Conversion of trust land occupied by the Ogiek/Ndorobo Community of Mt Elgon into Chepkitale National Reserve was unlawful and of no legal effect
Kitelo & 2 others v County Government of Bungoma & another (Environment & Land Case 10 of 2020) [2022] KEELC 4901 (KLR) (26 September 2022) (Judgment)
Neutral citation: [2022] KEELC 4901 (KLR)

Kitelo & 2 others v County Government of Bungoma & another
Environment & Land Case 10 of 2020
Environment And Land Court at Bungoma
BN Olao, J
September 26, 2022
Reported by Kakai Toili
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Summary Significance: The plaintiffs filed the instant suit challenging the conversion of trust land which was occupied the Ogiek/Ndorobo Community of Mt Elgon (the Community) into a national reserve without following the procedure set out in law. The court held among others that the remedies sought by the plaintiffs fell within the jurisdiction of the court. The court further held that there was no provision in the National Land Commission Act 2012 that ousted its jurisdiction to determine the issues raised. The court also held that in so far as what was being proposed was the establishment of protected areas, buffer zones and wilderness areas, the court held that an environmental impact assessment report (EIA) was necessary. The court finally declared that the conversion of the trust land into Chepkitale National Reserve was unlawful and of no legal effect.
Land Law - conversion of land - conversion of trust land into a national reserve - what were the factors to consider in determining whether the law was followed in the conversion of trust land into a national reserve - Constitution of Kenya (repealed) sections 114(2), 115(1) and (2), and 117(1), (3) and (4).
Constitutional Law - locus standi - factors to consider in determining whether a party had locus standi to institute a suit - what were the factors to consider in determining whether a party had locus standi to institute a suit on behalf of a community - Civil Procedure Rules, 2010, Order 1 rule 8.
Jurisdiction - jurisdiction of the Environment and Land Court - jurisdiction to determine a dispute on the conversion of trust land into a national reserve - whether the Environment and Land Court had jurisdiction to determine a dispute on the conversion of trust land into a national reserve where the conversion was prior to the promulgation of the Constitution of Kenya, 2010 - National Land Commission Act, 2012, section 5; Environment and Land Court Act, 2011, section 13(2); Land Act, 2012, section 150.
Environmental Law - environmental impact assessment reports - circumstances in which environmental impact assessment report is required - under what circumstances was an environmental impact assessment report required in the conversion of trust land into a national reserve - Environmental Management and Co-ordination Act, 1999, Second Schedule, paragraphs 2(d) and 13(a).
Words and Phrases - locus standi - definition of locus standi - the right to bring an action or to be heard in a given forum - Black’s Law Dictionary.

Brief facts:
The plaintiffs moved to the court and described themselves as suing as representatives of the Ogiek/Ndorobo Community of Mt Elgon (the Community). They impleaded the County Government of Bungoma and the Attorney General (the 1st and 2nd defendants respectively) seeking various remedies with regard to the conversion of trust land which they occupied and which they alleged was converted into Chepkitale National Reserve without following the procedure set out in the law.
It was the plaintiffs’ case that vide a Gazette Notice dated June 6, 2000, the 2nd defendant on the instructions of the 1st defendant through Legal Notice No. 88 of 2000 converted their ancestral land to a national wildlife reserve to wit Cepkitale National Reserve without having it set apart as provided in section 117 of the repealed Constitution as read with section 13(1) of the Trust Land Act.
Accordingly, the plaintiffs argued that the order issued on June 6, 2000 was of no legal effect. The plaintiffs also claimed that there was failure on the part of the defendants to comply with the Environmental Management and Co-ordination Act since no report was submitted to the National Environment Management Authority. The plaintiffs therefore sought among others a declaration that the conversion was unlawful and without legal effect.

Issues:
  1. What were the factors to consider in determining whether the law was followed in the conversion of trust land into a national reserve?
  2. Whether the Environment and Land Court had jurisdiction to determine a dispute on the conversion of trust land into a national reserve where the conversion was prior to the promulgation of the Constitution of Kenya, 2010.
  3. What were the factors to consider in determining whether a party had locus standi to institute a suit on behalf of a community?
  4. Under what circumstances was an environmental impact assessment report required in the conversion of trust land into a national reserve?
Relevant provisions of the law
Civil Procedure Rules, 2010
Order 1 - Parties to Suits
Rule 8
One person may sue or defend on behalf of all in same interest [Order 1, rule 8.]
(1) Where numerous persons have the same interest in any proceedings, the proceedings may be commenced, and unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.
(2) The parties shall in such case give notice of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct.

