- 4.The plaintiff is directed to amend their pleadings and serve the same upon the National Land Commission
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and section 13(2) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Warirah v Deputy County Commissioner, Kasarani Sub County, Nairobi County & 3 others (Environment & Land Case 119 of 2020) [2022] KEELC 3442 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3442/eng@2022-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.