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Supreme CourtPartially AllowedPetition 3 of 2015

Narok County Government v Ntutu & 2 others

Supreme Court of Kenya
11 December 2018
David Kenani MaragaD. K. MaragaPhilomena Mbete MwiluP. M. MwiluMohammed Khadhar IbrahimM. K. IbrahimJackton Boma OjwangJ. B. OjwangSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguN. S. NjokiIsaac LenaolaI. Lenaola
12,313 words in judgment
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The bottom line

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Court orders fresh trial on Maasai Mara land claim: no consent can validate unconstitutional land titles.

What this practically means

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The Narok County Government challenged a consent judgment that gave Joseph Ole Ntutu title to land in the Maasai Mara National Reserve. The High Court had set aside that consent because the title was allegedly obtained illegally. The Court of Appeal reversed that decision. The Supreme Court agreed with the High Court: parties cannot agree to something illegal. However, the Supreme Court cannot decide facts about the land title; that requires a trial. So it sent the case back to the Environment and Land Court for a full hearing.

Executive summary

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The Supreme Court of Kenya heard an appeal by the Narok County Government against the Court of Appeal's decision which had reinstated a consent judgment in favour of Joseph Ole Ntutu regarding title to land within the Maasai Mara National Reserve. The High Court had earlier set aside the consent judgment on grounds that the title was allegedly acquired unconstitutionally and illegally, but the Court of Appeal reversed that decision, holding that the issues of unconstitutionality could not be raised on review. The Supreme Court first addressed jurisdiction under Article 163(4)(a), finding that while the principles for setting aside a consent judgment did not raise constitutional questions, the underlying issue of the constitutionality and legality of the title to trust land did involve constitutional interpretation and application, thus warranting the Court's jurisdiction. The Court also invoked its inherent jurisdiction to consider the matter in the interest of justice. On the merits, the Court held that parties cannot consent to an illegality and that a consent order offending the Constitution cannot stand. However, the Court declined to cancel the title itself, as that would require factual determination by a trial court. The Court set aside the Court of Appeal judgment, reinstated the High Court ruling, and remitted the matter to the Environment and Land Court for hearing on a priority basis to determine the constitutionality and legality of the title. 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 this court has jurisdiction under article 163(4)(a) of the Constitution to hear and determine this Appeal;
  2. 2.Whether a consent order that offends the Constitution and statutory provisions can be upheld by courts;
  3. 3.Whether this court can and should cancel the title to the Suit Land, subject of this dispute;
  4. 4.The appropriate remedies to issue;
  5. 5.Costs.

Key legal issues

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01

Whether the Supreme Court has jurisdiction under Article 163(4)(a) to hear an appeal concerning a consent judgment alleged to offend the Constitution.

Holding

The Court has jurisdiction because the appeal raises a serious constitutional issue regarding the legality of title to trust land, which was a live issue in the courts below and involves constitutional interpretation and application.

Reasoning

The Court applied the trajectory test from Gatirau Peter Munya v Dickson Mwenda Kithinji, finding that the reasoning and conclusions of the courts below took a trajectory of constitutional interpretation. The allegations of unconstitutionality and illegality of the title to the suit land, which formed part of the Maasai Mara National Reserve held in trust, raised a serious policy issue that warranted the Court's intervention. The Court also invoked its inherent jurisdiction to consider the matter in the interest of justice and to protect the Constitution.

p. 18
02

Whether a consent order that offends the Constitution and statutory provisions can be upheld by courts.

Holding

A consent order that offends the Constitution and statutory provisions cannot be upheld; parties cannot consent to an illegality.

Reasoning

The Court agreed with the High Court judge that allegations of unconstitutionality and illegality of a consent judgment are a serious policy issue. It held that a consent that upsets the provisions of the Constitution defeats the principle of legality and cannot stand. The Court emphasized that public policy, safeguarded by national values and principles of governance under Article 10 of the Constitution, requires that such issues be determined conclusively.

p. 24
03

Whether the Supreme Court can and should cancel the title to the suit land.

Holding

The Supreme Court cannot cancel the title because that requires factual determination by a trial court with competent jurisdiction, which has not yet occurred.

Reasoning

The Court found that the cancellation of the title calls for determination of facts by a trial court, as no such determination had been made by the High Court or Court of Appeal. The Environment and Land Court is the court with requisite jurisdiction to make that factual finding. The Supreme Court's appellate jurisdiction under Article 163(4)(a) does not extend to making first-instance factual determinations.

p. 25

Legal principles established

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  • A consent order that violates the Constitution or law is void; parties cannot consent to an illegality.
  • The Supreme Court has inherent power to act in the interest of justice, even without specific rules.
  • The Supreme Court cannot make factual findings, like canceling a land title; that belongs to a trial court.
  • The Supreme Court's jurisdiction under Article 163(4)(a) can be based on the 'trajectory' of constitutional interpretation in lower courts.
  • Public policy and national values require courts to set aside illegal consents, especially on trust land.

