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ELCOtherConstitutional Petition E014 of 2021· [2022] KEELC 4802 (KLR)

Ndewa & 12 others v Kenya Defence Forces & 3 others; County Government of Meru & another (Interested Parties)

Environment and Land Court
21 September 2022
6,041 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court rejected a settlement that would have handed public land to communities, ruling that public land cannot be reallocated by private agreement.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Meru (C.K. Nzili, J) deals with a consent dated 30th June 2022 by which parties sought to settle two consolidated constitutional petitions - Petition E014 of 2021 (Ndewa & 12 others) and Petition E013 of 2021 (Joshua Kathawe & 150 others) - concerning land in the Ngaremara/Gambella Adjudication Section, including L.R Nos. 27098 and 32634 occupied by the 78 Tank Battalion and the School of Artillery. The petitioners alleged infringement of their rights to property and administrative action, claiming the land was community land unlawfully alienated to the Kenya Defence Forces without public participation or compensation. The consent provided for revision of titles, degazettement of the Nyambene National Reserve, resettlement of residents and establishment of an implementation committee. The court declined to adopt the consent, holding that it failed both the statutory and constitutional test: it went beyond the pleadings and prayers, was not executed by all parties in both petitions, conflicted with the parties' own affidavits and an undetermined preliminary objection, affected third parties such as the Kenya Wildlife Service and the Cabinet Secretary National Treasury (the registered trustee title-holder) who were not heard, and purported to degazette, convert and alienate public land contrary to Articles 62(2)(b), 62(3) and 62(4) of the Constitution and the Land Act and National Land Commission Act. The consent was rejected and parties directed to take directions on consolidation and disposal of the petitions. No costs order was made.

Key legal issues

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01

Validity of the consent judgment/settlement

Holding

The consent fails the statutory and constitutional test and is rejected.

Reasoning

The court held that adoption of a consent is a legal process requiring proof of a lawful compromise to the court's satisfaction. The consent went beyond the pleadings and prayers, sought degazettement of a national reserve, revocation of titles to public land and conversion of public land, all without hearing affected parties including the Kenya Wildlife Service and the Cabinet Secretary National Treasury who holds the title in trust.

p. 12
02

Execution and binding effect of the consent

Holding

The consent was not executed by all parties in both petitions and cannot bind non-signatories.

Reasoning

The consent was signed only in one file yet purported to bind petitioners in Petition No. 13 of 2021 who had not appended all their signatures. Citing Ransa Co. Ltd and Richard Leiyagu, the court held it would be unprocedural and unlawful to exclude or bind a party without their knowledge, concurrence or hearing.

p. 9
03

Conversion and alienation of public land by consent

Holding

Public land held by a national state organ cannot be converted, degazetted or alienated through a consent order; statutory procedures under the Land Act and NLC Act must be followed.

Reasoning

The court reviewed Articles 62(2)(b), 62(3) and 62(4) of the Constitution and Sections 5(2) NLC Act, Sections 8(d), 9 and 111(2) of the Land Act, noting conversion of public land requires approval of the National Assembly and County Assembly and must serve public needs. The consent arrogated to parties the mandate to degazette, convert and alienate public land without these safeguards.

p. 11
04

Conflict between consent and parties' own pleadings

Holding

Counsel's signatures to the consent flew against the affidavits and preliminary objection filed under their clients' instructions.

Reasoning

The 3rd and 4th respondents had a live preliminary objection contending the court lacked jurisdiction and that the dispute required intergovernmental resolution mechanisms; the consent was not shown to emanate from a duly constituted mediation committee under Sections 31-35 of the Intergovernmental Relations Act. Citing Hirani v Kassam, counsel's ostensible authority cannot sustain a consent diametrically opposed to express client instructions.

p. 10
05

Public interest in conversion of public land

Holding

Public interest must occupy centre stage; conversion of public land to private land must be clean and beyond reproach.

