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ELCDismissedEnvironment & Land Petition 20 of 2022· [2023] KEELC 21006 (KLR)

Kapoloni v Cabinet Secretary Ministry of Transport, Infrastructure, Housing, Urban Development & Public Works & 3 others

Environment and Land Court
26 October 2023
NMN.A. Matheka
3,103 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Petitioner, acting in the public interest under Article 22, petitioned the Environment and Land Court at Mombasa seeking declarations that leases and disposals of public land by the Kenya Ports Authority contravened Articles 60 and 70, an injunction halting further leasing or disposal pending a comprehensive policy and legal framework, an order directing a framework be put in place, and an order compelling KPA to audit and disclose all land it holds, has disposed of or leased, with particulars of purchasers, lessees and consideration. KPA objected that the petition disclosed no cause of action, sought to usurp executive and legislative functions, and was an abuse of process. The court, per N.A. Matheka J, held that land held by KPA is public land under Article 62(2) but is exclusively managed by the state organ itself, with NLC excluded by Article 62(2)(b); KPA's power to dispose of land is governed by Sections 12(2)(k) and 13(4) of the KPA Act. The Petitioner adduced no evidence of illegality in KPA's dealings, including the Memphis Limited lease, whose arbitral award is the subject of a live appeal. On the access-to-information prayer, the demand letter did not comply with Section 8 of the Access to Information Act and internal remedies under Section 14 were not exhausted. The petition was dismissed with no orders as to costs.

Key legal issues

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01

Management and disposal of land held by a state organ

Holding

KPA, as a body corporate and state organ, holds and may dispose of its land under Sections 12(2)(k) and 13(4) of the KPA Act; NLC has no role under Article 62(2)(b)

Reasoning

The court held that land held by KPA is public land under Article 62(2) but is to be exclusively managed by the state organ itself. The manner of dealing with such land is determined by the Authority subject to its parent Act, and the proviso requires government consent for land placed at its disposal by the Government.

p. 5
02

Proof of constitutional violation

Holding

Petition dismissed for want of evidence of illegality in KPA's land dealings

Reasoning

The petitioner produced no evidence that KPA's dealings breached the statutory procedure or Articles 60, 62(4), 73 and 232. The legality of the Memphis Limited lease was not demonstrated, and the pending appeal against the arbitral award could not be examined.

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03

Right of access to information

Holding

Audit/furnishing orders refused because the statutory request procedure was not followed and internal remedies not exhausted

Reasoning

The demand letter did not meet Section 8(1) requirements of the Access to Information Act, and Section 14 provides a review remedy that had to be exhausted before resorting to a constitutional petition.

p. 6

Legal principles established

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  • Land held, used or occupied by a national state organ such as KPA is public land under Article 62(2) which is to be managed by the state organ itself, not by the National Land Commission
  • A petitioner alleging violation of land policy principles bears the onus of establishing the specific acts of violation
  • A party seeking information from a state organ must comply with the procedure in Sections 8 and 9 of the Access to Information Act and exhaust internal remedies under Section 14 before petitioning the court

Court orders

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  1. 1.The petition dated 10th May 2022 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 259(1), 35, 40, 60, 62(2)(a)(b), 62(4), 70, 73, 232
  • Kenya Ports Authority ActSections 12(2)(k), 13(4), 72
  • Access to Information Act No. 31 of 2016Sections 8, 9, 14
  • Universities Act, 2012Section 60

Cases cited (4)

  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2014] eKLR

    Definition and role of public interest litigation and enlarged locus standi under Article 259(1)

  • Law Society of Kenya v Kinyua, Head of Public Service & 5 others; Migot-Adholla & another (Interested Party)
    (Environment & Land Petition E029 of 2022) [2022] KEELC 3962 (KLR)

    A state organ deals with its land as determined by itself subject to its governing statute; Article 62(4)

  • Katiba Institute v Presidents Delivery Unit & 3 others
    [2017] eKLR

    Importance of the right of access to information as a foundational right for democratic governance

  • Commission for Human Rights & Justice (CHRJ) & another vs Chief Officer, Medical Services County Government of Mombasa & 3 others
    (Constitutional Petition E003 of 2022) [2022] KEHC 12994 (KLR)

    Exhaustion of internal remedies under the Access to Information Act as a condition precedent

Jurisdiction invoked
Article 22 of the Constitution (enforcement of Bill of Rights); Article 162(2) establishing the Environment and Land Court

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, "Kapoloni v Cabinet Secretary Ministry of Transport, Infrastructure, Housing, Urban Development & Public Works & 3 others", Case Analysis (2023). Environment & Land Petition 20 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21006/eng@2023-10-26

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