Law Society of Kenya v Kinyua, Head of Public Service & 5 others; Migot-Adholla & another (Interested Parties) (Environment and Land Petition E029 of 2022) [2022] KEELC 3962 (KLR)

Article 22 permits any person, including one acting in the public interest, to institute proceedings claiming that a right or freedom has been denied, violated or threatened. Relying on Mumo Matemu and Sollo Nzuki, the court noted that standing in public law litigation has been greatly relaxed. Since the petitioner was questioning the legality of the alienation of public land, its standing could not be doubted; the merits were a separate question.

Article 62(2)(b) excludes land held, used or occupied by a national state organ from land vesting in county governments and administered by the NLC; article 62(3) covers other categories. This exclusion was deliberate, to enable state organs to deal with such land under their governing laws and to avoid past executive dealings with land reserved for state organs. Section 12 of the Land Act therefore applies to all other categories of public land except land held by a state organ, which the suit property is.

Since the Constitution vests land held by state organs outside the reach of the executive and the NLC, the cabinet could not itself alienate the suit property. Under section 48 and section 60 of the Universities Act and section 17(8) of the Charter, the University Council administers the property of the University and may dispose of immovable property in the interest of the University in accordance with government procedures. The letters therefore constituted no more than a request that the Council could consider.

The court examined the minutes of July 15, 2022, in which the Council acknowledged that re-planning would augment the University's academic and research programmes and benefit the hospital, area residents and the national interest. No evidence showed the new Council was unlawfully appointed, no resolution of the previous Council refusing alienation was exhibited, and counsel for the 2nd interested party admitted no such resolution existed. The petitioner also failed to file a further affidavit to counter the Council's resolution.

Conservatory orders require a prima facie case beyond a speculative basis, consideration of constitutional values and the public interest, and whether the petition would be rendered nugatory. Given the court's findings on the constitutional scheme for land held by state organs, the effect of the letters as mere requests, and the Council's prima facie justified resolution of July 15, 2022, the petitioner had not established a prima facie case with chances of success.

The Supreme Court in Mitu-Bell held that where the landless occupy public land and establish homes, they acquire not title but a protectable right to housing deriving from equitable access to land under article 60(1)(a). Read with section 134 of the Land Act on settlement programmes, and given that the University had agreed since 1984 to settle the Kamae squatters (as confirmed by Komingoi J), allocating 190 acres for their settlement serves a public purpose.