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ELCDismissed· [2024] KEELC 4866 (KLR)

Mohamed v Lapsset Corridor Development Authority & 2 others (Environment & Land Petition E004 of 2022) [2024] KEELC 4866 (KLR)

Environment and Land Court
20 June 2024
JMJ. M. MUTUNGI
5,464 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a challenge to the Lapsset Corridor land acquisition, ruling public participation was adequate and compensation claims were premature.

What this practically means

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Executive summary

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The Petitioner, the then Member of Parliament for Fafi Constituency and a resident thereof, petitioned in public interest on behalf of his constituents, alleging that the Respondents breached Articles 40, 42, 43, 47 and 63 of the Constitution in rolling out the Lapsset Corridor project through Fafi Constituency, Garissa County, without public participation and without compensating residents whose community land was compulsorily acquired. He sought declarations, a permanent injunction against construction, alternative compensation, and damages. The 1st Respondent (Lapsset Corridor Development Authority) asserted that extensive stakeholder engagement had been conducted since 2018 and that the National Land Commission spearheaded the acquisition process; the 3rd Respondent (Garissa County Government) averred it held the unregistered community land in trust and that the suit was premature and the Petitioner lacked locus standi. The court framed four issues: locus standi, precision of pleading, due process and public participation, and the injunction threshold. It held the Petitioner had standing under Articles 22 and 258; that the Petition met the Anarita Karimi Njeru precision threshold; that public participation was sufficient on the evidence, particularly the National Land Commission's participation report; that the land was unregistered community land held in trust by the County Government, which alone was entitled to receive compensation monies; and that, given the project's urgent public and transnational character, the Commission was properly entitled to take possession under Section 120(2) of the Land Act before completing the inquiry and award. The Petitioner's suit was therefore premature. The Petition was dismissed with no order as to costs, each party bearing its own costs.

Key legal issues

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01

Locus standi of the Petitioner

Holding

The Petitioner, as MP for and a resident of Fafi Constituency, had locus standi under Articles 22(2)(b) and 258 of the Constitution to sue on behalf of his constituents

Reasoning

The court applied Article 258(1)(b) and Article 22(2)(b) which broaden standing, and endorsed the Court of Appeal's approach in Mumo Matemu that access to courts should not be hindered absent bad faith or abuse of process. Since the Petitioner was both a resident and a representative of his constituents, he had the right to institute the petition.

p. 5
02

Precision of pleading constitutional violations (Anarita Karimi Njeru threshold)

Holding

The Petition satisfied the Anarita Karimi Njeru threshold as it identified the constitutional provisions violated, the manner of violation, and was supported by evidence

Reasoning

The court restated that violations must be pleaded with reasonable precision, citing Anarita Karimi Njeru, Mumo Matemu and Timothy Njoya. On perusal of the pleadings, evidence and submissions, the Petitioner pleaded the provisions violated, the manner of violation and adduced evidence, so the Petition was properly before the court.

p. 6
03

Public participation in compulsory acquisition

Holding

Sufficient public participation was conducted; there was no breach of the requirement for public participation

Reasoning

Relying on the National Land Commission's report on public participation exhibited by the 1st Respondent, and holding that participation need not involve hearing every affected person, the court was satisfied that stakeholders including county leadership, elected leaders and members of the public were engaged, satisfying Article 10 of the Constitution.

p. 8
04

Community land and entitlement to compensation

Holding

The land was unregistered community land held in trust by Garissa County Government, which was the entity entitled to represent the community and receive compensation monies; the Petitioner's suit was premature as the inquiry and award stage had not been reached

Reasoning

The court found the land was unregistered community land under Article 63(3) and Section 6 of the Community Land Act, so the County Government as trustee was mandated to deal with acquisition issues. Because the Petition was filed before the Section 112 inquiry and award, and Section 120(2) of the Land Act justified taking possession in urgent public interest, the Petition was premature.

p. 10

Legal principles established

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  • Under Article 258 of the Constitution, a person acting as a member of or in the interest of a group or class of persons, or in the public interest, has locus standi to institute constitutional proceedings
  • Public participation does not require that every person be consulted or every view accepted; affected persons must be afforded an opportunity to be heard and considered before a project is implemented
  • Section 120(2) of the Land Act permits the National Land Commission, where there is urgent necessity and it would be contrary to the public interest to follow normal compulsory acquisition procedures, to take possession of land before an award is made
  • A claimant in a constitutional petition must plead the violations with reasonable precision as per Anarita Karimi Njeru
  • Unregistered community land is held in trust by the County Government, which is entitled to represent the community's interests and receive compensation monies under Section 6 of the Community Land Act

Court orders

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  1. 1.The Petition lacks merit and is dismissed
  2. 2.Each party to meet their own costs of the Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 10, 22(2)(b), 40(3), 42, 43, 47, 63, 258
  • Land Act, No. 6 of 2012Sections 107, 107A, 112, 112(1), 113, 114(2), 115, 119, 120(2), Part VIII (Sections 107-133)
  • Community Land Act, 2016Sections 2, 6, 6(2), 7, 7(1), 8
  • Land Value (Amendment) Act, 2019New Section 107A of the Land Act

Cases cited (7)

  • Gideon Mbuvi Kioko vs Attorney General & another
    (2017) eKLR
  • Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others
    (2013) eKLR
  • Khelef Khalifa & 2 others versus the Independent Electoral and Boundaries Commission and another
    (2017) eKLR
  • Anarita Karimi Njeru vs The Republic
    (1976-1980) KLR 1272
  • Dr. Rev. Timothy Njoya vs The Hon. Attorney General and Kenya Review Authority
    (2014) eKLR
  • African Gas and Oil Company Limited v Attorney General & 3 others
    [2016] eKLR
  • In the matter of Peter Makau Musyoka and Award of Mining Concessionary Rights to the Mui Coal Basin Deposits
    Constitutional Petition No. 305 of 2012 (2015) eKLR
Jurisdiction invoked
Articles 22, 40, 63 and 258 of the Constitution of Kenya, 2010 (constitutional petition on breach of Bill of Rights and community land provisions)

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, "Mohamed v Lapsset Corridor Development Authority & 2 others (Environment & Land Petition E004 of 2022) [2024] KEELC 4866 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4866/eng@2024-06-20

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