Court orders

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  1. 1.The judgment and orders of the Court of Appeal (R.N Nambuye, D.K Musinga and J. Mohammed J.J.A) dated April 24, 2015 in Nairobi Civil Appeal No. 109 of 2014 is set aside.
  2. 2.The ruling and orders of the High Court dated March 19, 2014 in HCCC 1565 of 2000 are hereby reinstated save to the extent expressed in (c) below.
  3. 3.An order do hereby issue that this matter be remitted back to the Environment and Land Court for hearing, pursuant to the ruling in HCCC No.1565 of 2000 dated March 19, 2014, on a priority basis.
  4. 4.Each party shall bear its own costs.

The bench

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

David Kenani Maraga
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
N. S. NjokiSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No. 109 of 2014
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Cancellation of Title Number Narok/Cis-Mara/Talek/155

The cancellation of the title calls for determination of facts by a trial court. Such a determination as earlier demonstrated by an analysis of the High Court and the Court of Appeal decision does not exist.

p. 25

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.

We are in agreement with the learned judge of the High Court on her finding as it is trite law that, parties cannot consent to an illegality.
p. 24 Consent judgments and illegality
The petition of appeal dated May 12, 2015 is hereby allowed in the following specific terms: (a) The judgment and orders of the Court of Appeal (R.N Nambuye, D.K Musinga and J. Mohammed J.J.A) dated April 24, 2015 in Nairobi Civil Appeal No. 109 of 2014 is set aside. (b) The ruling and orders of the High Court dated March 19, 2014 in HCCC 1565 of 2000 are hereby reinstated save to the extent expressed in (c) below. (c) An order do hereby issue that this matter be remitted back to the Environment and Land Court for hearing, pursuant to the ruling in HCCC No.1565 of 2000 dated March 19, 2014, on a priority basis.
p. 26 Final orders
Each party shall bear its own costs.
p. 25 Costs order
The conclusion drawn from the above citations is that this court, indeed any other appellate court, even where there are no specific provisions to do an act, has inherent and/or residual powers to act in a fair or equitable manner in the interest of justice and/or to ensure the observance of the due process of the law.
p. 23 Inherent jurisdiction of appellate courts
Our finding on this issue is therefore that, this court will not and cannot usurp the jurisdiction of other courts to determine matters which rightly ought to be determined by them at the first instance and we shall shortly make the necessary orders in that regard.
p. 25 Limits of Supreme Court appellate jurisdiction

Key timeline

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2014-03-19
High Court sets aside consent judgment, finding title to Maasai Mara land allegedly acquired illegally.
2015-04-24
Court of Appeal reinstates consent judgment, reversing High Court.
Subsequent to 2015-04-24
Supreme Court sets aside Court of Appeal, reinstates High Court ruling, remits case to Environment and Land Court for trial.

Practical implications

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For lawyers

Consent judgments and constitutional illegality

When challenging a consent judgment on constitutional grounds, ensure the issue of illegality was raised in lower courts. The Supreme Court will not cancel titles itself; it will send the case back for factual determination. Use the trajectory test to establish Supreme Court jurisdiction under Article 163(4)(a) if the case involves constitutional interpretation.

For businesses

Land transactions on public or trust land

If you hold title to land that is part of a public reserve or trust land, be aware that a consent judgment settling a dispute can be challenged if the title was obtained unconstitutionally. The Supreme Court has made it clear that parties cannot agree to validate an illegal transaction. Ensure your land title is free from constitutional defects.

For individuals

Rights for landowners and community members

If you own land in a protected area like Maasai Mara, a court order or agreement cannot override the Constitution. The Supreme Court has affirmed that illegal land titles cannot be saved by a consent. Your land rights must be based on lawful acquisition. This case may affect many similar disputes across Kenya.

Frequently asked questions

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Can a consent judgment in Kenya be set aside if it was illegal?+

Yes. The Supreme Court said parties cannot consent to an illegality. If a consent judgment offends the Constitution or law, courts can set it aside. This is important for land disputes involving public land like trust land.

What is the trajectory test for Supreme Court jurisdiction in Kenya?+

It is a test from the Munya case. The Supreme Court looks at whether the lower courts' reasoning and conclusions involved constitutional interpretation or application. If yes, the Supreme Court has jurisdiction under Article 163(4)(a).

Who decides land title disputes in Kenya after Supreme Court sends case back?+

The Environment and Land Court (ELC) handles factual questions about land titles. The Supreme Court said it cannot decide facts; it sent the case to the ELC for a full hearing on whether the title was legally acquired.

Does the Maasai Mara land dispute affect other trust lands in Kenya?+

Yes. The Supreme Court's ruling applies to all trust land disputes. It reinforces that titles to public or trust land must comply with the Constitution. Parties cannot use consent judgments to bypass constitutional protections.

Later judgments citing this (13)

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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, "Narok County Government v Ntutu & 2 others", Case Analysis (2018). Petition 3 of 2015. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2018/11/eng@2018-12-11

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