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ELCPartially AllowedJudicial Review E008 of 2024 (Notice of Motion dated 28.2.2024)· [2024] KEELC 6728 (KLR)

Mugwika, Liquidator of Abogeta Farmers Cooperative Society Limited v CECM Lands, Housing, Urban Areas, and Physical Planning of the County Government of Meru & 8 others; Service & 3 others (Interested Parties) (Environment and Land Case Judicial Review Application E001 of 2024) [2024] KEELC 6728 (KLR)

Environment and Land Court
9 October 2024
4,785 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a county's re-allocation of reserved cooperative land because officials skipped the required public notices and hearings.

What this practically means

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Executive summary

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The ex-parte applicant, Abogeta Farmers' Cooperative Society Ltd (under liquidation, acting through its liquidator Charles Muchui Mugwika), moved the court by notice of motion dated 28.2.2024 seeking certiorari to quash minutes, proceedings and decisions of the respondents dated 10.8.2023 changing the reservation plans and surveys of L.R No. Nkuene/Mitunguu/190, and prohibition of their implementation. The 1st-4th, 6th-9th respondents and the 2nd interested party opposed through preliminary objections and replying affidavits, contending the applicant lacked locus standi after liquidation, the suit was res judicata following Petition E003 of 2020, the court lacked jurisdiction under the Cooperative Societies Act, the land was public trust land properly re-allocated after public participation, and an appeal was pending before the Court of Appeal. The court framed six issues. It held the applicant had standing since proceedings commenced when it could sue and the liquidator's mandate was extended by gazette notice; res judicata failed because the former constitutional petition did not determine the legality of the 2023 change of reservation; the ELC, not the Cooperative Tribunal, had jurisdiction as the Tribunal cannot grant prerogative writs; and the respondents' process was illegal, irrational and procedurally improper because the National Land Commission did not gazette and publish the required notices, and public participation through barazas cannot replace statutory procedures under the Land Act. The court quashed the impugned minutes, decisions and communications in so far as they changed the reservation of the suit land, issued a six-month prohibition order to allow consultation between the County Government and the liquidator, and awarded costs to the ex-parte applicant.

Key legal issues

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01

Locus standi of the liquidated society and its liquidator

Holding

The ex-parte applicant had standing: proceedings commenced while it could sue, its liquidator's mandate was extended by gazette notice, and no contrary evidence displaced its demonstrable interest

Reasoning

The court found the mandate to sue existed when proceedings commenced and was enlarged by gazette notice, which was unchallenged. No official findings from the Commissioner/Registrar of Cooperatives or the Cooperative Tribunal established the applicant as non-existent or distinct from the reserved entity, so the locus standi objections failed.

p. 6
02

Res judicata

Holding

The plea of res judicata failed: the former constitutional petition did not determine the legality of the July–August 2023 change of reservation under the Land Act and Article 47

Reasoning

The former suit was a constitutional petition while the instant matter is judicial review. The decree in the former suit revoked and reversed titles but did not adjudicate the validity of the 2023 proceedings and decisions. Relying on the John Florence dicta distinguishing constitutional petitions from judicial review, the plea was improperly taken.

p. 6
03

Jurisdiction of the ELC vis-à-vis the Cooperative Tribunal

Holding

The ELC has jurisdiction; the Cooperative Tribunal cannot grant prerogative writs

Reasoning

Jurisdiction derives from Article 162(2)(b) and Section 13 of the Environment and Land Court Act, covering land use planning, title and tenure. The reliefs sought are prerogative writs under Articles 22, 23, 47 and 50(1) of the Constitution and the Fair Administrative Action Act, which the Tribunal has no power to grant.

p. 6
04

Legality of the change of reservation and reallocation process

Holding

The process was unlawful: the NLC did not gazette or publish notice as required by the Land Act, the Regulations and Rules, and public participation cannot replace statutory procedures

Reasoning

Sections 12–18 of the Land Act, the Land (Allocation of Public Land) Regulations 2017 and the Land (Conversion of Land) Rules 2017 prescribe notification, gazettement and allocation methods. The 27.7.2023 notice was not gazetted or published in a newspaper, attendees did not apply for or tender for the land, and reserved land may not be allocated under Section 12(2)(f). The decisions were thus illegal, irrational and procedurally improper.

p. 8
05

Right to fair administrative action

Holding

The applicant's rights under Article 47 and the Fair Administrative Action Act were violated; no specific notice was given before withdrawing the reservation

Reasoning

After implementation of the earlier decree, the land retained its status as reserved land and did not revert to the County Government. Withdrawal of a reservation required notice and a fair hearing. The record did not show the Abogeta Societies or the applicant were given specific notice as interested parties, nor reasons for the administrative action.

