Republic v National Land Commission & 2 others; Mukonyoro & 3 others (Interested Parties); Wangai & 4 others (Exparte)
The bottom line
#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
#Executive summary
#Key legal issues
#Validity of PDP No. R23/98/7
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
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.
Validity of PDP No. R23/2001/3
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
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.
Justiciability of the judicial review reliefs
The real dispute is which group should be allocated the land, an administrative function that judicial review proceedings cannot achieve
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.
Legal principles established
#- 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
#- 1.The exparte applicants' Notice of Motion dated 16th July 2021 is dismissed
- 2.Each party to meet their own costs of the application
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.