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)
The bottom line
#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
#Executive summary
#Key legal issues
#Locus standi of the liquidated society and its liquidator
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
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.
Res judicata
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
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.
Jurisdiction of the ELC vis-à-vis the Cooperative Tribunal
The ELC has jurisdiction; the Cooperative Tribunal cannot grant prerogative writs
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.
Legality of the change of reservation and reallocation process
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
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.
Right to fair administrative action
The applicant's rights under Article 47 and the Fair Administrative Action Act were violated; no specific notice was given before withdrawing the reservation
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.
Legal principles established
#- 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
#- 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.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.Costs awarded to the ex-parte applicant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.