Republic v CECM Lands, Energy, Housing & Urban Development County Government of Marsabit & 3 others; Alelo alias Qalicha Arero (Ex parte Applicant) (Judicial Review Application E005 of 2025) [2026] KEELC 1370 (KLR)
The bottom line
#A Kenyan court confirmed that county governments cannot allocate unregistered community land they only hold in trust for communities.
What this practically means
#Executive summary
#Key legal issues
#Proper joinder of the 3rd and 4th Respondents (Attorney General)
The 3rd and 4th Respondents were mis-joined; they made no decision capable of being quashed, and the applicant was non-suited against them.
The decision complained of was made by the 1st Respondent, an officer of the 2nd Respondent (an autonomous county government under Article 176). The Attorney General is the principal legal advisor of the National Government under Article 156(4) and can only be joined where the complained-of omission was by a National Government officer. No such act existed, so the applicant had no cause of action against the 3rd and 4th Respondents.
Status of the suit property as unregistered community land
The suit property is unregistered community land held on trust by the County Government of Marsabit; the magistrate's finding to that effect stands as a judgment in rem.
The judgment in Moyale PMCELC No. 1 of 2020 found the property to be unregistered community land, and all parties before the court confirmed that position. However, the court held that the magistrate erred in directing the County Government to undertake survey, planning and registration, since a trustee county government cannot alienate or allocate unregistered community land; such processes must follow Sections 6 and 8 of the Community Land Act, 2016.
Whether the impugned decision was ultra vires and made without jurisdiction
The 1st Respondent's directive to re-plan, subdivide and re-allocate unregistered community land was made without jurisdiction and was illegal, unlawful, invalid and ultra vires.
The 1st Respondent, an officer of the 2nd Respondent, directed that the land be re-planned and subdivided into two equal parts for fresh re-allocation. A county government holding unregistered community land only as trustee cannot allocate or re-allocate it; any purported allocation was ipso facto an illegality. The decision therefore lacked jurisdiction and was void.
Violation of fair administrative action (Articles 47 and 50) and national values (Article 10)
The impugned decision was made without notice to, involvement of, or participation by the Ex-parte Applicant, contravening Articles 47 and 50 of the Constitution.
The decision was bound to affect the rights and interests of the Ex-parte Applicant, who occupied and possessed the land, yet was not given notice or heard. The court invoked the fair administrative action jurisprudence in Oloo Onyango, County Assembly of Kisumu, Shollei, Sonko and Gikenyi, holding that a decision made contrary to the rule of law is bad in law regardless of the outcome that would have been reached.
Legal principles established
#- Where community land has not been registered, it is held on trust by the County Government, and the County Government as trustee has no power, mandate or authority to alienate, allocate or re-allocate such land.
- A decision made without jurisdiction is illegal, unlawful, invalid and ultra vires; an illegal act remains void and cannot be sanitized.
Court orders
#- 1.The suit against the 3rd and 4th Respondents be and is hereby struck out
- 2.The Application be and is hereby allowed in terms of prayers 1 and 2 thereof
- 3.An order of judicial review in the nature of Certiorari and Prohibition granted as against the 1st and 2nd Respondents only
- 4.The costs of the Application awarded to the Ex-parte Applicant, borne by the 1st and 2nd Respondents
- 5.The suit property remains an unregistered community land and thus subject to the provisions of the Community Land Act, 2016
- Jurisdiction invoked
- Sections 8 and 9 of the Law Reform Act, Chapter 26 Laws of Kenya; and Order 53 Rules 3 and 4 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v CECM Lands, Energy, Housing & Urban Development County Government of Marsabit & 3 others; Alelo alias Qalicha Arero (Ex parte Applicant) (Judicial Review Application E005 of 2025) [2026] KEELC 1370 (KLR)", Case Analysis (2026). Judicial Review Notice of Motion dated 14.10.2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1370/eng@2026-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.