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ELCOtherPetition dated 4th October, 2019 (Isiolo ELC)· [2024] KEELC 6708 (KLR)

Kuwam & 6 others v Cabinet Secretary Ministry of Defence & 5 others; Law Society Of Kenya & another (Interested Parties) (Environment & Land Petition 004 of 2021) [2024] KEELC 6708 (KLR)

Environment and Land Court
14 October 2024
29,283 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~117 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Isiolo declined to cancel the military's title over 350 square miles in Burat Ward, instead referring historical land injustice claims to the National Land Commission, while protecting over 20,000 residents from eviction.

What this practically means

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Executive summary

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This petition, filed on 4th October 2019 by seven individuals representing the Turkana, Samburu, Borana, Somali, Meru and Ndorobo communities of Burat Ward, Isiolo County (over 20,000 people), challenged a threatened eviction from approximately 350 square miles of claimed ancestral/community land. The petitioners sought declarations of rights violations (Articles 10, 27, 28, 29, 35, 39, 40 and 47), a declaration that the land is community land, a declaration voiding past alienations, general damages, and cancellation of Title Deed IR 6183 held by the Ministry of Defence for the School of Infantry. The 1st Respondent (Cabinet Secretary, Ministry of Defence) contended the land was set apart as quarantine/military land from the colonial era through gazette notices culminating in GN 1127 of 1952, reserved for the military by GN 3210 of 1977, and formally titled in 2006; the 2nd, 3rd, 4th and 6th Respondents argued the land is public land under Article 62(1)(b) and that historical claims lie with the National Land Commission. The Court found the petition primarily raises historical land injustices going back to the colonial era, acknowledged the communities' long occupation, and held that classification of the land and any impeachment of the military's title are best addressed by the National Land Commission under Article 67. It declined all five substantive prayers, referred all issues to the NLC (to complete its 2018 technical committee investigation within 24 months), confirmed the status quo restraining evictions, issued an advisory order for Alternative Justice System resolution, and ordered each party to bear their own costs given the public interest nature of the litigation.

Key legal issues

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01

Jurisdiction of the ELC over the petition and justiciability

Holding

The Court confirmed jurisdiction; the ELC has jurisdiction over all environment and land issues, and the issues raised by the petitioners are justiciable.

Reasoning

In the interlocutory ruling of 27 November 2023, the Court dismissed the 1st and 2nd Respondents' application seeking dismissal for want of locus standi, non-justiciability and lack of jurisdiction. It held that the ELC has jurisdiction over all environment and land issues and that the petition indubitably raises land issues. The non-exhaustion argument also failed because the NLC technical committee process had not been completed for over four years and petitioners cannot be denied access to courts due to the indolence of state institutions.

p. 8
02

Whether the suit land is public land or community land

Holding

The Court found the petition raises historical land injustices and that it was necessary to direct the National Land Commission to investigate all issues before any determination on classification or cancellation of title.

Reasoning

The Court acknowledged the historical injustices dating to the colonial era, noting Isiolo was a closed district within the Northern Frontier District where colonial government notices were issued without reference to inhabitants. Rather than adjudicate classification between public land under Article 62 and community land under Article 63, the Court invoked Article 67 and the National Land Commission Act, directing the NLC to complete the investigation initiated through its 2018 technical committee within 24 months.

p. 78
03

Whether Title Deed IR 6183 should be cancelled

Holding

The Court declined to cancel the title, holding that cancellation of the military's title cannot be ordered without consideration of grave consequences to national security, though it may be impeached in proper circumstances after NLC investigation.

Reasoning

The Court balanced the petitioners' claims against the military's crucial role in safeguarding national sovereignty. It noted the title could not simply be cancelled in the circumstances of the case and preferred to have the NLC investigate and make a definitive recommendation within 24 months, with the status quo preserved in the interim.

p. 79
04

Non-exhaustion of remedies (NLC)

Holding

The non-exhaustion objection was dismissed at interlocutory stage; at judgment, the Court found that the NLC technical committee's inchoate process should be completed rather than treated as unexhausted remedies.

Reasoning

The Court found the AG's submission that petitioners had not approached the NLC was not entirely correct, as the NLC had established a technical team in 2018 that never completed its work. The Court directed completion of that process rather than dismissing the petition for non-exhaustion.

p. 78
05

Protection of communities pending determination

Holding

The status quo order of 19 May 2021 was confirmed pending completion of the NLC investigation, restraining eviction of the communities from the land they presently occupy.

Reasoning

The Court extended the earlier consent status quo order to protect over 20,000 community members from eviction while the NLC investigates, and also to protect any other Kenyans living within the suit land when the petition was filed.

p. 79

Legal principles established

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  • Every Kenyan and every resident or group of Kenyans and residents has the constitutional right to access courts to canvas claims that their fundamental and constitutional rights have been infringed (standing/locus standi).
  • Status quo orders are meant to preserve the subject matter as it existed on the day of making the order.
  • Where a registered proprietor's root title is under challenge, it is not enough to dangle the instrument of title as proof of ownership; the registered proprietor must go beyond the instrument and prove legality of the title.
  • Court orders cannot be issued in vain; individuals found culpable of disobeying them will be personally liable for contempt.

