Kamozu & others v Attorney General & 7 others; Taveta Farmers Association (Interested Party) (Constitutional Petition 6 of 2019) [2023] KEELC 220 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Spent and overtaken prayers
Prayers 1, 2, 3 and 5 were spent as the allocation had run its course, titles had issued and the interlocutory injunction was never granted
The court noted the allotment process had effectively concluded before judgment; the persons to be allotted land had been identified, many held titles, and no interim orders had ever been granted. An injunction cannot issue on an event already completed. Orders couched 'until determination of this petition' were interim in nature and ought to have been sought interlocutorily.
Locus to challenge the sale to SFT
The petitioners had no locus to question the sale of the suit land to SFT, and the issue was res judicata having been determined in Basil Criticos v National Bank of Kenya Limited
The petitioners were not the registered owners and had no pending claim to ownership. The Court of Appeal had fully ventilated the legality of the sale, finding it irregular but awarding damages instead of reversing the sale. Revisiting the issue would breach res judicata and would undermine the petitioners' own claim to benefit from the settlement scheme.
Material non-disclosure by petitioners
The petitioners, who claimed to have been denied land, had in fact been allocated land and titles but concealed this; the petition therefore had no substratum
The 1st petitioner conceded in cross-examination that he and the other two petitioners had been allocated land. No person entitled to allocation but left out was identified. The petition's foundation of impending eviction and destitution was alarmist and false. The court held the petitioners guilty of material non-disclosure, which also disentitled them to good faith status in public interest litigation costs.
Applicable law - Agriculture Act vs Land Act 2012 vs Land Adjudication Act
The governing law was the Agriculture Act, Cap 318, under which SFT was established; neither the Land Act, 2012 (not yet in force) nor the Land Adjudication Act (inapplicable to declared adjudication areas only) applied
The allocation occurred in 2007-2010, before the Land Act, 2012 was assented and before the NLC was constituted. Section 167 of the repealed Agriculture Act empowered SFT to purchase and dispose of property, with discretion on whom to settle. The Land Adjudication Act applies only where the Minister declares an adjudication area, which never happened here. Allegations of breach of Section 134 of the Land Act were therefore misplaced.
Public participation
There was adequate public participation in the identification and allocation of beneficiaries through notices, barazas and stakeholder meetings; reliance on Article 10 of the 2010 Constitution was retrospective and misplaced
Minutes of the Danida Hall meeting of 8 September 2008 showed open attendance including the 1st petitioner. The 2010 Constitution did not exist when the allocation occurred. Even if applied, hearings of thousands could only meaningfully occur through representatives, and the meeting resolutions favoured squatters by requiring their first consideration.
Alleged irregular beneficiaries and nullification of the scheme
The court declined to nullify the settlement scheme; alleged irregular allocations (about 4% of plots) required specific investigation and the affected persons could not be condemned unheard
The list of irregular beneficiaries was not pleaded or exhibited in the petitioners' case. The named beneficiaries were not parties and had not been heard. Nullifying the scheme would cancel titles of 96% of properly allotted persons, cause chaos and invite invasions. Specific complaints against particular individuals were the proper remedy.
Legal principles established
#- Parties and the court are bound by the pleadings; a court may not determine issues not raised by the parties
- Retrospective application of statutes is not permitted; conduct predating a statute cannot be tested against it
- It is against natural justice to nullify a person's title without first giving them a hearing
- In representative litigation, the persons represented must be identified and must sign an authority to those representing them
- A public interest litigant who is guilty of material non-disclosure may be denied the usual costs protection
Court orders
#- 1.The petition is dismissed with costs
- 2.All interim orders issued in the petition are vacated, including orders stopping prosecution of persons for criminal offences related to invasion or trespass to land, and the stopped cases may proceed to their logical conclusions
- 3.Costs to be paid jointly and/or severally by the original three petitioners, the 7 persons who filed the application dated 13 June 2019, and the 24 persons who signed the authority to be represented by those 7 persons
- Jurisdiction invoked
- Articles 20(1), 22(1), 23(1) and 258 of the Constitution of Kenya, 2010 (petition for enforcement of fundamental rights and public land claims transferred to the Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamozu & others v Attorney General & 7 others; Taveta Farmers Association (Interested Party) (Constitutional Petition 6 of 2019) [2023] KEELC 220 (KLR)", Case Analysis (2023). Mombasa ELC Petition No 6 of 2019 (originally Nairobi High Court Petition No 325 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/220/eng@2023-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.