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ELCDismissedPetition No. 12 of 2019 (formerly Petition No. 13 of 2017, ELC Nakuru)· [2024] KEELC 1261 (KLR)

Sang & 12 others v Principal Secretary. Ministry of Lands and Physical Planning & 33 others (Environment & Land Petition 12 of 2019 & Environment & Land Case 37 of 2020 (Consolidated)) [2024] KEELC 1261 (KLR)

Environment and Land Court
7 March 2024
8,101 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Eldoret dismissed the Ogiek/Dorobo community's land claims because titles were already issued, some parcels never existed, and one was a public utility plot.

What this practically means

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Executive summary

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This consolidated matter comprised a constitutional petition (originally filed at Nakuru in 2017 and transferred to Eldoret ELC in 2019) and Eldoret ELC Case No. 37 of 2020, consolidated on 30.9.2020 with the petition as the lead file. The petitioners, members of the Ogiek/Dorobo community, claimed to have been allocated various parcels at Cheboror Farm (LR No. 24644), excised from North Tinderet Forest, and sought declarations of ownership, issuance of title deeds and prohibitory orders, alleging violations of Articles 27, 28, 29, 40, 43 and 47. In ELC 37 of 2020 they sued the County Government of Uasin Gishu for trespass and injunctions. The Respondents countered that the farm was subdivided into 358 parcels per an approved members register, titles were issued in 2018 including to the petitioners, parcels 360 and 361 did not exist, and parcel 353 was reserved as a public utility town plot. The court framed six issues and held that: (1) the petition met the Anarita Karimi Njeru threshold under the liberal post-2010 approach; (2) the petition was overtaken by events as titles had been issued; (3) parcels 360 and 361 were non-existent; (4) parcel 353 was not available for alienation; (5) no rights violations were proved, the petitioners having obtained titles lawfully due to them and having been heard in meetings chaired by District Commissioners; and (6) costs should follow the event. Both the petition and ELC 37 of 2020 were dismissed with costs.

Key legal issues

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01

Whether the petition met the Anarita Karimi Njeru threshold

Holding

The petition met the threshold because the grievances (discriminatory exclusion from titling and deprivation of property under Articles 27 and 40) were discernible from the pleading despite imprecision

Reasoning

The court adopted the liberal post-2010 approach, noting the Mutunga Rules and decisions such as Tom Onyango, holding that Anarita Karimi precision should not lock out petitioners. The court could, without pain, discern that the petitioners alleged discrimination and deprivation of the right to own property under Articles 27 and 40.

p. 11
02

Whether the petition was overtaken by events

Holding

Yes; titles had been processed and issued using the approved members list, including to the petitioners themselves, leaving nothing to determine

Reasoning

The National Titling Centre used the approved members list of 358 parcels forwarded to the 2nd Respondent on 4.10.2018. The 1st, 4th, 5th and 6th Petitioners obtained titles to their parcels. Following Daniel Kaminja and Tanzania Roads Agency, the court found no live controversy remained.

p. 11
03

Existence of parcels 360 and 361

Holding

The parcels are non-existent as the approved members register shows the farm was subdivided into only 358 parcels

Reasoning

The approved members register used to generate titles showed 358 parcels. The petitioners' list purporting to go up to number 362 was signed by the Chief of Leinguse Location, who was not an official of either Ogiek Committee, and was not filed at the District Lands Office as required.

p. 12
04

Whether parcel 353 was available for alienation

Holding

No; parcel 353 (20.04 hectares) was reserved as Cheboror Farm Town plot, a public utility, and any claim to it by the 4th Petitioner is misplaced, null and void

Reasoning

The approved members register showed parcel 353 was reserved as a town plot. The court found implausible the claim that Stephen Kipkoech Bor surrendered a 2.02 hectare plot in exchange for 20.04 hectares; plot 115 remained in his name with a 2018 title.

p. 12
05

Whether the petitioners' constitutional rights (Articles 27, 28, 29, 40, 43 and 47) were violated

Holding

No violation established; the petitioners obtained titles lawfully due to them, and no evidence of discrimination, dignity or security violations, or unfair administrative action was adduced

