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ELCDismissedPetition 12 of 2022 (Formerly Eldoret ELC Petition No. 2 of 2019)· [2023] KEELC 16877 (KLR)

Chuma & 5 others (Suing on their behalf and on behalf of Kapterik Clan, Kabon Clan, Toiyoi Clan, Kobil Clan, Saniak Clan & Tungoi Clan) v Kenya Flourspur Company Limited & 4 others

Environment and Land Court
17 April 2023
LWL. N. Waithaka
5,040 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court ruled that Kimwarer Mining Area is public land, not community land, dismissing the clans' petition.

What this practically means

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Executive summary

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Six members of the Kapterik, Kabon, Toiyoi, Kobil, Saniak and Tungoi clans petitioned the Environment and Land Court at Iten on their own behalf and on behalf of their clans, claiming that the Kimwarer Mining Area in Keiyo South, Elgeyo Marakwet County, is their community land. They acknowledged the land was set apart by Gazette Notices 320 and 321 of 1975 and leased to Kenya Flourspar Company Limited for 42 years, but contended that on expiry of the lease on 31 March 2018 the land reverted to the community. They sought conservatory orders, declarations that the land is community land, an order for its registration as community land under the Community Land Act, recall of the profiling of plot owners, declarations of violations of Articles 25, 27, 40, 47 and 63, and a permanent injunction, complaining of lack of public participation and secrecy in the proposed Arror and Kimwarer dam acquisitions under Gazette Notice No 925 of 1 February 2019. The 2nd and 5th respondents opposed through the affidavit of Francis Kipkech, contending the setting apart converted the land to public land, extinguishing customary claims, that compensation was paid, and that the gazette notice was a lawful preliminary step with adequate public participation. Waithaka J framed five issues and held that the land ceased to be community land upon being set apart in 1975, that expiry of the lease did not revert it to the community, and that the petitioners produced no evidence of the alleged secret allocations or wrongful beneficiary listings. The notice of intention to acquire was held to be a preliminary step whose disputes fall under section 107(7) of the Land Act. The Petition was dismissed with costs to the respondents.

Key legal issues

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01

Status of Kimwarer Mining Area - public or community land

Holding

KMA ceased to be community land upon being set apart in 1975 and is public land

Reasoning

The petitioners acknowledged the land was set apart by Gazette Notices 320 and 321 of 1975 and leased to the 1st respondent. Relying on the Mbosio and Bahola decisions, the court held setting apart extinguished customary claims. The petitioners produced no evidence that the land reverted on expiry of the lease in 2018.

02

Whether respondents' activities violated the petitioners' constitutional rights

Holding

No violation; the Government as custodian of public land may use and develop it subject to applicable laws

Reasoning

Since the land is public land, the petitioners' claims premised on residence, occupation and entitlement were misplaced. There could be no compulsory acquisition of land already public. The claims founded on community ownership could not sustain a constitutional violation claim.

p. 6
03

Whether Gazette Notice No 925 of 1 February 2019 violated or threatened the petitioners' rights

Holding

No; the notice was merely an intention to acquire, and disputes over listed owners are to be resolved under section 107(7) of the Land Act

Reasoning

The notice was issued under sections 112 and 162(2) of the Land Act but was in substance a notice under section 107(5). Whether the persons listed are actual owners entitled to compensation is a matter for the statutory acquisition process, not the petition. The petitioners failed to name any wrongly listed beneficiary.

p. 9
04

Whether public participation and access to information rights were violated

Holding

No; respondents adduced evidence of stakeholder engagement and the petitioners did not prove a declined request for information

Reasoning

The replying affidavit exhibited minutes of community meetings of 24-10-2018 and 6-11-2018. The petitioners' bare assertion of no public participation was unsubstantiated. Under the Access to Information Act and Fair Administrative Action Act, petitioners had to prove they requested information and were refused, which they did not.

p. 8

Legal principles established

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  • Setting apart of trust land under section 117(2) of the former Constitution extinguishes all customary law rights, interests or benefits over the land set apart
  • Expiry of a lease granted over set-apart land does not revert the land to the community
  • He who alleges must prove his allegations

Court orders

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  1. 1.The Petition is dismissed with costs to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 20, 22(3), 25, 27, 28, 35, 40(1), 40(3), 47(1), 51(1), 60, 62(1)(f), 63, 63(3), 67(2)(e)(h), 69, 70, 159
  • Constitution of Kenya (revised)Sections 117, 117(2), 118
  • Community Land ActSections 5(4), 6(1), 22
  • Land Act, 2012Sections 107, 107(5), 107(7), 110, 112, 143, 162(2)
  • Fair Administrative Action Act, No 4 of 2015Sections 4(1)(2)(3), 12
  • Access to Information Act, No 31 of 2016Section 4(1)
  • County Government ActSections 6(1), 87
  • Evidence Act, Cap 80Sections 60, 107

Cases cited (11)

  • Athman Mbosio Mwakulu & another v. National Land Commission & 4 others
    (2021) eKLR

    Effect of setting apart trust land under section 117(2) of former Constitution extinguishes customary rights

  • Bahola Mkalindi v. Michael Seth Kaseme & 2 others
    (2013) eKLR

    Same proposition on extinguishment of customary claims upon setting apart

  • Baker v Canada (Minister of Citizenship & Immigration)
    2 S.C.R. 817

    Fair administrative action - right to be heard, as cited in Republic v National Land Commission ex parte Archdiocese of Nairobi

  • Republic v. National Land Commission & 2 others ex parte Archdiocese of Nairobi Kenya Registered Trustees (St. Joseph Mukasa Catholic Church Kahawa West)
    (2018) eKLR

    Source of Baker principle on fair administrative action

  • Mandeep Chauhan v. Kenyatta National Hospital & 2 others
    (2013) eKLR

    Opportunity to be heard in fair administrative action

  • Council of Civil Service v Minister for Civil Service
    (1984) 3 ALL ER 935

    Fair hearing principles, as cited in Kuria Greens Limited

  • Kuria Greens Limited v. Registrar of Titles & another
    (2011) eKLR

    Source of Council of Civil Service principles

  • Famy Care Limited v. Public Procurement Administrative Review Board & another
    (2012) eKLR

    Right of access to information

  • Mohammed Ali Baadi and others v Attorney General & 11 others
    (2018) eKLR

    Public participation requirements

  • Henry Wainaina Wakihoro & Another v. National Land Commission & 2 others
    (2018) eKLR

    Prematurity of challenging a notice of intention to acquire before a dispute exists

  • Kiambu County Government v. Robert N. Gakuru & Others
    (2017) eKLR

    Sufficiency of public participation

Jurisdiction invoked
Articles 10, 20, 22(3), 27(1), 28, 40, 47, 60, 63, 67(2)(e)(h), 69, 70 and 159 of the Constitution of Kenya, 2010; Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Chuma & 5 others (Suing on their behalf and on behalf of Kapterik Clan, Kabon Clan, Toiyoi Clan, Kobil Clan, Saniak Clan & Tungoi Clan) v Kenya Flourspur Company Limited & 4 others", Case Analysis (2023). Petition 12 of 2022 (Formerly Eldoret ELC Petition No. 2 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16877/eng@2023-04-17

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