Ndewa & 12 others v Kenya Defence Forces & 3 others; County Government of Meru & another (Interested Parties)
The bottom line
#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
#Executive summary
#Key legal issues
#Validity of the consent judgment/settlement
The consent fails the statutory and constitutional test and is rejected.
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.
Execution and binding effect of the consent
The consent was not executed by all parties in both petitions and cannot bind non-signatories.
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.
Conversion and alienation of public land by consent
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.
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.
Conflict between consent and parties' own pleadings
Counsel's signatures to the consent flew against the affidavits and preliminary objection filed under their clients' instructions.
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.
Public interest in conversion of public land
Public interest must occupy centre stage; conversion of public land to private land must be clean and beyond reproach.
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.
Legal principles established
#- 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
#- 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.Parties ordered to proceed to take directions on both the consolidation and disposal of the petitions
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.