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ELCPartially AllowedPetition No E105 of 2021 (originally Milimani High Court Constitutional and Human Rights Division Petition No E105 of 2021)· [2025] KEELC 3053 (KLR)

Lorunyei & another v Attorney General & 3 others (Environment and Land Petition 1 of 2023) [2025] KEELC 3053 (KLR)

Environment and Land Court
21 March 2025
15,585 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~62 min to read original · ~4 min brief

The bottom line

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Kenya's land court ruled that the Turkana community's ancestral land in Samburu was unlawfully taken for KDF use without consultation or compensation, ordering payment within 18 months.

What this practically means

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Executive summary

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The petitioners, the MCA for Nachola Ward and the Chairperson of Kawap Land Community Mobilisation Group, sued on behalf of the Turkana community in Northern Samburu County, challenging Gazette Notice No 2080 of February 4, 2021 by which the NLC allocated land in Kawap and Suguta Valley to the Kenya Defence Forces in exchange for the KDF's encroached training land at Lpartuk and Lkuroto in Maralal, which reverted to the Samburu community. The petitioners claimed the suit land was Turkana ancestral community land under article 63 of the Constitution, taken without consultation, valuation or compensation, in violation of articles 10, 27, 36, 40, 47 and 56. They sought declarations, certiorari, prohibition, cancellation of title IR 212367 and conservatory orders. The respondents maintained the land was unadjudicated public land under article 62(1)(d), lawfully exchanged under section 12(1)(f) of the Land Act, and challenged the court's jurisdiction. The court upheld its jurisdiction, holding the section 30 Land Adjudication Act objection had been conclusively determined by AC Mrima J and was not appealed. On the merits, the court found the suit land to be unregistered community land held in trust by the County Government of Samburu, and held the exchange amounted to compulsory acquisition without consultation, valuation, notices or compensation, in violation of article 40, the Community Land Act and the Land Act, rendering the gazette notice null and void. Given KDF's occupation, the court declined to order repossession or cancellation of the unproven title, instead declaring the process unlawful, quashing the gazette notice, directing NLC to conduct compulsory acquisition with compensation paid within eighteen months, constituting a consultative team, ordering survey and registration of the remaining Turkana land, and affirmative action measures. Costs were awarded to the petitioners jointly against the respondents.

Key legal issues

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01

Status of the suit land: community land or public land

Holding

The suit land is unregistered community land of the Turkana community under article 63(2)(d)(i) and (ii), held in trust by the County Government of Samburu under article 63(3)

Reasoning

The petitioners' evidence, including pre-colonial reports and testimony of ancestral occupation, grazing use and burial of ancestors, aligned with the constitutional and statutory definitions of community land. The 2014 declaration of a Kawap Adjudication Section recognised the community's legitimate rights. The respondents led no evidence of how the land became public land, and failure to complete adjudication does not convert community land into public land.

p. 28
02

Whether due process was followed in allocating the suit land to KDF

Holding

No due process was followed; the exchange was effected without consultation, valuation, notices or compensation, in blatant violation of article 40, the Community Land Act and the Land Act, rendering Gazette Notice No 2080 of 2021 null and void

Reasoning

The purported exchange under section 12(1)(f) of the Land Act required parcels of equal value, planning, surveying and servicing, none of which was proved. NLC failed to issue the notices required by section 14 of the Land Act, including to marginalised communities in the vicinity. The Turkana community was neither consulted nor compensated, so the transaction amounted to unlawful compulsory acquisition of community land.

p. 31
03

Whether the petitioners' rights were violated, including discrimination and marginalisation

Holding

The Turkana community's rights under articles 10, 27, 40, 47 and 56 were violated; the exchange conferred the benefit of returned land on the Samburu while depriving the marginalised Turkana of their land

Reasoning

The Turkana are a relatively small population in Samburu County unable to fully participate in the integrated social and economic life of Kenya, fitting the constitutional definition of a marginalised community. The decision to return KDF land at Maralal to the Samburu while taking Turkana land in Kawap without consultation or compensation was differential treatment lacking reasonable distinction, amounting to discrimination and marginalisation of an already marginalised community.

p. 8
04

Jurisdiction of the ELC and exhaustion of remedies

Holding

The ELC has jurisdiction over constitutional claims concerning community land and the right to property; section 30 of the Land Adjudication Act does not bar a Bill of Rights petition and the exhaustion argument failed

Reasoning

By virtue of articles 23(1), 162(2) and 165(5)(b) and section 13 of the ELC Act, the ELC is mandated to determine disputes relating to community land and compulsory acquisition and applications for redress of violations of article 40. The section 30 objection was conclusively determined by AC Mrima J on March 10, 2023 and was not appealed, so the court would not revisit it. The 4th respondent did not specify which alternative remedies should have been exhausted.

p. 24

Legal principles established

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  • Unregistered community land does not automatically become public land; it is held in trust by the county government under article 63(3) of the Constitution and section 10(3) of the Community Land Act
  • An exchange of community land by a county government without consultation, valuation or compensation amounts to compulsory acquisition in contravention of article 40 of the Constitution
  • The ELC has jurisdiction to hear applications for redress of violation of the right to property in the form of land under article 40

