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ELCPartially AllowedEnvironment & Land Petition 17 of 2021· [2023] KEELC 15962 (KLR)

Kariuki & 3 others (Suing as Chairman, Vice Chairlady, Secretary and Treasurer of members on their behalf and of Lake Naivasha Riparian Association) v National Land Commission & 5 others

Environment and Land Court
23 February 2023
6,547 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled the allocation of Lake Naivasha riparian land, confirming that protected lakeshore land belongs to the public and cannot be privately allocated.

What this practically means

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Executive summary

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Four office-bearers of the Lake Naivasha Riparian Association petitioned the Environment and Land Court at Nakuru challenging the alienation, demarcation and allocation of about 23.28 hectares of Lake Naivasha riparian land as Title No. Naivasha/Municipality Block 5/372, first registered to the 3rd respondent and later transferred to the 4th respondent. They sought a declaration of nullity, certiorari to quash the allocation, and permanent injunctions against the private respondents and the state land agencies, contending the land is protected public riparian land within the Lake Naivasha Catchment Area Protection Order 2012 and that no allotment letter or lawful process existed. The National Land Commission conceded the land was public and irregularly allocated but denied any role, the allocation predating its establishment. The Chief Land Registrar, Director of Surveys and Attorney General relied on the certificate of lease and argued the petitioners had not pleaded violations with precision and that certiorari was time-barred. The court, applying Anarita Karimi, held the petition met the constitutional threshold: the suit land is public riparian land protected by law, unavailable for private allocation, and its allocation violated Articles 42 and 62(3) and (4). It issued a declaration of nullity and an order of certiorari quashing the allocation decision. It declined permanent injunctions as superfluous once certiorari issued, and ordered each party to bear its own costs.

Key legal issues

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01

Whether the petition met the threshold of a constitutional petition

Holding

It did - the petitioners demonstrated the suit land is public riparian land protected by law and their right to a clean environment was infringed

Reasoning

Applying Anarita Karimi, the court found the petitioners pleaded with precision the provisions infringed and the manner of infringement. The suit land was admitted to be public riparian land protected under the Water Resources Management Rules 2006, and Article 42 entitled every person to a clean and healthy environment, so recourse to the court's constitutional jurisdiction was available.

p. 10
02

Whether the allocation of the riparian land to the 3rd and 4th respondents was lawful

Holding

It was not - the land is public riparian land, unavailable for private allocation, in breach of Articles 42 and 62(3) and (4)

Reasoning

The court found the property to be public land within Article 62, riparian land being part of public land given state control of watercourses. The 1st respondent itself conceded the land was public and irregularly allocated. No allotment letter or lawful process was demonstrated, so the alienation, demarcation and allocation were null and void.

p. 12
03

Whether certiorari should issue despite the alleged inordinate delay

Holding

Certiorari was granted quashing the allocation decision notwithstanding the respondents' delay objection

Reasoning

The 1st respondent argued the allocation occurred in 1994 and over six months had lapsed under Order 53 Rule 2. The court nonetheless granted certiorari quashing the decision of the 1st respondent and/or its predecessor to demarcate, alienate and allocate the suit land, without expressly reasoning on the delay point.

p. 12

Legal principles established

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  • Riparian land forms part of public land and is not available for allocation to private persons
  • A constitutional petition must set out with reasonable precision the provisions infringed and the manner of infringement

Court orders

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  1. 1.Declaration that the alienation, demarcation and allocation of the Lake Naivasha riparian land comprised in Title No. Naivasha Municipality Block 5/372 to the 3rd and 4th respondents is illegal, unlawful, unprocedural, irregular, contrary to the Constitution of Kenya 2010 and null and void
  2. 2.Order of judicial review by way of certiorari to quash the decision of the 1st respondent and/or its predecessor to demarcate, alienate and allocate the suit land to the 3rd respondent and its transfer to the 4th respondent
  3. 3.Each party to bear own costs of the petition

