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ELCPartially AllowedPetition dated 6/4/2023 (filed 14/4/2023), Environment and Land Court, Nyamira· [2024] KEELC 1037 (KLR)

Gisesa v National Land Commission & 4 others; Ministry of Lands & Physical Planning & 3 others (Interested Parties) (Environment & Land Petition E001 of 2023) [2024] KEELC 1037 (KLR)

Environment and Land Court
15 February 2024
21,024 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~84 min to read original · ~4 min brief

The bottom line

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Kisii and Nyamira Counties cannot charge Keroka traders twice - the court says paying dues to two counties violates constitutional property rights.

What this practically means

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Executive summary

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The Petitioner, a Member of the Nyamira County Assembly acting in the public interest, petitioned the Environment and Land Court at Nyamira to compel the National Land Commission, the National Executive and Parliament to resolve the long-standing boundary dispute between Kisii and Nyamira Counties over Keroka town, and to declare the alleged double taxation of Keroka traders unconstitutional. Kisii County opposed the Petition and filed a Cross-Petition contending that the Court's jurisdiction was ousted because delimitation of boundaries is a preserve of the IEBC under Articles 88, 89, 184 and 188. The 5th and 6th Interested Parties similarly urged want of jurisdiction and lack of proof of the double taxation claim. The Court, invoking its earlier Ruling of 25/5/2023, affirmed jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act, having directed a locus visit by surveyors, the IEBC and the Directorate of Surveys. Their joint Report of 29/6/2023 fixed the boundary at Keroka, which the Court adopted, holding the County, electoral and land registration boundaries coincide. The Court declared forced payment of dues to both Counties a gross violation of Article 40(3), ordered each County to confine revenue collection to its territory and to account to its County Assembly for joint account monies within 90 days. Disputes over the 2014 inter-County service delivery agreement were referred to the Intergovernmental Relations Act mechanisms. Mandatory orders against Parliament, the Executive and the NLC were refused; the Petition was otherwise allowed with costs against Kisii and Nyamira County Governments jointly and severally.

Key legal issues

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01

Jurisdiction of the ELC over the boundary dispute

Holding

The Court had jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act as previously determined in its Ruling of 25/5/2023, since the dominant issue is the boundary, a dispute relating to occupation of and title to land.

Reasoning

The Court relied on its earlier Ruling establishing that Section 13(2)(a), (c) and (e) of the Environment and Land Court Act confers power to determine disputes relating to boundaries, rates and rents. Determining prayers (c), (g) and (k) would discharge its mandate. The Court had also ordered a locus visit with experts which produced a joint boundary Report that settled the issue.

p. 31
02

Determination of the Kisii–Nyamira boundary at Keroka

Holding

The joint Report by the IEBC, Directorate of Surveys and State Department for Lands dated 29/6/2023 settled the boundary; the Court adopted it and held the County, electoral and registration boundaries coincide.

Reasoning

The Court adopted the Report as clear and unequivocal. It noted that although the IEBC delineates only constituencies and wards, no single constituency or ward falls within two Counties, so delineation reveals County boundaries. The Districts and Provinces Act, 1992 delineated district boundaries which became County boundaries.

p. 33
03

Double taxation of Keroka residents

Holding

Forcing residents to pay rates, rents or dues to both Counties violates Article 40(3); each County must confine revenue collection to its territory; Counties must account for joint account monies to their assemblies.

Reasoning

The Court found no evidence that either County authorised its officers to collect revenue beyond its jurisdiction and made no adverse or compensatory orders, but directed each County to confine itself to its territory and to account to its County Assembly for monies held in joint accounts since 2013.

p. 41
04

Whether the inter-County service delivery agreement dispute is an Intergovernmental dispute

Holding

It is an Intergovernmental dispute to be first referred to mediation, arbitration or resolution under the Intergovernmental Relations Act, before any court recourse, per Articles 189(3) and (4) and Sections 30–35 of the Act.

Reasoning

Guided by Isiolo County Assembly Service Board and International Legal Consultancy Group, the Court applied the doctrines of constitutional avoidance and exhaustion of statutory dispute resolution mechanisms, while preserving access to Court where such mechanisms fail or the other party is unwilling.

p. 47
05

Alleged failure by Parliament and the National Executive

Holding

No legislation is required by the Constitution for resolving County boundary disputes (no lacuna), and no evidence was tendered that other Counties cannot tell where their boundaries lie, so those mandatory orders were refused.