Court orders

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  1. 1.A declaration that the process of identification, setting aside, and annexation of Turkana community ancestral land in Suguta Valley and Kawap areas by the NLC on behalf of KDF, in conjunction with the Cabinet Secretary, Ministry of Defence and the County Government of Samburu, was unlawful and void for violating articles 10, 27, 40, 47 and 56 of the Constitution
  2. 2.An order of certiorari quashing Gazette Notice No 2080 of February 4, 2021
  3. 3.NLC directed to initiate forthwith and conclude the compulsory acquisition of the suit land for purposes of prompt payment of full and just compensation to members of the Turkana community, to be paid in full within eighteen months of the date of the judgment
  4. 4.A consultative team comprising the petitioners, three other Turkana community leaders and five representatives nominated by the 1st, 3rd and 4th respondents to be constituted within 14 days to oversee and facilitate participation of the Turkana community in determination and payment of compensation
  5. 5.The consultative team to ascertain and compile a full list of displaced and directly affected members of the Turkana community
  6. 6.The consultative team to ensure an inclusive, meaningful (non-tokenistic) participation process taking into account women (including widows), children, the elderly, youth and persons with disability
  7. 7.The consultative team to liaise with NEMA to ensure sustainable utilisation, management and conservation of the natural environment in Suguta Valley and Kawap in compliance with article 69 of the Constitution
  8. 8.The 3rd respondent in conjunction with the Cabinet Secretary, Ministry of Lands and Settlement to undertake survey, adjudication and registration of the remainder of the Turkana Community land in Kawap
  9. 9.The respondents in consultation with other State organs to design and implement affirmative action programmes and formulate policies to redress land injustices and disadvantages suffered by the Turkana community in Kawap
  10. 10.The 3rd respondent to take measures to include representatives of the Turkana community in decision making in Samburu County
  11. 11.The petitioners awarded the costs of the petition, to be borne jointly by the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 10, 19, 20, 21, 22, 23, 24, 25, 27, 35, 36, 40, 43, 44, 47, 48, 52, 56, 60, 61, 62, 63, 66, 67, 69, 73, 75, 165, 232, 241, 248, 249, 258, 259, 260
  • National Land Commission ActSections 3, 5(2)
  • Land ActSections 2, 4, 5(4), 7, 9, 12, 14, 22(2)
  • Community Land ActSections 2, 5, 6, 10(3), 22(1)
  • Land (Allocation of Public Land) Regulations, 2017Regulation 3(1)(f)
  • Land Adjudication ActSections 26, 30
  • Physical and Land Use Planning ActSection 78
  • Fair Administrative Action ActSection 9(2)
  • Environment and Land Court ActSections 4, 13
  • Civil Procedure ActSection 27(1)
  • United Nations Declaration on the Rights of Indigenous PeopleArticles 8(2), 10, 26(1) and (2), 30(1)
  • Universal Declaration of Human Rights
  • International Covenant on Civil and Political Rights
  • International Covenant on Economic Social and Cultural Rights
  • Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
  • United Nations Convention on the Rights of the Child
  • African Charter on Human and Peoples' Rights
  • African Charter on the Rights and Welfare of the Child
  • Protocol to the African Charter on the Rights of Women in Africa (Maputo Protocol)
  • National Land Policy Sessional Paper No 3 of 2009

Cases cited (22)

  • African Commission of Human Rights and Peoples' Rights v Republic of Kenya (2017)
    (2017)
  • County Government of Taita Taveta v Isangaiwich Group Ranch & 3 others [2021] eKLR
    [2021] eKLR
  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR
    [2014] eKLR
  • Republic v County Government of Kiambu ex parte Robert Gakuru & another [2016] eKLR
    [2016] eKLR
  • IEBC v NASA Kenya & 6 others [2017] eKLR
    [2017] eKLR
  • Nelson Andayi Havi v LSK & 2 others [2018] eKLR
    [2018] eKLR
  • Orix Oil (Kenya) Limited v Paul Kabeu & 2 others [2014] eKLR
    [2014] eKLR
  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR
    [2014] eKLR
  • Minister of Health & another v New Clicks South Africa (Pty) Ltd & others (CCT59/2004) [2005] ZACC 14; 2006 (2) SA 311 (CC); 2006(1) BCLR 1 (CC) (30 September 2005)
    [2005] ZACC 14; 2006 (2) SA 311 (CC)
  • Okiiya Omtatah Okoiti v County Government of Kiambu [2018] eKLR
    [2018] eKLR
  • Republic v Karissa Chengo & 2 others
  • Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Limited (1989) KLR 1
    (1989) KLR 1
  • Moses Mwicigi and 14 others v IEBC and 5 others [2016] eKLR
    [2016] eKLR
  • NGO Coordination Board v EG & 5 others [2019] eKLR
    [2019] eKLR
  • Speaker of the National Assembly v Karume (2008) 1 KLR EP 425
    (2008) 1 KLR EP 425
  • Krystalline Salt Limited v Kenya Revenue Authority [2019] eKLR
    [2019] eKLR
  • Republic v Council of Legal Education ex parte Desmond Tutu Owuoth [2019] eKLR
    [2019] eKLR
  • Ashwander v Tennesse Valley Authority (1936)
    (1936)
  • KKB v SCM & 5 others [2022 KEHC] 289
    [2022 KEHC] 289
  • Michael Weare & another v Jooel Sibusiso Naebel N.O. & 4 others, High Court at Natal Case No 8337/06
    Case No 8337/06
  • Manong & Associates (Pty) Ltd v City Manager, City of Cape Town & another [2009] JOL 22914(c)
    [2009] JOL 22914(c)
  • Attorney General v Halal Meat Products Limited (2016) eKLR
    (2016) eKLR
Jurisdiction invoked
Articles 23(1), 162(2), 165(5)(b) of the Constitution and section 13 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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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lorunyei & another v Attorney General & 3 others (Environment and Land Petition 1 of 2023) [2025] KEELC 3053 (KLR)", Case Analysis (2025). Petition No E105 of 2021 (originally Milimani High Court Constitutional and Human Rights Division Petition No E105 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3053/eng@2025-03-21

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