Reasoning

Relying on Narok County Government v Ntutu and Pati Ltd v Funzi Island Development Ltd, the court held that questions whether land belongs to applicants or was illegally acquired should be settled with finality at trial, not by consent, since public policy protects public interest under Article 10 national values.

p. 11

Legal principles established

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  • A consent to settle a constitutional petition must meet a constitutional and statutory test and cannot be used to alienate, convert or revoke titles to public land beyond the pleadings and without hearing affected parties.
  • Land held, used or occupied by a national state organ cannot be dealt with by consent so as to be held by a county government in trust for residents.
  • The court has no mandate to single-handedly alienate public land or revoke titles without fair hearing of affected parties.

Court orders

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  1. 1.The consent dated 30.6.2022 and filed on 15.7.2022 is rejected; the court declines to approve or adopt it as a decree or order of the court
  2. 2.Parties ordered to proceed to take directions on both the consolidation and disposal of the petitions

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 6(2), 10, 23(3), 241, 62(1)(a)&(b), 62(2)(b), 62(3), 62(4), 63, 159(2), 189(4)
  • Community Land ActAct No. 27 of 2016
  • Land ActSections 8(d), 9, 111(2); Act No. 6 of 2012
  • National Land Commission ActSection 5(2)
  • Intergovernmental Relations ActSections 3, 30, 31-35
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 29, 30
  • Civil Procedure RulesOrder 25, Rule 29
  • Law of Contract ActSection 3(3)
  • Trust Land Actreferred to generally
  • Land Adjudication Actreferred to generally
  • Survey Actreferred to generally

Cases cited (16)

  • IEBC vs Mutinda Mule & 3 others
    [2014] eKLR

    Parties are bound by pleadings and issues flow from pleadings.

  • Raila Amolo Odinga & another v IEBC & 2 others
    [2017] eKLR

    Parties bound by pleadings and issues flowing therefrom.

  • Maccu Motors & 7 others v David Kirimi Mwithimbu & 4 others
    [2021] eKLR

    Principles governing consolidation of suits.

  • Ransa Co. Ltd v Manca Francesco & 2 others
    [2015] eKLR

    Validity of consent entered without interested party; judicial writs by consent revoking title.

  • Richard Leiyagu v IEBC & 20 others
    [2013] eKLR

    Right to be heard before orders affecting a party are made.

  • Kasmil Wesonga Ongoma & another v Wanga
    [1987] eKLR

    Definition of a consent judgment.

  • Flora Wasike v Desmond Wambeolla
    [1980] 1 KAR

    A consent judgment has contractual effect.

  • Geoffrey M. Asango & 3 others v A.G
    [2020] eKLR

    Court's duty in evaluating and adopting a consent under Article 159(2) ADR principle.

  • Hirani v Kassam
    [1952] 19 EACA 131

    Counsel's ostensible authority cannot sustain consent opposed to client's express instructions.

  • KCB Ltd v Benjoh Amalgamated Ltd & another
    [1998] eKLR

    Limits on counsel's authority to compromise.

  • Leo Investment Ltd v Estuarine Estate Ltd
    [2017] eKLR

    Consent must meet Section 3(3) Law of Contract Act requirements.

  • Narok County Government v Livingstone Kunini Ntutu & 2 others
    [2018] eKLR

    Conversion of public land must be beyond reproach; consent set aside and matter sent to trial.

  • Pati Ltd v Funzi Island Development Ltd and 4 others
    [2019] eKLR

    Public interest in settling with finality whether public land was illegally acquired; conversion must be clean.

  • National Land Commission v A.G & 7 others
    [2015] eKLR

    Mandate of the National Land Commission.

  • Kenya Guard Allied Workers Union v Security Services & 38 others
    [2003] eKLR

    Public interest must guard against land grabbers; consents must conform to statutes and Constitution.

  • Republic vs Machakos County Government & 2 others exparte Johnstone Muthama
    (2016) eKLR

    Public interest and national values and principles of governance.

Jurisdiction invoked
Articles 35, 40, 47(1), 67 and 68 of the Constitution of Kenya, 2010; Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Ndewa & 12 others v Kenya Defence Forces & 3 others; County Government of Meru & another (Interested Parties)", Case Analysis (2022). Constitutional Petition E014 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/4802/eng@2022-09-21

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