Active Environmental Team v National Land Commission & 2 others (Environment and Land Petition 27 of 2021) [2026] KEELC 2293 (KLR)
The bottom line
#The court struck out Tana River County's petition because its land dispute involved disputed facts that must be proven in an ordinary civil suit, not a constitutional petition.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the jurisdiction of this court has been properly invoked
- 2.Whether the 3rd respondent violated the terms of the 1976 lease
- 3.Whether the 3rd respondent applied for an extension of the lease
- 4.Whether the suit land should be declared as public land vested in the County Government of Tana River
- 5.Whether a new lease was issued by the 1st respondent to the 3rd respondent over the suit land in violation of a court order and if so whether such lease is thus null and void and ought to be cancelled and the land register be rectified
- 6.Whether a mandatory injunction order ought to issue compelling the 3rd respondent to surrender vacant possession of the suit land to the 2nd respondent
- 7.Who ought to bear the costs of the cross-petition?
Key legal issues
#Whether the court's jurisdiction was properly invoked by the cross-petition
No. The answers to the questions raised involved no interpretation of the Constitution and depended on disputed facts requiring cross-examination, documentary verification and possibly a site visit; the proper forum was an ordinary civil suit under the Civil Procedure Act.
The court observed that none of the framed issues involved constitutional interpretation. The allegations of official misconduct were insufficiently pleaded with specific roles defined to allow rebuttal by pleadings and evidence. Orders against a lease document only suspected to have been issued would be speculative. The dispute concerned lease compliance and renewal under the Land Act and the Land (Extension and Renewal of Leases) Rules, best tried as an ordinary suit with pleadings and viva voce evidence.
Legal principles established
#- Petitions should only be entertained where facts are clear cut and constitutional issues can be distilled from the pleadings; ordinary disputes requiring trial of disputed facts belong in an ordinary civil suit
- Where a specific procedure is prescribed by an Act of Parliament for the redress of a grievance, it should be strictly followed
- Improper transmission of ordinary disputes into constitutional petitions must be guarded against; the existence of an alternative remedy does not oust jurisdiction but must inform the choice of forum
Court orders
#- 1.The amended cross-petition dated 10th March 2025 is summarily struck out for failure to properly invoke the jurisdiction of the court
- 2.Leave is granted to the cross-petitioner to institute proceedings against the respondents to the cross-petition and any other relevant parties by way of ordinary plaint within 60 days from the date of the order
- 3.Each party shall bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Constitution of Kenya, 2010 - jurisdiction of the Environment and Land Court over land and environment disputes (the court found it had not been properly invoked by the cross-petition)
Relief refused
#All reliefs sought in the cross-petition, including declarations of breach of lease, declaration of public land, nullification of any new lease, rectification of register, inhibition, and mandatory injunction for vacant possession
The cross-petition did not properly invoke the court's jurisdiction; the disputed factual questions could not be resolved in a constitutional petition and required an ordinary civil suit
Costs
Each party shall bear its own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
As the jurisdiction of this court has not been properly invoked by this cross-petition, the amended cross-petition dated 10th March 2025 is hereby summarily struck out for only that reason.
leave is granted to the cross-petitioner herein to institute proceedings against the respondents to the cross petition and any other relevant parties by way of ordinary plaint within 60 days from the date of this order.
in view of the fact that the matter before court is one of great public interest, this court orders that each party shall bear its own costs.
the filing of the petition did not absolve the cross-petitioner from instituting proceedings through the right forum.
Also, orders against a lease document which is only suspected to have been issued and not brought before the court, would only be speculative.
Notably, this is an issue that can not be tried by way of affidavit evidence since it is disputed and cross-examination of witnesses and verification of documentary evidence and possibly site visit verification would become necessary.
Issues in the judgment
#The cross-petitioner is described inconsistently - submissions are headed 'Submissions Of the Cross-Appellant' while throughout the document the party is called the cross-petitioner
The cross-petition retains respondent descriptions for the parties, including the cross-petitioner itself, despite amendment
The 3rd respondent referred the court to an affidavit said to be on record, but the court could not locate it
The record itself is dated a day after the delivery date recited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Active Environmental Team v National Land Commission & 2 others (Environment and Land Petition 27 of 2021) [2026] KEELC 2293 (KLR)", Case Analysis (2026). MLDELCPETE027/21. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2293/eng@2026-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.