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ELCAllowedPetition No. 007 of 2021· [2022] KEELC 3664 (KLR)

Murusi & 15 others v County Government of Marsabit & 3 others (Petition 007 of 2021) [2022] KEELC 3664 (KLR)

Environment and Land Court
6 June 2022
8,734 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 in Isiolo ruled that a community land dispute with the Kenya Defence Forces is complex enough to be heard by three judges, not one.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Isiolo on an application dated February 25, 2021 by the 8th to 16th Petitioners, residents of Marsabit County belonging mainly to the Samburu and Rendille communities, seeking certification of their petition as raising substantial questions of law under Article 165(4) of the Constitution so that it be heard by a bench of not less than three judges to be empanelled by the Chief Justice. The underlying petition challenges the takeover of about 5,000 acres of land in Karare Ward, Marsabit County by the Kenya Defence Forces, contending that the parcel is community land under Article 63 of the Constitution and that its acquisition breached the Community Land Act, the Wildlife Conservation and Management Act, the National Land Commission Act and constitutional guarantees of fair administrative action, public participation, non-discrimination and compensation. The respondents, including the Attorney General and the KDF, opposed empanelment, arguing that the issues were ordinary land disputes, that a bench decision carries no greater force than a single judge's, and that certification is the exception rather than the rule. Considering written submissions highlighted on January 31, 2022, and the tests in Chunilal Mehta, County Government of Meru, Martin Nyaga Wambora, Del Monte and the Okiya Omtatah Okoiti v Anne Waiguru guidelines, the court held that the suit raises complex and novel issues of overriding public concern affecting over 100,000 community members, not finally settled by superior courts. It allowed prayer C, certified the matter under Articles 165(4) and 163, recommended empanelment of a three-judge bench, directed transmission of the file to the Chief Justice through the Presiding Judge of the ELC, and ordered costs in the cause.

Key legal issues

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01

Whether the petition raises substantial questions of law warranting certification under Article 165(4) and empanelment of at least three judges

Holding

Yes. The court found the suit to raise complex and novel issues of public importance affecting the Rendille and Samburu communities, not determined with finality by superior courts, and certified it under Article 165(4) for referral to the Chief Justice.

Reasoning

The court reviewed the competing tests: the Chunilal Mehta test (general public importance, unsettled questions, difficulty, alternative views), the County Government of Meru and Martin Nyaga Wambora factors (complexity, novelty, time, effect of prayers, public interest), and the Court of Appeal guidelines in Okiya Omtatah Okoiti v Anne Waiguru. It accepted counsel's submissions that the questions on community land, public participation, environmental impact assessment and the invocation of national security by the KDF were complex, novel and of overriding public concern, whichever way decided.

p. 19
02

Whether allegations of breach of fundamental rights, public interest or national importance alone suffice for empanelment

Holding

No - as argued by the respondents, breach of rights allegations and public interest alone do not qualify a matter as raising a substantial question of law; the court must be satisfied the issue is substantial.

Reasoning

The 1st Respondent submitted, relying on Okiya Omtatah Okoiti v Anne Waiguru, J Harrison Kinyanjui v Attorney General and Wanjiru Gikonyo v Attorney General, that a bench decision is of equal force to a single judge's, and that empanelment is the exception. The applicants countered that public importance tilts the balance where rights of individuals and the public at large are affected. The court accepted that public importance is a consideration but found the threshold met on the combination of complexity, novelty and public consequence.

p. 12

Legal principles established

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  • Any matter certified by the court as raising a substantial question of law under Article 165(3)(b) or (d) shall be heard by an uneven number of judges, being not less than three, assigned by the Chief Justice.
  • The grant of a certificate under Article 165(4) is an exception rather than the rule, and certification is a matter of judicial discretion exercised on a sound basis, no single factor being decisive.

Court orders

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  1. 1.Prayer C in the application allowed: the matter certified as raising substantial questions of law under Articles 165(4) and 163 of the Constitution, the Community Land Act, the Wildlife Conservancy Act and the National Land Commission Act
  2. 2.A finding that the Petition should be heard by an uneven number of Judges, being not less than three, to be assigned by the Honourable the Chief Justice
  3. 3.Recommendation to the Honourable the Chief Justice to consider the empanelment of a 3 Judge Bench to hear and determine the petition
  4. 4.Direction to the Deputy Registrar to forward the file to the Honourable the Chief Justice through the Presiding Judge of the Environment and Land Court
  5. 5.Costs of the application to be in the cause
Jurisdiction invoked
Article 165(3)(a), (b) and (4) of the Constitution of Kenya, 2010

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, "Murusi & 15 others v County Government of Marsabit & 3 others (Petition 007 of 2021) [2022] KEELC 3664 (KLR)", Case Analysis (2022). Petition No. 007 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3664/eng@2022-06-06

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