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 2(2), 2(6), 10, 20(2), 21, 22(1), 23(3), 27, 40(6), 42, 47, 50(1), 60(1), 62(1), 62(3), 62(4), 67, 68, 69, 70, 162(2), 258; Sixth Schedule clause 7
  • Land ActSections 12 to 19, 158
  • Land Registration Act 2012Section 109
  • National Land Commission Act No. 5 of 2012Sections 14, 15
  • Environment and Land Court ActSection 18
  • Environmental Management and Co-ordination ActSections 3(5), 9, 108, 111
  • Evidence Act Cap 80Sections 107(1), 109, 112
  • Civil Procedure RulesOrder 53 Rule 2
  • Water Resources Management Rules 2006Part IX
  • Governments Land Act (repealed)functions of Commissioner of Lands
  • Lake Naivasha Catchment Area Protection Order 2012Legal Notice No. 8 of 2002, Gazette Supplement No. 8 of 16th January 2013

Cases cited (17)

  • Joseph Leboo & 2 Others vs Director Kenya Forest Services & another
    [2013] eKLR

    No personal interest needed to file a petition alleging infringement of the right to a clean and healthy environment

  • Kenya Anti-corruption Commission v Online Enterprises Limited & 4 others
    [2019] eKLR

    Public land not available for allocation; allocation in breach of the Constitution

  • Arthi Highway Developers Limited vs West End Butchery Limited & 6 Others
    [2015] eKLR

    Burden on respondents to demonstrate lawful allocation of public land

  • Mureithi & 2 Others (For Mbari Ya Murathimi Clan) vs Attorney General & 5 Others
    Nairobi HCMCA No. 158 of 2005 [2006] 1 KLR 443

    Failure to demonstrate lawful allocation of public land for a private purpose

  • Chemei Investments Limited vs The Attorney General & Others
    Nairobi Petition No. 94 of 2005

    Failure to demonstrate lawful allocation of public land

  • Adrian Kamotho Njenga vs Council of Governors & 3 Others
    [2020] eKLR

    1st respondent's failure to discharge constitutional and statutory duty

  • Case Concerning the Gabcikovo-Nagymaros Project (Hungary v Slovakia)
    1997 WL 1168556 (ICJ)

    Failure to discharge duty regarding environment

  • Anarita Karimi Njeru vs Republic
    [1979] eKLR

    Precision required in pleading constitutional violations

  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others
    [2013] eKLR

    Precision in pleading constitutional violations

  • Council of Civil Service Unions vs Minister for the Civil Service
    [1984]

    Cited by 2nd, 5th and 6th respondents on certiorari/judicial review

  • Joccinta Wanjiru Raphael vs William Nangulu Divisional Criminal Investigations Officer Makadara & 2 Others
    [2014] eKLR

    Cited by respondents on inordinate delay in seeking judicial review

  • Commissioner of Lands vs Kunste Hotel Limited
    [1997] eKLR

    Cited by respondents on delay in seeking judicial review

  • Ostenah Ogero Taracha v Ethics & Anti-Corruption Commission & Attorney General
    [2017] eKLR

    Violation of rights must be proved; burden of proof under Section 107(1) Evidence Act

  • Godfrey Paul Okutoyi & others vs Habil Olaka & Another
    (2018) eKLR

    Constitutional petitions only for breach of Constitution or rights; other claims to appropriate forum

  • Bernard Murage vs Fine Serve Africa Ltd & others
    (2015) eKLR

    Where alternative statutory remedy exists it should be pursued first

  • Milimani Splendor Management Limited v National Environment Management Authority & 4 others
    [2019] eKLR

    Environmental restoration orders; prevention principle; riparian reserve protection

  • In the Matter of the National Land Commission
    Advisory Opinion Reference No. 2/2014 [2015] eKLR

    NLC took over Commissioner of Lands' functions under Sixth Schedule clause 7

Jurisdiction invoked
Articles 22(1), 23(3), 70 and 162(2) of the Constitution of Kenya 2010 (constitutional petition on environment and land)

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, "Kariuki & 3 others (Suing as Chairman, Vice Chairlady, Secretary and Treasurer of members on their behalf and of Lake Naivasha Riparian Association) v National Land Commission & 5 others", Case Analysis (2023). Environment & Land Petition 17 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15962/eng@2023-02-23

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