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ELCDismissedPetition dated 28th February 2024· [2024] KEELC 6867 (KLR)

Mwadime & 109 others (Being Members of Ore Basin Small Scale Farmers Group) v State Department for Correctional Services Ministry of Interior and National Administration & 6 others (Environment & Land Petition E003 of 2024) (Environment and Land) [2024] KEELC 6867 (KLR)

Environment and Land Court
17 October 2024
4,308 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Voi dismissed a community's claim of ancestral ownership over Voi's Ore Basin, confirming the land is public land reserved for the Kenya Prisons Service.

What this practically means

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Executive summary

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The Petitioners, asserting themselves as ancestral owners of approximately 1000 acres of unsurveyed land known as the Ore Basin along the Voi River, sought a declaration of ancestral ownership, revocation of the alleged allocation to the Kenya Prisons Service, demolition of structures, a permanent injunction against trespass, compensation for uprooted food crops, and costs. They alleged the land was allocated to the 2nd Respondent in 1989 without their knowledge or consent, and that in December 2023 the land was forcibly entered, crops uprooted and structures erected. The 1st to 5th Respondents maintained that the land was acquired from Voi Development Company Limited in 1987 by the Town Planning Committee, gazetted as Prison land by Legal Notice No. 139 of 1999, and that title processing began with a 2020 allotment letter from the National Land Commission; construction by the 6th Respondent was compensation for land taken for the SGR project. The 6th Respondent raised exhaustion and constitutional avoidance objections. The court distilled four issues and upheld its jurisdiction, holding the reliefs could only be granted by that court. On the evidence, the court found the suit land to be public land set aside for the Prisons Service, that the Petitioners had adduced no proof of ancestral ownership or occupation, and that no constitutional violation was established. The Petition was dismissed with no orders as to costs.

Key legal issues

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01

Jurisdiction - exhaustion and constitutional avoidance

Holding

The petition was properly before the ELC; the reliefs sought could only be granted by this court

Reasoning

The 6th Respondent argued the Petitioners should have gone to the NLC and filed a suit rather than a petition. The court held the exhaustion doctrine applies only where the alternative forum is accessible, affordable, timely and effective, and that where constitutional interpretation is pleaded, the exception applies. Since the reliefs sought could only issue from this court, jurisdiction was upheld.

p. 8
02

Status of the suit property

Holding

The suit land (Ore Basin) is public land set aside for use by the 2nd Respondent (Kenya Prisons Service)

Reasoning

Minutes of the Town Planning Committee of 1st December 1987 showed the land was acquired from Voi Development Company Limited on behalf of the Government; it was gazetted as Prison land by Legal Notice No. 139 of 1999 and an allotment letter issued in 2020. Neither has been revoked. Petitioners produced no proof of ancestral ownership or residence.

p. 9
03

Alleged violation of constitutional rights

Holding

No violation of the Petitioners' rights was established

Reasoning

The Petitioners alleged contraventions of Articles 19, 20, 22, 23, 25, 27, 28, 35, 48, 40, 47, 232 and 234 but failed to adduce evidential material demonstrating lawful ownership or occupancy, or that the Respondents' acquisition was unlawful. Constitutional violations must be proved by evidence, not speculation.

p. 9
04

Entitlement to reliefs

Holding

Petition dismissed; Petitioners failed to discharge the burden of proof on a balance of probabilities

Reasoning

Having failed to prove lawful occupation, ownership, or any rights violation, the Petitioners were not entitled to any of the reliefs sought, including the declaration of ancestral ownership, revocation of allocation, injunction, demolition orders or compensation.

p. 9

Legal principles established

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  • The exhaustion doctrine applies only where the alternative forum is accessible, affordable, timely and effective
  • A party pleading constitutional interpretation issues may be permitted to proceed before the High Court despite statutory alternative forums
  • Land lawfully held or used by a State organ, and unalienated government land, is public land under Article 62(1)

Court orders

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  1. 1.The Petition dated 28th February 2024 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 19, 20, 22, 23, 25, 27, 28, 35, 40, 47, 48, 62(1), 62(2), 63(2)(d)(i), 165(1), 232, 234
  • Limitation of Actions ActSection 41 (Cap. 22)
  • Evidence ActSection 60
  • Government Land ActSection 142
  • Legal Notice No. 139 of 1999reservation of Prison land
  • Gazette Notice Vol. CXV - No. 74 of 20th June 2014Notice of Intention to acquire land

Cases cited (14)

  • Throp v Holdswith
    (1886) CL.D 639
  • Mohammed Dagane v Hakar Abshir & 5 Others
    (2021) eKLR
  • Mbaki & Others v Macharia & Another
  • Nelson Kazungu Chai & 9 Others v Pwani University
    (2014) eKLR
  • Funzi Development Ltd and Others v County Council of Kwale
    (2014) eKLR
  • Trans-Nzoia Teachers Housing Cooperative Society Limited v Kenya Prisons Service & Another
    (Environment & Land Case 153 of 2016) [2023] KE ELC 20604 (KLR)
  • KKB v SCM & 5 Others
    (Constitutional Petition 014 of 2020) [2022] KEHC 289 KLR
  • Mombasa Technical Training Institute v Agnes Njeru Charo & 108 Others
    [2014] eKLR
  • Law Society of Kenya v Kinywa Head of Public Service & 5 Others; Migot Adholla & Another (Interested Parties)
    (Environment & Land Petition E029 of 2022) KE ELC 3962 (KLR)
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil Kenya Limited
    (1989) KLR 1
  • The Matter of the Interim Independent Electoral Commission
    Constitutional Application No. 2 of 2011
  • Cohens v. Virginia
    19 U.S. 264 (1821)
  • Dawda K. Jawara v Gambia
    ACmHPR 147/95-149/96-A
  • R. v Independent Electoral and Boundaries Commission (I.E.B.C.) & Others Ex Parte The National Super Alliance (NASA) Kenya
    [2017] eKLR
Jurisdiction invoked
Article 165(1) of the Constitution (Environment and Land Court jurisdiction); jurisdiction sustained against exhaustion and constitutional avoidance objections

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, "Mwadime & 109 others (Being Members of Ore Basin Small Scale Farmers Group) v State Department for Correctional Services Ministry of Interior and National Administration & 6 others (Environment & Land Petition E003 of 2024)  (Environment and Land) [2024] KEELC 6867 (KLR)", Case Analysis (2024). Petition dated 28th February 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6867/eng@2024-10-17

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