Trustees of the Church Commissioners of Kenya; Registered Trustees v National Land Commission (NLC) & another (Constitutional Petition 1 of 2024) (Environment and Land) [2024] KEELC 6448 (KLR)
The bottom line
#A Kenyan court cancelled illegal land allocations made over land reserved for a church and school, and ordered the church to be issued a title deed.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition met the threshold for a constitutional petition
The Petition met the threshold of reasonable precision under Anarita Karimi Njeru, having pleaded with particularity the violations of Articles 40, 60 and 62
The court applied the Mumo Matemu and Anarita Karimi Njeru standards requiring constitutional violations to be pleaded with precision. It found the Petition pleaded the constitutional basis under paragraph 2 items 2.25-2.33, specifying the articles contravened, the acts complained of (subdivision and allocation of the suit land to private individuals without notice or public participation), and the responsible state organs. It therefore held the Petitioner had dutifully complied with the pleading threshold.
Whether the allocation of the suit land to private individuals was lawful
The allocations were illegal, irregular, unprocedural and null and void as the land was public land reserved under Voi Part Development Plan No. 49 and the current occupants were not informed
The land was public land set aside by the PDP for a school and church. The District Plot Allocation Committee (1995) allotted it without notice, without advertisement including the suit property, and without public participation, contrary to Section 14 of the Land Act and the NLC Act. The uncontroverted evidence showed the school existed at the time of allocation. The court held the process was unprocedural and unlawful, tainting subsequent title entries.
Whether the Petitioner was entitled to certiorari and the other reliefs sought
Yes; the Petition being unopposed and the allocations unlawful, all prayers were granted including certiorari to quash the letters of allotment
The court found the NLC acted ultra vires in the allocation process and that judicial review is a means to hold those exercising public power accountable. Relying on Pastoli v Kabale, illegality, irrationality and procedural impropriety were established. The Petition was unopposed, and the court satisfied itself that refusing the prayers would be detrimental to the Petitioner's constitutional rights, so the Petition succeeded as sought.
Costs
Costs follow the event; the successful Petitioner was awarded costs against both Respondents
Relying on Section 27(1) of the Civil Procedure Act and Rule 26 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, and the authorities on costs following the event, the court held that since the Petitioner succeeded in establishing its case on a preponderance of probabilities, costs should be borne by the Respondents jointly and severally.
Legal principles established
#- A Part Development Plan must be drawn and approved before un-alienated Government land can be allocated, and letters of allotment must be based on the approved PDP
- It is the role of the National Land Commission, not a County Government, to allocate public land, subject to constitutional and statutory procedure
- The NLC's power is limited to inquiring into the legality of titles and recommending revocation to the Registrar; it has no power to revoke titles itself
- Judicial review is concerned with the process, not the merits, of a decision
Court orders
#- 1.Judgment entered in favour of the Petitioner as per the Petition dated 29th January 2016 in its entirety
- 2.Conservatory order restraining the Respondents, their agents, servants and or employees from encroaching on the suit land until the matter is heard and determined by the court
- 3.Order of Judicial Review of Certiorari removing into the court the letters of Allotment issued by the Commissioner for Lands to the private individuals over part of Voi Part Development Plan No. 49 dated 4th October 2010 and quashing them
- 4.Order directed to the 2nd Respondent to immediately cause the survey of the suit land and proceed to issue a title deed to the Petitioner
- 5.Permanent injunction restraining the Respondent or any other party from interfering with the Petitioner's ownership, occupation, use and interest over the suit land, from evicting or attempting to evict the Petitioners, or from issuing title deeds or alienating the suit land other than to the Petitioners
- 6.Costs and interest of the Petition awarded to the Petitioner and borne by the Respondents jointly and severally
- Jurisdiction invoked
- Articles 22, 23, 40(6), 47, 48, 60, 62, 67 and 165(3) of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Trustees of the Church Commissioners of Kenya; Registered Trustees v National Land Commission (NLC) & another (Constitutional Petition 1 of 2024) (Environment and Land) [2024] KEELC 6448 (KLR)", Case Analysis (2024). Constitution Petition dated 29th January 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6448/eng@2024-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.