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)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction - exhaustion and constitutional avoidance
The petition was properly before the ELC; the reliefs sought could only be granted by this court
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.
Status of the suit property
The suit land (Ore Basin) is public land set aside for use by the 2nd Respondent (Kenya Prisons Service)
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 Neither has been revoked.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.
Alleged violation of constitutional rights
No violation of the Petitioners' rights was established
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.
Entitlement to reliefs
Petition dismissed; Petitioners failed to discharge the burden of proof on a balance of probabilities
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.
Legal principles established
#- 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
#- 1.The Petition dated 28th February 2024 is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Article 165(1) of the Constitution (Environment and Land Court jurisdiction); jurisdiction sustained against exhaustion and constitutional avoidance objections
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.