Reasoning

The Court found Article 188 already provides the process for altering County boundaries and Article 261(1) with the Fifth Schedule shows where specific legislation is required. Absent such requirement and absent proof of any wider problem, neither Parliament nor the Executive can be blamed for failing to undertake what the law does not require.

p. 22

Legal principles established

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  • The County, electoral and land registration boundaries at Keroka coincide and the boundary between Kisii and Nyamira Counties there is determinable from existing records
  • Forcing residents of a border town to pay dues to two Counties is a gross violation of property rights under Article 40(3)
  • There is no provision in law for two or more Counties to collect revenue within the same jurisdiction or place
  • Anybody purporting to use the inter-County agreement to collect revenue beyond his area of jurisdiction commits an offence
  • An Intergovernmental dispute over the inter-County service delivery agreement must first be referred to the dispute resolution machinery under the Intergovernmental Relations Act

Court orders

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  1. 1.A declaration that forcing the residents of Keroka town to pay rates, rents or any other dues to both Kisii and Nyamira Counties is a gross violation of the affected traders' property rights under Article 40(3) of the Constitution
  2. 2.A mandatory order that each County confines itself within its territory in respect to the collection of Rents, Rates, licenses and other statutory Revenues
  3. 3.A mandatory order compelling the respective County Governments of Nyamira and Kisii to give an account to their respective County Assemblies on how they have utilized the money held in the joint accounts opened for revenue collections in Keroka since 2013, within 90 days
  4. 4.That any dispute over the 21/5/2014 service delivery agreement be first referred to mediation, arbitration or resolution under the Intergovernmental Relations Act No. 20 of 2012
  5. 5.Declaration that there is no lacuna in law requiring Parliament to enact legislation on resolving County boundary disputes
  6. 6.The Petitioner will have the costs of the Petition against the 4th and 5th Respondents jointly and severally

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 3, 4, 6, 10, 19, 20, 21, 22, 23, 24, 25, 27, 40, 43, 47, 50, 58, 67, 88, 89, 94(3), 129, 130, 131, 156, 159, 160, 162(2)(b), 165, 174, 184, 188, 189, 209, 258, 259, 261; Fifth Schedule; Second Schedule; Sixth Schedule Section 27; First Schedule; Chapter 5, 11
  • National Land Commission Act, No. 5 of 2012Sections 5, 14, 15
  • Environment and Land Court Act, No. 19 of 2011Section 13
  • Districts and Provinces Act, 1992 (Cap 105A)Section 6
  • Intergovernmental Relations Act, No. 2 of 2012Sections 3(f), 30, 31, 32, 33, 34, 35; Part IV
  • County Governments Act, Cap 265Sections 116, 118
  • Urban Areas and Cities Act, No. 13 of 2011 (as amended 2019)Preamble; Section 4A
  • Independent Electoral and Boundaries Commission ActSection 4(c)
  • Public Finance Management ActSection 157
  • County Government Actreferenced on Intergovernmental disputes

Cases cited (10)

  • Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Anarita Karimi Njeru v The Republic
    (1976-1980) KLR 1272
  • Matindi & 3 others v The National Assembly of Kenya & 4 others; Controller of Budget & 50 others (Interested Parties)
    (Petition E080, E084 & E150 of 2023 (Consolidated)) [2023] KEHC 19534 (KLR)
  • Wanjiru Gikonyo & 2 others v National Assembly of Kenya & 4 others
    [2016] eKLR
  • lbert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others
    [2019] eKLR
  • Isiolo County Assembly Service Board & another v Principal Secretary (Devolution) Ministry of Devolution and Planning & another
  • International Legal Consultancy Group & another v Ministry of Health & 9 others
    NRB HC Petition 99 of 2015 [2016] eKLR
  • Council of County Governors v Cabinet Secretary Land, Housing & Urban Development & another
    [2017] eKLR
  • County Government of Nyeri v Cabinet Secretary, Ministry of Education Science & Technology Another
    Nyeri Petition No. 3 of 2014 [2014] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution as read with Section 13 of the Environment and Land Court Act, No. 19 of 2011

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, "Gisesa v National Land Commission & 4 others; Ministry of Lands & Physical Planning & 3 others (Interested Parties) (Environment & Land Petition E001 of 2023) [2024] KEELC 1037 (KLR)", Case Analysis (2024). Petition dated 6/4/2023 (filed 14/4/2023), Environment and Land Court, Nyamira. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1037/eng@2024-02-15

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