Reasoning

No evidence showed names were omitted from the titling list. The town plots were allocated by ballot in meetings chaired by District Commissioners where the petitioners were heard and refused to pick ballots; the 1st Petitioner was later allocated plot 168. Article 40(6) does not protect unlawfully acquired property.

p. 13

Legal principles established

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  • Post-2010 Constitution, the Anarita Karimi Njeru precision requirement is applied liberally so as not to lock out petitioners, but a petition must still permit the court to discern the constitutional provisions said to be violated
  • A claim over a cause that has been overtaken by events, where no practical relief remains, will be dismissed
  • Land reserved as a public utility plot is not available for alienation, and a claim over it is null and void
  • A suit over a non-existent title or parcel cannot stand

Court orders

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  1. 1.The Petition No. 12 of 2019 is dismissed with costs to the Respondents
  2. 2.ELC No. 37 of 2020 is dismissed with costs to the Defendant

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27, 28, 29, 40, 43, 47
  • Land Registration ActSection 75
  • Government Lands Act cap 280 (repealed)Section 2
  • Physical Planning Act cap 286Section 3
  • Mutunga RulesRule 5(b)

Cases cited (20)

  • Anarita Karimi Njeru –Vs- Republic
    (1976 – 1980) KLR 1272
  • Wyclifie Gisebe Nyakina –Vs- Attorney Genaral & another
    (2014) eKLR
  • Peter O. Nyakundi & 68 others –Vs- The Principal Secretary, State Department of Planning Ministry of Devolution and Planning & Another
    Petition No 24 of 2015
  • Mumo Matemu –Vs- Trusted Society of Human Rights Alliance and others
    Civil Appeal No. 290 of 2012
  • Tom Onyango & 5 others –Vs- Independent Police Oversight Authority & 4 others
    (2015) eKLR
  • Judicial Service Commission –Vs- Speaker of the National Assembly & 8 others
    (2014) eKLR
  • Daniel Kaminja & 3 others (Suing as Westlands Environmental Caretaker Group) – Vs- County Government of Nairobi
    (2019) eKLR
  • Stephen Ranji & 7 others – Vs- Joseph Kihara Muithukia & 2 others
    (2011) eKLR
  • Grays Jepkemoi Kiplagat – Vs- Zakayo Chepkonga Cheruiyot
    (2021) eKLR
  • Kipsirgoi Investments Limited –Vs- Kenya Anti-Corruption Commission
    Eldoret CACA No. 288 of 2010
  • Kenya Anti-Corruption Commission – Vs- Trans Investment Limited & 6 others
    (2020) eKLR
  • Stephen Mwadoro & 56 others –Vs- Alhad Mohamed Hatimy
    (2020) eKLR
  • Julius K. Atunga –Vs- Naumy Jebyegon Kemboi
    (2014) eKLR
  • Tanzania Roads Agency –Vs- Kundan Singh Construction Ltd & another
    (2013) eKLR
  • Sanghani Investments Limited –Vs- Officer Incharge Nairobi Remand & Allocation Prison
    Nairobi Misc. Application 99 of 2006 (2007) eKLR
  • World Explorers Safaris Limited –Vs- Cosmopolitan Travel Limited & another
    (2021) eKLR
  • B –Vs- Attorney General
    (2004) EKLR
  • Republic –Vs- County Government of Kitui Ex-parte Fairplan Systems Ltd
    (2022) eKLR
  • Prof. J. Oloka Onyango & Others
    Constitutional Petition No. 8 of 2014
  • Kevin Turunga Ithagi v- Fred Ochieng & 5 Others
    [2015] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Constitution of Kenya, 2010 (Articles 27, 28, 29, 40, 43 and 47 invoked in the petition)

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, "Sang & 12 others v Principal Secretary. Ministry of Lands and Physical Planning & 33 others (Environment & Land Petition 12 of 2019 & Environment & Land Case 37 of 2020 (Consolidated)) [2024] KEELC 1261 (KLR)", Case Analysis (2024). Petition No. 12 of 2019 (formerly Petition No. 13 of 2017, ELC Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1261/eng@2024-03-07

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