Kerongo & another v Kisii County Government & 6 others (Environment and Land Petition E001 of 2023) [2025] KEELC 6833 (KLR)
The bottom line
#A Kenyan court ruled a county governor cannot hand over public land directly, but refused to demolish a completed substation, ordering regularisation instead.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit land was set aside for Jogoo Market
Not proved; the register shows the land reserved for 'Nyakemini Cattle Tripping' (cattle dip) and Minute 105/86 (2) does not mention the suit land or any change of use
The annexed minute concerned the slow pace of improvement of the new Jogoo Market and directed the Town Engineer, but made no mention of the suit land, its location, or any change of use from cattle dipping to market. There was no evidence of any change-of-use document, no evidence the market was to be on the suit land, and no evidence the land was ever used as a market. The land lay idle and was allegedly used as a dumpsite.
The category of the suit land
It is public land under Article 62(1)(n) of the Constitution as read with Section 13(2) of the Community Land Act
The land, once trust land used communally as a cattle dip for a public purpose, is deemed public land under Section 13(2) of the Community Land Act, an Act enacted after the effective date of the Constitution. It vests in the county government in trust for residents and is administered by the National Land Commission.
Whether the allocation procedure was lawful
The allocation by the County Government directly to the 4th respondent was unprocedural; Sections 15-18 of the Land Act, not Section 12, govern allocation to a public entity, and the NLC was improperly sidestepped
Section 12 concerns allocation of public land to private entities; the 4th respondent is a State corporation/public body, so Sections 15-18 (reservation and vesting in a management body with NLC approval of a development plan) apply. The County Government purported to approve both allocation and project without reference to the NLC, which was erroneous, and the development approval also bypassed the NLC under Section 17(1).
Compliance with EMCA on EIA
The project proceeded without a proper EIA study report and without an NEMA licence, which was erroneous; the licence annexed (JO-32) was for a different project and parcel
Electrical substations and major changes in land use are listed in the Second Schedule to EMCA, requiring a full EIA study report, publication under Section 59, and a licence under Section 63. NEMA asked questions that were never convincingly answered and never issued a licence. The EIA report was of poor quality, with cut-and-paste errors and no assessment of impacts on the river, riparian area and springs. The licence exhibited was issued in 2016 for a different parcel of land.
Remedy: eviction and demolition
Refused as disproportionate; instead the court directed regularisation through the NLC and EIA compliance
The substation is complete, operational for about four years, serves over 130,000 people and cost colossal public funds. The petitioners did not challenge the project while it was being undertaken, and could have sought information under Article 35. Following Kochale vs Lake Turkana Wind Power, the court declined to demolish and instead gave timelines for compliance with the law.
Legal principles established
#- Public land reserved for a public purpose may be placed under a public corporation as a management body under Sections 15-18 of the Land Act, and such vesting creates no interest in the land, which remains public land
- County Governors have no power to unilaterally allocate public land; allocation to a public entity must go through the National Land Commission under Sections 15-18 of the Land Act
- A project proponent who has breached statutory procedure cannot claim legitimate expectation to have an allocation regularised automatically
- It may be disproportionate to order demolition of a completed public project serving the public where the challenger did not act promptly; the court may fashion appropriate remedies
Court orders
#- 1.Declared that the petitioners failed to demonstrate that Central Kitutu/Mwamosioma/698 was set apart for development of Jogoo Market; the land is set aside for 'cattle tripping' or a cattle dip
- 2.Declared that the land parcel Central Kitutu/Mwamosioma/698 is public land
- 3.Declared that the petitioners demonstrated that the process of allocation of the suit land by the 1st respondent to the 4th respondent was unprocedural
- 4.Held that no case was made against the 2nd respondent (Kisii County Assembly)
- 5.Dismissed the 4th respondent's cross-petition for failure to demonstrate violations of Articles 60, 69(1)(h), 174, 201, 227 and the Fourth Schedule
- 6.Directed the County Government of Kisii, within 30 days, to take the requisite steps under the Land Act for the National Land Commission to consider allocation of the suit land to the 4th respondent, the process to proceed to its logical conclusion, with the petitioners kept apprised of progress
- 7.Directed the 4th respondent to liaise with NEMA for assessment of the environmental impacts of the project, comply with NEMA directives and the requirements of EMCA on issuance of an EIA licence
- 8.Awarded nominal costs of Kshs. 30,000 payable jointly and/or severally by the 1st and 4th respondents to the petitioners; no other orders as to costs on either petition or cross-petition
- Jurisdiction invoked
- Original constitutional petition jurisdiction under Articles 22 and 258 of the Constitution (as invoked by the parties); Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kerongo & another v Kisii County Government & 6 others (Environment and Land Petition E001 of 2023) [2025] KEELC 6833 (KLR)", Case Analysis (2025). Not stated in judgment (petition filed 23 March 2023, amended 26 July 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6833/eng@2025-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.