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ELCPartially AllowedEnvironment & Land Petition 004 of 2021· [2023] KEELC 21791 (KLR)

Kuwam & 5 others v Cabinet Sec. Min. of Defence & 5 others

Environment and Land Court
27 November 2023
PNP.M. Njoroge
2,876 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Isiolo stopped new construction on disputed Isiolo land and confirmed that ordinary Kenyans can sue the State over land rights.

What this practically means

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Executive summary

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This interlocutory ruling by P.M. Njoroge, J of the Environment and Land Court at Isiolo determined two competing applications in a petition by six individuals purporting to represent Turkana, Samburu, Borana, Somali and Ndorobo communities claiming ancestral/community land in Burat Ward, Isiolo County, against state respondents including the Cabinet Secretary for Defence. The petitioners sought interim conservatory orders restraining further construction on the suit land and citation of School of Infantry officers for contempt of the status quo order issued on 19/5/2021. The 1st and 2nd respondents sought dismissal of the petition for want of locus standi, justiciability, non-exhaustion of alternative remedies, lack of jurisdiction, vacation of the status quo orders, and referral to the Intergovernmental Relations Technical Committee. The court granted the conservatory orders, holding that the respondents did not dispute constructing beyond the area they occupied when the status quo order was made. It dismissed the respondents' application in its entirety, affirming the constitutional right of access to courts, the justiciability of the issues, the court's jurisdiction over land matters, and excusing non-exhaustion given the National Land Commission's four-year inaction. The contempt citation prayer was dismissed because the individuals to be cited were not properly and individually named, though respondents were directed to obey the status quo orders on pain of personal contempt liability. Costs of both applications were made costs in the cause.

Key legal issues

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01

Interim conservatory orders pending petition

Holding

Granted; respondents did not dispute constructing buildings beyond the area occupied when the status quo order was issued

Reasoning

The parties agreed a status quo order was issued on 19/5/2021 and by consent approved. Applying the KALPA principle, status quo preserves the subject matter as at the date of the order. The 1st and 2nd respondents did not deny constructing beyond their occupation at that date, so construction beyond that footprint breached the order and conservatory orders were warranted.

p. 5
02

Locus standi of petitioners

Holding

Prayers on lack of locus dismissed; every Kenyan or resident has a constitutional right of access to courts

Reasoning

The court held that access to courts to vindicate fundamental and constitutional rights is constitutionally guaranteed and cannot be denied at the interlocutory stage. The respondents' objections based on the Community Land Act and lack of demonstrated authority were matters for the hearing, not a basis to strike out the petition at this stage.

p. 5
03

Exhaustion of alternative remedies

Holding

Dismissed; NLC had not determined the dispute over 4 years after a technical team was established, and petitioners cannot be blamed for unconstituted Community Land Act institutions

Reasoning

The court found the National Land Commission process had stalled for over four years and that failure to establish institutions mandated under the Community Land Act could not be blamed on the petitioners. Access to courts cannot be suspended by the indolence of state institutions.

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Jurisdiction of the Environment and Land Court

Holding

Court has jurisdiction; the petition indubitably raises land issues

Reasoning

The court found the respondents' jurisdictional objection nebulous, holding that the Environment and Land Court has jurisdiction over all environment and land issues and that the petition plainly raises land issues. Justiciability and policy objections were rejected for the same reasons as the locus objections.

p. 6
05

Contempt proceedings

Holding

Prayer for citation dismissed for lack of specificity, but respondents directed to obey the status quo orders on pain of personal liability

Reasoning

The court found the 1st, 2nd, 3rd and 6th respondents aware of the status quo order and directed obedience. However, contempt citations must name individuals properly; institutions cannot be jailed, and the prayer's defective drafting ('incoacy') warranted dismissal.

p. 6

Legal principles established

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  • A status quo order preserves the subject matter as it existed on the day the order was made
  • Every Kenyan and every resident has a constitutional right of access to courts to canvass claims of infringement of fundamental rights
  • Court orders must be obeyed by all, including state functionaries; failure exposes culpable individuals to personal liability for contempt

Court orders

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  1. 1.Prayer 3 in the Petitioners' application dated 10th June 2022 granted (interim conservatory order restraining construction of new buildings/projects on the suit land pending determination of the petition)
  2. 2.Prayer 4 in the Petitioners' application (citing parties for contempt) dismissed
  3. 3.Prayers 2, 3, 4, 5, 6, 7, 8, 9 in the 1st and 2nd respondents' application dated 16th November 2022 dismissed
  4. 4.Costs for both applications shall be in the cause
  5. 5.The 1st, 2nd, 3rd and 6th respondents directed to forthwith obey the status quo orders, failing which culpable individuals will be personally liable to punishment for contempt

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 66(1)
  • Constitution of KenyaArticle 67(2)(e) and (f)
  • Constitution of KenyaArticle 159(2)
  • Constitution of KenyaArticle 189(3) and (4)
  • Community Land ActSections 39-42
  • Intergovernmental Relations Act, No. 2 of 2012Sections 33 and 35

Cases cited (1)

  • Kenya Airlines Pilots Association (KALPA) Versus Another
    [2020] eKLR

    That a status quo order preserves the subject matter as it existed on the day the order was made

Jurisdiction invoked
Article 162(2)(b) of the Constitution - Environment and Land Court jurisdiction over environment and land disputes

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, "Kuwam & 5 others v Cabinet Sec. Min. of Defence & 5 others", Case Analysis (2023). Environment & Land Petition 004 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21791/eng@2023-11-27

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