Republic v Governor, County of Nyandarua & 3 others; Kuria & 6 others (Exparte) (Environment and Land Judicial Review Miscellaneous Application E002 of 2022) [2023] KEELC 634 (KLR)
The bottom line
#Kenya's Environment and Land Court upheld Nyandarua County's land task force and dismissed a judicial review challenge, saying disputed plot titles must be fought in civil suits, not review proceedings.
What this practically means
#Executive summary
#Key legal issues
#Governor's authority to establish the task force
The Governor, as chief executive, had legal authority to establish the task force to examine land issues to facilitate county planning and development.
Article 8 of the Fourth Schedule confers on counties the function of county planning and development, and Section 45 of the Physical and Land Use Planning Act, 2019 allows counties to prepare local physical development plans. Effective planning may require investigating irregular allocations and identifying public utility land. The Katelembo case was distinguished because that task force purported to determine land disputes with finality, whereas this one only investigated and recommended.
Qualification and regularity of appointment of task force members
No evidence demonstrated that members were unqualified, 'cronies', or illegally appointed, or that County Assembly vetting was legally required.
Apart from bare allegations, the Applicants adduced no evidence of required qualifications or that members failed to meet them. Membership was drawn from the County Commissioner, County Assembly, NLC, religious institutions, business community, squatters and county employees. No legal requirement of County Assembly vetting was demonstrated.
Public participation and fair hearing
There was substantial evidence of public participation, and the Applicants were not denied an opportunity to be heard.
Newspaper notices, attendance lists and checklist forms demonstrated public involvement; some Applicants themselves submitted documents to the task force. After the report, a notice published April 30, 2021 invited objections within 30 days and at least 666 plot owners responded. It was inconsistent for the Applicants to claim lack of hearing on behalf of owners who had participated.
Constitutionality of the recommended ADR tribunal
The recommendation for an ADR mechanism was not unconstitutional; it accords with Article 159(2)(c).
Article 159(2)(c) obliges courts to promote alternative forms of dispute resolution, subject only to qualifications on traditional mechanisms. Nothing showed the proposed mechanism would violate the Bill of Rights or be repugnant to justice or morality, and ADR is by nature consensual.
Suitability of judicial review as the forum
The dispute is unsuitable for judicial review; the legality of the Applicants' titles requires adjudication in civil suits with viva voce evidence.
The Applicants were primarily concerned about losing their plots rather than the decision-making process. None exhibited certificates of title in their own names; some allotment letters were temporary, issued post-2010 without NLC involvement, and others lacked approved PDPs. Sanitising such acquisitions on affidavit evidence alone would be unsafe; claims over plots allegedly reserved for public utilities need full trial.
Legal principles established
#- A county government may lawfully establish a task force to investigate land issues within the county in order to facilitate its constitutional function of county planning and development under Article 8 of the Fourth Schedule, provided it does not purport to adjudicate land disputes.
- Disputes concerning the legality of land allocations and multiple claims over plots are unsuitable for judicial review and should be resolved through civil suits where evidence can be tested by cross-examination.
- Recommendation of an alternative dispute resolution mechanism is constitutional, ADR being a consensual process promoted under Article 159(2)(c) of the Constitution.
Court orders
#- 1.The Applicants' notice of motion dated February 21, 2022 is dismissed in its entirety.
- 2.Costs of the suit awarded to the 1st – 3rd Respondents only; the 4th Respondent (Attorney General) awarded no costs.
- Jurisdiction invoked
- Order 53 of the Civil Procedure Rules, 2010; Sections 1A, 1B, 3 & 3A of the Civil Procedure Act (Cap 21); Sections 7, 9 & 11 of the Fair Administrative Action Act, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Governor, County of Nyandarua & 3 others; Kuria & 6 others (Exparte) (Environment and Land Judicial Review Miscellaneous Application E002 of 2022) [2023] KEELC 634 (KLR)", Case Analysis (2023). Judicial Review application (notice of motion dated February 21, 2022), Nyahururu. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/634/eng@2023-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.