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ELCDismissedEnvironment and Land Judicial Review Case E6 of 2021· [2022] KEELC 12574 (KLR)

Republic v National Land Commission & 2 others; Mukonyoro & 3 others (Interested Parties); Wangai & 4 others (Exparte)

Environment and Land Court
27 September 2022
3,079 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The court dismissed a challenge to a land reallocation because the applicants could not prove their own allocation plan was ever validly issued.

What this practically means

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Executive summary

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The exparte applicants, members of the Njoro Kiwanja Ndege Welfare Association, sought judicial review orders of certiorari and prohibition to quash the reallocation of plots comprised in PDP No. R23/98/7 to the interested party vide PDP No. R23/2001/3, gazetted as Gazette Notice No. 999 of 28th November 2001. They claimed occupation since 1935, allocation pursuant to PDP No. R23/98/7 approved in 1997/98, and extensive developments, and contended the impugned PDP was issued without consultation in violation of Articles 47 and 50. The 2nd Respondent denied any record of PDP No. R23/98/7, asserting only PDP No. R23/2001/3 existed on record; the 3rd Respondent denied any role in PDP preparation; the 1st Respondent and the interested party filed no response. The court found the applicants failed to demonstrate a valid PDP No. R23/98/7 - the verifying annexture JCW III was never included and there was no evidence of compliance with sections 24 to 28 of the Physical Planning Act, Cap 286. The court held PDP No. R23/2001/3 was properly issued, noting Koome J's unchallenged 2008 decision upholding it and quashing the applicants' allocations. The court further held the real dispute was which group should be allocated the land, an administrative question judicial review could not resolve. The Notice of Motion dated 16th July 2021 was dismissed with each party bearing their own costs.

Key legal issues

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01

Validity of PDP No. R23/98/7

Holding

The applicants failed to demonstrate that PDP No. R23/98/7 was validly issued; the annexture JCW III verifying it was not included and the 2nd Respondent denied any record of it

Reasoning

The court noted the verifying affidavit referred to annexture JCW III containing the PDP but it was not included in the record, so the court could not scrutinise it. The 2nd Respondent denied having any records of the plan. There was no evidence of compliance with sections 24-28 of the Physical Planning Act, Cap 286. Accordingly the applicants' allocation had no valid foundation.

p. 5
02

Validity of PDP No. R23/2001/3

Holding

PDP No. R23/2001/3 was properly issued in accordance with the Physical Planning Act, Cap 286, as attested by Gazette Notice No. 999 of 28th November 2001

Reasoning

There was evidence the impugned PDP was processed and prepared by the Director of Physical Planning and gazetted. The court also noted that in Nakuru HC Misc. App No. 201 of 2008, Koome J upheld the validity of PDP No. R23/2001/3 and quashed the County Council's allocations, and that decision was never contested and still stands.

p. 6
03

Justiciability of the judicial review reliefs

Holding

The real dispute is which group should be allocated the land, an administrative function that judicial review proceedings cannot achieve

Reasoning

The court held the matter was not truly about competing PDPs but about which group between the exparte applicants and the interested parties ought to be allocated the plots. That identification of genuine allottees is an administrative function, and these proceedings cannot resolve the competing possession and resettlement claims.

p. 6

Legal principles established

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  • A party cannot challenge a gazetted PDP without demonstrating a validly issued competing PDP in its favour
  • A PDP is effectual only if prepared in compliance with the Physical Planning Act, Cap 286, including gazettement and invitation of objections

Court orders

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  1. 1.The exparte applicants' Notice of Motion dated 16th July 2021 is dismissed
  2. 2.Each party to meet their own costs of the application

Authorities

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Legislation

  • Physical Planning Actsections 24, 25, 26, 27, 28
  • Physical Planning and Land Use Act
  • Constitution of KenyaArticles 47 and 50

Cases cited (2)

  • Nakuru HC Misc. App No. 201 of 2008

    Held the county council had no power to allocate land within a PDP; quashed allocations and upheld PDP No. R23/2001/3

  • Nakuru CMCC No. 773 of 2009

    Prior litigation between the same parties; applicants' suit struck out and eviction ordered on the counterclaim

Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court over the impugned Part Development Plan and Gazette Notice No. 999 of 28th November 2001

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, "Republic v National Land Commission & 2 others; Mukonyoro & 3 others (Interested Parties); Wangai & 4 others (Exparte)", Case Analysis (2022). Environment and Land Judicial Review Case E6 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12574/eng@2022-09-27

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