Held:
  1. Jurisdiction was everything and without it, a court had no power to make one more step. A court downed its tools in respect of any matter before it the moment it held the opinion that it was without jurisdiction. Jurisdiction should be acquired before any judgment was given.
  2. The term locus standi meant a right to appear in court and, conversely, to say that a person had no locus standi meant that he had no right to appear or be heard in such and such a proceeding. Other than merely pleading that the plaintiffs were deficient of the locus to bring the same, the 1st defendant did not offer any evidence in support of that allegation. On the other hand, it was clear from the testimonies of PW1 and PW2 that they were members of the Community and were conversant with the facts of the case.
  3. By PW1 and PW2’s authority dated December 15, 2008 and filed originally at the High Court Kitale on December 17, 2008 where the suit originated, the 2nd, 3rd and 4th plaintiffs authorized the 1st plaintiff to swear affidavits and other documents on their behalf. The plaintiff’s locus standi in the instant proceedings was not in doubt.
  4. The suit was first filed at the High Court in Kitale on December 17, 2008, some 4 years before the commencement of the National Land Commission Act on May 2, 2012. The declaratory orders sought by the plaintiffs in the suit did not fall within the functions of the National Land Commission as set out in section 5 of the Act. The remedies sought by the plaintiffs fell within the jurisdiction of the court as set out in section 13(2) of the Environment and Land Court Act as well as section 150 of the Land Act. There was no provision in the National Land Commission Act 2012, and none had been pointed out by the defendants, that ousted the jurisdiction of the court to determine the issues raised.
  5. The record showed that on November 25, 2008, the High Court at Eldoret granted the plaintiffs leave to file the instant suit out of time in Miscellaneous Application No 388 of 2008. The High Court at Eldoret specifically directed that the suit be filed at the High Court in Kitale within 30 days. Indeed, the suit was originally filed at that court on December 17, 2008 before it was transferred to the instant court on February 20, 2020. No appeal was filed against the orders by the High Court at Eldoret granting the plaintiffs leave to file the suit out of time. The issue of limitation was not well taken.
  6. Section 13A of the Government Proceedings Act was declared unconstitutional in Kenya Bus Service Ltd & another v Minister for Transport & 2 others 2012 eKLR. The Court of Appeal agreed with that finding in David Njenga Ngugi v A – G C. A Civil Appeal No 297 of 2004 [2016 eKLR]. That decision was binding on the instant court. In any event, among the documents produced by the plaintiffs vide the supplementary list of documents dated November 18, 2020 was a notice dated July 16, 2008 and served on the Attorney General’s State law Office Nairobi in conformity with the provisions of section 13A. The defendants did not cast doubt on the authenticity of that notice. Therefore, the plaintiffs had in fact fully complied with the law in 2008 prior to filing the suit.
  7. The plaintiffs approached the court suing as representatives of the Community. The 1st plaintiff confirmed when cross-examined that the suit was filed on behalf of over 6000 members of the Community. The defendants having not called any evidence to rebut the oral testimony of the 1st plaintiff, the court was satisfied that indeed members of the Community were notified about the suit both by word of mouth and notices at public places. There was compliance with Order 1 rule 8 of the Civil Procedure Rules in the circumstances of the case.
  8. If an application had been made prior to the hearing to have members of the Community sign and file their authority, then the court, pursuant to article 159(2)(d) of the Constitution of Kenya, 2010 (Constitution), would have had no hesitation in allowing such application. Therefore, for purposes of the suit, the only plaintiffs were the 1st, 3rd and 4th plaintiffs.
  9. The report by the State Department of Environment and Natural Resources titled “Report on Chepkitale National Reserve and the Ogiek Community” was not only from a Government agency but it was also prepared 5 years after the suit was filed. Taken together with the letter dated Aril 3, 2002 by the then Permanent Secretary, Secretary to the Cabinet and Head of the Public Service as well as the evidence adduced by the plaintiffs, and which was not rebutted, prior to its conversion into a national reserve, Chepkitale was trust land held by the Mt Elgon County Council in trust for the Community.
  10. The conversion of the land in dispute from trust land to a national reserve was done through the Legal Notice No 88 dated June 6, 2000. That was during the regime of the repealed Constitution. The relevant law which was enacted under sections 114(2), 115(1) and (2), and 117(1), (3) and (4) of the repealed Constitution was the repealed Trust Lands Act Cap 288 Laws of Kenya. The competent authority was the Mt Elgon County Council and since the land in dispute was previously trust land, it was mandatory that the relevant constitutional and other legal provisions cited were adhered to before any such authority could be given.
  11. The Mt Elgon County Council did not comply with the Constitution and other relevant laws in converting the land in dispute form trust land to a national reserve. If it had done so, nothing would have been easier than availing those notices and other documentary evidence during the trial. The plaintiffs discharged the burden cast on them when they testified that in fact there was no compliance with the law and the evidential burden shifted to the defendants to prove the contrary because it was never easy to prove the negative. However, the defendants elected not to call any witnesses to rebut the plaintiffs’ testimony.
  12. In Samuel M’amaroo M’kaura & 9 others v Meru County Government & 3 others 2018 eKLR, the respondents called witnesses who testified that indeed the requisite notices were issued by the Nyambene County Council as required in law. The court in that case was able to see the impugned notices. In the instant case, no such notices were exhibited.
  13. Pleadings and submissions, no matter how robust or persuasive, were not evidence upon which a court could base any decision. Disputes were only determined on the basis of the parties’ evidence. Therefore, in the absence of any evidence by the defendants to rebut the plaintiffs’ testimony, it remained uncontroverted and the court had to accept it as the truth.
  14. There was nothing to suggest that the Second Schedule to the Environmental Management and Co-ordination Act was applicable since there was no urban development being proposed in the national reserve as per paragraph 2(d). However, in so far as what was being proposed was the establishment of protected areas, buffer zones and wilderness areas as provided for under paragraph 13(a) of the Second Schedule, then an environmental impact assessment report (EIA) was necessary. There was no evidence that such a report was carried out. The purpose of an EIA report was to assess the likely significant impact of a proposed project on the environment and in preparing such a report, account had to be taken of the status of the environment in which the proposed project was being undertaken.
  15. The plaintiffs had no authority, as required in law, from members of the Community to file the suit on their behalf. There was a lapse in failing to get their authority and it would therefore be a remiss on the part of the court to make orders touching on strangers to the suit.
Suit partly allowed; defendants to meet the plaintiffs’ costs.
Orders:
  • A declaration was issued that the conversion of the suit land into a national reserve vide the Gazette Notice No 88 dated June 6, 2000 was unconstitutional, unlawful and of no legal effect. The land was to revert to the pre-June 6, 2000 status.


