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ELCDismissedPetition dated 7th February, 2024 (filed 8th February, 2024)· [2024] KEELC 4285 (KLR)

Sang & 5 others v Board of Management Kenana Secondary School & 2 others (Environment & Land Petition 001 of 2024) [2024] KEELC 4285 (KLR)

Environment and Land Court
23 May 2024
2,722 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 dismissed residents' challenge to a school built on disputed land, finding community meetings proved adequate public participation.

What this practically means

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Executive summary

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The Petitioners, residents of Kapkein Community and Lawina Village, petitioned the Environment and Land Court at Nakuru alleging that land parcel L.R No. Ngongongeri Settlement Scheme/302, reserved in 1997 for a primary school, was instead being used to construct Kenana Secondary School without public participation, in violation of Articles 10, 27, 47, 53, 186 and 187 of the Constitution and Section 24 of the National Government Constituencies Development Fund Act. They sought declarations, an order for a comprehensive public participation process, and a permanent injunction. The 1st Respondent, through its Principal Millicent W. Gitonga, deposed that Kenana Primary School, the registered owner of the land, resolved in parents' meetings to allocate seven acres for a secondary school, which was registered on 30th August 2022, with construction beginning on 9th December 2023. The 3rd Respondent raised a jurisdictional objection based on Section 56(3) of the NG-CDF Act and non-exhaustion of statutory remedies, which the court declined to address, holding it overtaken by events following its ruling of 14th March 2024 dismissing the conservatory application. Framing a single issue - whether the right to public participation was adhered to before construction began - the court applied Article 10(2)(a), Article 69(1)(d) and the Mui Coal Basin criteria, under which the test is effectiveness rather than any litmus test. Finding the meetings of 4th and 10th September 2018 proved by annexed minutes and affording the community an opportunity to air its views, the court held public participation adequate and dismissed the petition. As a public interest case, each party was ordered to bear its own costs.

Key legal issues

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01

Whether there was adequate public participation before commencement of construction of Kenana Secondary School

Holding

Public participation was conducted and was adequate; parents' meetings held on 4th and 10th September, 2018 afforded members of the public an opportunity to air their views, satisfying the Article 10(2) threshold.

Reasoning

The court applied Article 10(2)(a) and Article 69(1)(d) and the Mui Coal Basin criteria, under which the test for public participation is effectiveness, with no litmus test and no requirement that every individual's views control. Evidence from the affidavit of Millicent W. Gitonga, including annexed minutes, proved the meetings took place and were attended by hundreds of parents, who are members of the community, so the constitutional threshold was met.

p. 6
02

The 3rd Respondent's jurisdictional objection (lack of exhaustion under Section 56(3) of the NG-CDF Act)

Holding

The court declined to address the jurisdictional issue on its merits, deeming it overtaken by events given its earlier ruling of 14th March 2024 dismissing the conservatory application.

Reasoning

The 3rd Respondent had raised a preliminary ground that first-instance jurisdiction lay with the 2nd Respondent under Section 56(3) of the Act and that statutory remedies had not been exhausted. The court did not rule on the substance of that objection, instead noting its earlier ruling dismissing the Petitioners' conservatory application and holding that the jurisdictional issue had become overtaken by events as construction progressed.

p. 4

Legal principles established

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  • Facilitation of public participation is key to the legitimacy of a law, decision or policy, and public participation is adequate where members of the public are afforded an opportunity to air their views.

Court orders

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  1. 1.The Petition is dismissed for lack of merit
  2. 2.Each party shall bear its own costs, the court finding this to be a public interest case
Jurisdiction invoked
Article 10(2) of the Constitution of Kenya, 2010 (constitutional petition); 3rd Respondent contended first-instance jurisdiction reserved for the 2nd Respondent under Section 56(3) of the National Government Constituencies Development Act, 2015

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Sang & 5 others v Board of Management Kenana Secondary School & 2 others (Environment & Land Petition 001 of 2024) [2024] KEELC 4285 (KLR)", Case Analysis (2024). Petition dated 7th February, 2024 (filed 8th February, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4285/eng@2024-05-23

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