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)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over the petition and justiciability
The Court confirmed jurisdiction; the ELC has jurisdiction over all environment and land issues, and the issues raised by the petitioners are justiciable.
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.
Whether the suit land is public land or community land
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.
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.
Whether Title Deed IR 6183 should be cancelled
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.
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.
Non-exhaustion of remedies (NLC)
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.
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.
Protection of communities pending determination
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.
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.
Legal principles established
#- 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
#- 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.The Court declines to grant prayers (a), (b), (c), (d) and (e) in the petition
- 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.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.Each party to bear their own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.