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ELCStruck OutMLDELCPETE027/21

Active Environmental Team v National Land Commission & 2 others (Environment and Land Petition 27 of 2021) [2026] KEELC 2293 (KLR)

Environment and Land Court
23 April 2026
5,534 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The main petition having been dismissed on 19th December 2025 for non-compliance with orders to amend, the court dealt only with a cross-petition dated 20th April 2023 filed by the County Government of Tana River (originally 2nd respondent) against the National Land Commission (1st respondent) and Giritu Ranching (DA) Company Limited (3rd respondent). The cross-petitioner, through its Governor, alleged that the 3rd respondent was granted a 45-year lease over LR Number 13598 (CR Number 21903), some 98,209 acres, in 1976, failed to comply with special conditions including husbandry, water provision, fencing, buildings and stocking, and allowed the land to lie idle until the lease lapsed on 1st April 2021, whereupon it became public land vested in the county. It further alleged that county officials and the National Land Commission unlawfully processed an extension and issuance of a new lease in violation of conservatory orders issued on 30th November 2021. The 3rd respondent relied on a replying affidavit asserting compliance, county approvals, public participation and payment of rates; the National Land Commission filed no response. The court framed seven issues but disposed of the cross-petition solely on jurisdiction. It held that none of the issues involved constitutional interpretation, that disputed factual questions of lease compliance and alleged renewal could not be tried on affidavit evidence, and that the proper forum was an ordinary civil suit under the Civil Procedure Act. The cross-petition was struck out, with leave to file an ordinary plaint within 60 days, and each party was ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the jurisdiction of this court has been properly invoked
  2. 2.Whether the 3rd respondent violated the terms of the 1976 lease
  3. 3.Whether the 3rd respondent applied for an extension of the lease
  4. 4.Whether the suit land should be declared as public land vested in the County Government of Tana River
  5. 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. 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. 7.Who ought to bear the costs of the cross-petition?

Key legal issues

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01

Whether the court's jurisdiction was properly invoked by the cross-petition

Holding

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.

Reasoning

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.

p. 20

Legal principles established

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  • 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

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  1. 1.The amended cross-petition dated 10th March 2025 is summarily struck out for failure to properly invoke the jurisdiction of the court
  2. 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. 3.Each party shall bear its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 21

Costs

Each party shall bear its own costs

Quotable passages

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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.
p. 21Final orders - striking out
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.
p. 21Final orders - leave to file ordinary plaint
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.
p. 21Final orders - costs
the filing of the petition did not absolve the cross-petitioner from instituting proceedings through the right forum.
p. 21Choice of 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.
p. 19Speculative orders
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.
p. 19Disputed facts and affidavit evidence

Issues in the judgment

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minor

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

minor

The cross-petition retains respondent descriptions for the parties, including the cross-petitioner itself, despite amendment

minor

The 3rd respondent referred the court to an affidavit said to be on record, but the court could not locate it

minor

The record itself is dated a day after the delivery date recited in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.