Kenya Law
Case Updates Issue 010/22-23
Case Summaries
CONSTITUTIONAL LAW

The The doctrine of exhaustion can be applied where the authenticity of academic certificates of political aspirants are challenged in court in light of IEBC’s Dispute Resolution Committee’s determination that it doesn’t have the jurisdiction to ascertain the authenticity of academic certificates

Muka & another v Malala & 12 others; Commission for University Education & 2 others (Interested Party) (Constitutional Petition E002 & E001 of 2022 (Consolidated)) [2022] KEHC 10131 (KLR) (23 June 2022) (Ruling)
Neutral citation: [2022] KEHC 10131 (KLR)
High Court at Kakamega
PJO Otieno, J
Reported by Kakai Toili

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Summary Significance: The preliminary objection was filed on among other grounds that the petition and application be dismissed for want of jurisdiction as they, and by extension the court were usurping the 3rd and 4th respondents’ jurisdiction and mandate to nominate, validate or invalidate the 1st respondent’s nomination to vie for the position of Governor Kakamega County. The court noted that the consequence of an election not being conducted in accordance with the Constitution were dire such as the conduct of fresh elections at the very least but the ignominy was the overthrow of the rule of law as the ultimate price. The court pointed out that a court could not deny a litigant audience and leave such litigant without a recourse. The court thus held that the instant case was an apt case for application of the exceptions to the doctrine of exhaustion.

Constitutional Law - institution of constitutional petitions - doctrine of exhaustion - applicability of the doctrine of exhaustion - whether the doctrine of exhaustion could be applied where the authenticity of academic certificates of political aspirants were challenged in court in light of the Independent Electoral and Boundaries Commission’s Dispute Resolution Committee’s determination that it did not have jurisdiction to ascertain the authenticity of academic certificates - Constitution of Kenya, 2010, article 88(4).
Jurisdiction - jurisdiction of the High Court - jurisdiction to determine disputes concerning the legality, authenticity and genuineness of academic certificates - whether the High Court could determine disputes concerning the legality, authenticity and genuineness of academic certificates presented by an election aspirant - Constitution of Kenya, 2010, article 88(4).
Electoral Law - elections - conduct of elections - what was the consequence of an election not being conducted in accordance with the Constitution.

Brief fact:
The 3rd and 4th respondents filed the instant preliminary objection on the grounds; that the petition and the application be dismissed for want of jurisdiction as the petition and the application and by extension the court were usurping the 3rd and 4th respondents’ jurisdiction and mandate to nominate, validate or invalidate the 1st respondent’s nomination; that the petition and the application be dismissed as they sought the court to interfere and direct the 3rd and 4th respondents on how to carry out their mandate ; and that the petition and the application be dismissed for want of jurisdiction.

