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ELCPartially AllowedPetition dated 23rd May 2024· [2024] KEELC 6767 (KLR)

Kalutu & 1704 others v County Government of Taita Taveta (Environment and Land Petition E005 of 2024) (Environment and Land) [2024] KEELC 6767 (KLR)

Environment and Land Court
16 October 2024
1,763 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Taita Taveta County cannot declare public land as community land — a Voi court nullified the gazette notice and ordered the squatter settlement process to continue.

What this practically means

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Executive summary

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The three Petitioners, residents and squatters on LR No. 3880/3 Taita Taveta (approximately 6,000 acres with about 3,300 inhabitants), petitioned against Gazette Notice No. 3052 dated 13th March 2024 and issued on 15th March 2024, by which the Governor of Taita Taveta County gazetted the land as community land to be held by the County Government in trust for communities represented by Mgeno Grazers Integrated CBO. The Petitioners contended the land was public land, having been surrendered to the Government by Teita Estate (1972) Ltd, and that settlement of squatters begun by the Ministry of Lands in 2019 and the National Land Commission in 2020 was thereby scuttled. They sought a declaration that the notice was illegal, unconstitutional, null and void, an order suspending its implementation, an order that the settlement process proceed, and costs. The Respondent entered appearance but filed no response or submissions. The court framed a single issue: whether the gazette notice was made contrary to the Constitution and other statutory powers. Applying the burden of proof on a balance of probabilities even in an undefended petition, the court found from the uncontroverted title that the land was surrendered to the Crown in 1953 and reverted to the Government, so it could not be community land. The court found violations of Articles 40, 47(1), 62(2) and 67(2)(a) and (h), declared the notice unconstitutional, illegal and null and void, ordered the settlement process to proceed as earlier planned, and directed that each party bear its own costs.

Key legal issues

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01

Validity of Gazette Notice No. 3052 classifying LR No. 3880/3 as community land held in trust by the County Government

Holding

The gazette notice was unconstitutional, illegal and null and void as the land was public land which had been surrendered to the Government and not community land

Reasoning

The title produced in evidence showed the land was surrendered to the Crown in 1953, a position uncontroverted by the Respondent. Having been surrendered, the land reverted to the Government and could not be community land. The County Government therefore lacked the mandate to issue the notice, and there was no evidence of engagement of the Petitioners before its issuance.

p. 4
02

Violation of constitutional provisions

Holding

The Respondent's action violated Articles 40, 47(1), 62(2) and 67(2)(a) and (h) of the Constitution

Reasoning

Gazetting public land as community land contrary to Article 62(2), without NLC mandate under Article 67(2), and without engaging the Petitioners in breach of Article 47(1) fair administrative action, rendered the Respondent's action unconstitutional.

p. 4
03

Burden of proof in an undefended petition

Holding

The petitioner bears the burden of proving the petition on a balance of probabilities even when the petition is undefended

Reasoning

The court noted the Respondent filed no response or submissions despite being granted opportunity, but the Petitioners still had to discharge the burden of proof, which the court found they did through the uncontroverted evidence of the title and surrender.

p. 3

Legal principles established

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  • Even where a petition is undefended, the petitioner retains the burden of proof and must discharge it on a balance of probabilities
  • Once land is surrendered to the Government, it cannot be gazetted as community land by a county government
  • The National Land Commission has the powers in respect of dealings with public land

Court orders

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  1. 1.A declaration that Gazette Notice No. 3052 issued on 15th March 2024 and dated 13th March 2024 by the County Government of Taita Taveta through its Governor Andrew Mwadime referring to L.R No. 3880/3 Taita Taveta as community land is unconstitutional, illegal and null and void
  2. 2.An order directing that the process of settling Mgeno Squatters do proceed as earlier planned
  3. 3.Each party to bear own costs of the petition
Jurisdiction invoked
Constitution of Kenya, Articles 40, 47(1), 62(2) and 67(2)(a) and (h); Environment and Land Court jurisdiction

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, "Kalutu & 1704 others v County Government of Taita Taveta (Environment and Land Petition E005 of 2024)  (Environment and Land) [2024] KEELC 6767 (KLR)", Case Analysis (2024). Petition dated 23rd May 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6767/eng@2024-10-16

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