Murusi & 15 others v County Government of Marsabit & 3 others (Petition 007 of 2021) [2022] KEELC 3664 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the petition raises substantial questions of law warranting certification under Article 165(4) and empanelment of at least three judges
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.
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.
Whether allegations of breach of fundamental rights, public interest or national importance alone suffice for empanelment
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.
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.
Legal principles established
#- 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
#- 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.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.Recommendation to the Honourable the Chief Justice to consider the empanelment of a 3 Judge Bench to hear and determine the petition
- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.