p. 9

Legal principles established

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  • Judicial review succeeds where a decision is tainted with illegality, irrationality or procedural impropriety
  • Public participation through barazas is not a substitute for the statutory notification and allocation procedures in the Land Act
  • Reserved public land may not be allocated by the National Land Commission
  • An entity whose land reservation is to be withdrawn is entitled to notice and a fair hearing before the land reverts for reallocation
  • The ELC has power to grant prerogative orders including certiorari, prohibition and mandamus

Court orders

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  1. 1.Orders of certiorari calling up, quashing, invalidating and nullifying the minutes, decisions, resolutions and communications in annexures CMM 007 – CMM 08 (a)&(b) dated 10.8.2023, 15.8.2023 and 12.8.2023, in so far as they changed the reservations, plans, survey maps and re-planning of L.R No. Nkuene/Mitunguu/190
  2. 2.A prohibition and inhibition order issued for a period of six months, during which the County Government of Meru and the liquidator shall undertake consultation in liaison with the appointing authority to hasten any pending liquidation exercise relating to the suit land
  3. 3.Costs awarded to the ex-parte applicant

Authorities

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Legislation

  • Cooperative Societies ActSections 65, 66, 68(1)(k), 76(1)
  • Constitution of Kenya (former)Section 117(3)
  • Constitution of Kenya, 2010Articles 22, 23, 47, 50(1), 62, 63, 64, 162(2)(b)
  • Environment and Land Court ActSections 4, 13, 13(1)
  • Fair Administrative Action ActSections 4, 5, 5(2), 9, 11
  • Civil Procedure ActSection 7
  • Evidence ActSections 107-109
  • Land ActSections 7, 8(a),(c)(ii), 9, 12, 12(2)(f), 13, 14, 15, 16, 16(2), 17, 18
  • Land (Allocation of Public Land) Regulations 2017Rule 3
  • Land (Conversion of Land) Rules 2017Rules 15-30
  • Public Procurement and Asset Disposal Act 2015not specified
  • Survey Actnot specified
  • Physical Land Use and Planning Act 2019not specified

Cases cited (21)

  • Adero & Another vs Ulinzi Sacco Society Limited
    (2002) 1 KLR 577
  • Kharisa Chengo vs Law Society of Kenya
    (2014) eKLR
  • Republic vs Kenya National Examinations Council, Ex-parte Githenji & others
    Civil Appeal No. 266 of 1966
  • Municipal Council of Mombasa vs Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
  • Independent Electoral and Boundaries Commission vs Maina Kiai & 5 others
    (2017) eKLR
  • Republic vs. Devon County Council Ex-parte P. Baker
    (1995) 1 ALL ER
  • Council of Civil Service vs Minister for Civil Service
    (1984) 3 ALL ER 935
  • Maina Kiai and others vs IEBC
    (2017) eKLR (supra)
  • D.T. Dobie & Company (Kenya) Limited vs Joseph Muchina & another
    (1980) KECA 3 (KLR)
  • John Florence Maritime Services Limited & Another vs Cabinet Secretary Transport & Infrastructure & 3 others
    (2015) eKLR
  • Pastoli vs Kabale District Local Government Council and others
    (2008) 2 E.A 300
  • Republic vs Judicial Service Commission exparte Judith Pareno
    (2004) eKLR
  • Surman Investment Ltd vs Ministry of Heritage & Culture & others
    (2016) eKLR
  • Martin Nyaga Wambora vs Speaker of the Senate
    (2014) eKLR
  • Okiya Omtatah Okoiti vs Communication Authority of Kenya & others
    (2018)
  • Republic vs Registrar Ofices Mombasa Exparte Capoterra for Africa Ltd
    (2012) eKLR
  • John Peter Mureithi & others vs Attorney General & others
    (2006) eKLR
  • Prof. Ongeri vs Green Bay's Holdings & 7 others
    (2011) eKLR
  • Kepha Marebe and others vs Benson Mwangi & another
    (2015) eKLR
  • Law Society of Kenya vs Kinyua Head of the Public Service and others
    Petition E029 of 2022 (2022) KEELC 3962 (KLR)
  • Black's Law Dictionary 10th Edition
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act; Sections 4 and 13(1) of the Environment and Land Court Act

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, "Mugwika, Liquidator of Abogeta Farmers Cooperative Society Limited v CECM Lands, Housing, Urban Areas, and Physical Planning of the County Government of Meru & 8 others; Service & 3 others (Interested Parties) (Environment and Land Case Judicial Review Application E001 of 2024) [2024] KEELC 6728 (KLR)", Case Analysis (2024). Judicial Review E008 of 2024 (Notice of Motion dated 28.2.2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6728/eng@2024-10-09

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