Court orders

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  1. 1.All issues apposite to the petition referred to the National Land Commission, which may complete the work of the technical committee established in 2018, and must complete the investigation within 24 months
  2. 2.The Court declines to grant prayers (a), (b), (c), (d) and (e) in the petition
  3. 3.Status quo granted on 19th May, 2021 confirmed pending completion of the NLC investigation — restraining eviction of the applicants and the more than 20,000 members of the communities from the land they presently occupy measuring approximately 350 square miles comprising Burat Ward, Isiolo County
  4. 4.An advisory order issued advising the parties to explore resolution of the dispute through the Alternative Justice System (AJS) structures at the Isiolo Law Courts or generally through adoption of AJS
  5. 5.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1), 5, 10, 19, 20, 21, 22, 23, 24, 27, 28, 29, 35, 39, 40, 42, 43, 47, 50, 61, 62, 63, 64, 65, 66, 67, 159, 189, 239, 241, 258
  • Land Act, No. 6 of 2012Sections 107, 107A, 111, 133, 152B, 152C, 152D, 152E, 152G
  • Environment and Land Court Act, No. 19 of 2011Section 13
  • Land Regulations, 2017Regulations 63, 64, 66, 67
  • Community Land Act, No. 27 of 2016Sections 2, 4, 5, 6, 8, 11, 12, 14, 24, 33, 35, 39-42
  • Intergovernmental Relations Act, No. 2 of 2012Sections 33 and 35
  • Trust Land Act, Cap 288 (repealed)Sections 7, 8, 12, 13, 69
  • National Land Commission Act
  • Limitations of Actions Act
  • Land Acquisition Act (repealed)Section 6(2)
  • Crown Lands Ordinance (colonial)Sections 58, 59, 62; Sixth Schedule
  • Diseases of Animals Ordinance (colonial)Rules 21 and 28
  • Constitution of Kenya (repealed)Sections 70, 75, 114, 115, 116, 117, 118, 119, 120
  • African Charter on Human and Peoples' RightsArticle 14 (cited as Article 42 in the judgment)
  • Universal Declaration of Human RightsArticles 5, 13(1), 17

Cases cited (17)

  • Kenya Airlines Pilots Association (KALPA) Versus Another
    [2020] eKLR
  • Ayuma & 11 others (Suing on their own Behalf and on Behalf of Muthurwa Residents) v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 2 others; Kothari (Interested Party)
    [2013] KEHC 6003 (KLR)
  • Mohammed Hussein Yakub & Others and County Government of Mandera & 5 Others
    (2020) eKLR
  • County Government of Tana River v Mohamed Gorre Bulale & 3 others
    [2021] eKLR
  • Commissioner of Land Vs. Coastal Aquaculture
    (1997) eKLR
  • Eunice Grace Njambi, Kamau & Another Vs. Attorney General & 5 Others
    (2013) eKLR
  • Virenda Ramji Gudka & Others Vs. Attorney General
    (2014) eKLR
  • Joseph Ihugo Mwaura & Others Vs. the Attorney General & Others
    (2012) eKLR
  • Munyu Maina v Hiram Gathiha Maina
    Civil Appeal No. 239 of 2009 [2013] eKLR
  • Dina Management Ltd v. County Government of Mombasa & 5 Others
    Petition No. 8 (E010) of 2021
  • African Line Transport Co. Ltd v. The Hon. Attorney General, Mombasa
    HCCC No.276 of 2003 [2007] eKLR
  • Republic v Minister for Transport and Communication & 5 Others; exparte Waa Ship Garbage Collector and 15 Others
    (2006) 1 KLR (E&L) 563
  • Kipsoi Kinyanga & 93 Others v. Isiolo County Council & 3 Others
    Meru High Court Civil Suit No. 11 of 1995
  • KIPSOI Kinyanga & 90 Others Versus The Attorney General
    Meru High Court Civil Suit No. 11 of 1995
  • Isaiah Otiato & 6 others vs County Government of Vihiga
    [2018] eKLR
  • Anthony Miano & others vs Attorney General & others
    [2021] eKLR
  • Geofirey Muthiga Kabiru & 2 others vs Samuel Munga Henry & 1756 others
    [2015] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya; 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, "Kuwam & 6 others v Cabinet Secretary Ministry of Defence & 5 others; Law Society Of Kenya & another (Interested Parties) (Environment & Land Petition 004 of 2021) [2024] KEELC 6708 (KLR)", Case Analysis (2024). Petition dated 4th October, 2019 (Isiolo ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6708/eng@2024-10-14

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