The 1st respondent submitted that article 88(4) of the Constitution of Kenya, 2010 (Constitution) mandated the 6th and 7th respondents (the Independent Electoral and Boundaries Commission and the Returning Officer Kakamega County respectively) to determine pre-election disputes. The 1st respondent argued that the jurisdiction of the court in pre-election disputes was supervisory. He further submitted that where the law had established a dispute resolution mechanism, no other body could usurp such powers. The 6th and 7th respondents contended that the court could not clothe itself with original jurisdiction in matters it did not have original jurisdiction.
The petitioners argued that the petition touched on the genuineness of academic documents presented by the 1st respondent to the 6th respondent and that the 6th respondent did not have the mandate to determine the validity and genuineness of a document presented by an aspirant or candidate.The petitioners further argued that the 6th respondent had no investigative machinery to undertake enquiries into the validity and legitimacy of academic certificates and credentials supplied by candidates and in support of that position.

Issues:

  1. Whether the doctrine of exhaustion could be applied where the authenticity of academic certificates of political aspirants were challenged in court in light of the Independent Electoral and Boundaries Commission’s Dispute Resolution Committee determination that it did not have jurisdiction to ascertain the authenticity of academic certificates.
  2. Whether the High Court could determine disputes concerning the legality, authenticity and genuineness of academic certificates presented by an election aspirant.
  3. What was the consequence of an election not being conducted in accordance with the Constitution?
  4. \Read More..

Relevant provisions of the law
Constitution of Kenya, 2010
Article 88 - Independent Electoral and Boundaries Commission
(4) The Commission is responsible for conducting or supervising referenda and elections to any elective body or office established by this Constitution, and any other elections as prescribed by an Act of Parliament and, in particular, for—
(e) the settlement of electoral disputes, including disputes relating to or arising from nominations but excluding election petitions and disputes subsequent to the declaration of election results;

Held:

  1. The Constitution had assigned different organs the jurisdiction to determine disputes of different categories and such organs and bodies had to be allowed to grow and execute mandates. Article 88(4) of the Constitution for example vested the power to handle pre-election disputes including nomination disputes.To give effect to the constitutional provision, section 74(1) of the Elections Act reiterated the mandate almost verbatim.
  2. The academic qualifications for a person vying for the seat of a governor was legislated in article 180(2) as read with article 193(1)(b) of the Constitution and broken down to the details by section 22(1)(b)(ii) of the Elections Act. The base line was that to be eligible to contest the office of the governor of a county, one had to be a holder of a degree from a university recognized in Kenya. Over and above the statutory set academic requirement the overriding moral and ethical standing for any public office remained firmly indispensable.
  3. The rule of law had to be obeyed as a pillar of values and principles of governance. The consequence of an election not conducted in accordance with the Constitution were dire such as the conduct of fresh elections at the very least but the ignominy was the overthrow of the rule of law as the ultimate price.
  4. The law had to be obeyed and before it locked a party from being heard by resorting to the very draconian remedy of striking out a matter, it ought to conduct a full inquiry into the legitimacy of the academic certificates presented by the 1st respondent so as to ensure that elections were carried out in accordance with the Constitution.
  5. While the instant matter was pending determination, the forum the respondents were asking the court to direct the petitioners to, the 6th respondent’s Dispute Resolution Committee (the Committee), in Complaint No. 230 of 2022, Denis Gakuo Wahome v Sakaja Koskei Nelson and another, (unreported) delivered on June 19, 2022, had delivered itself and determined that it lacked the mandate and thus jurisdiction to investigate or otherwise ascertain the authenticity of academic certificates presented to it by a political aspirant beyond the provisions of regulation 47, Election (General) Regulations, 2012.
  6. With that development in Denis Gakuo Wahome v Sakaja Koskei Nelson and another, and before it was challenged and reversed by the court, and noting that the instant complaint was on the same allegations as in the matter before the Committee, it would be an injustice by way of denial of a right to access justice to accede to the preliminary objection and render the petitioners without a forum. A court of law could not deny a litigant audience and leave such litigant without a recourse. The instant case was an apt case for application of the exceptions to the doctrine of exhaustion in that a value of the Constitution regarding the rule of law would not be served if the court declined jurisdiction.
  7. [Obiter] I shudder to ask what would be the outcome of a clear case of an illegible candidate who get his way into victory and into the office of a governor then it merges that he had no qualifications at all! Would an election court turn its eyes and face the other way and acquiesce to the obvious violation of the law? Wouldn’t the court ask itself whether it can acquiesce to an illegality or improper conduct?

Preliminary objection dismissed with costs being in the cause.