The Petitioner’s case
1. The Petitioner herein is a resident of Kitui County and claims that he is possessed of land, economic and social rights as well as fundamental rights and the right to fair administrative action.
2. The Petitioner avers that on 30th June 2023, the County Executive Member (CECM) for Trade and Industry in Kitui County met a joint committee of the Management and Supervisory Committees of Yatta B2 Ranching and Co-operative Society Ltd.
3. During the meeting, several resolutions were made, whose net effect is to grant the County Executive sweeping powers to identify and excise 1500 acres of Land from the Society’s leased land at Kanyonyoo for establishment of a ‘Special Economic Zone’ in return for a myriad of favours from the County and the CECM for Lands, Housing and Urban Development directed the District Surveyor to move to the ground, identify and excise the said land sometime in November 2023.
4. The Petitioner’s Constitutional foundation of the Petition is Articles 1(1), 2 2(4), 3, 10(2), 22, 40, 60,63258(1), 259(1) of the Constitution of Kenya,
5. The basis of the Petitioner’s complaint is that as per the terms of the Lease granted to Yatta B2 Ranching and Co-operative Society Ltd by the defunct County Council of Nairobi in 1965 vide Grant No. I.R.N 2310, one of the special conditions was that the land was to be used for ranching purposes only.
6. The Petitioner contends that the County Government should have involved the public before commencing the process and that the land cannot be excised without public participation as per Article 10 of the Constitution.
7. The Petitioner avers that the joint committee has no powers to cede the said land as it purports to have done in its meeting on 30/6/2023. Such a decision must be deliberated upon and voted for in an Annual General Meeting, where the ceding of the land is an item on the agenda.
8. He avers that the Sacco has not held an AGM recently to elect a new committee. The joint committee that passed the resolutions is therefore not properly in office, and the Committee acted ultra vires as the Sacco bylaws do not authorize them to make such a decision as a committee.
9. The injury likely to be caused by these actions, according to the Petitioner, is that the lack of prompt and adequate compensation violates the economic rights of the Petitioner and the residents of Kitui County and goes against the right to own and protect property rights in Kenya.
10. Secondly, converting the ranch into a special economic zone where industrial parks will be built will destroy the sensitive ecological zone which needs to be protected to preserve the number of indigenous flora and fauna found in the forest. The Petitioner also states that the land extends to Machakos County, therefore, the negative effects of destroying the indigenous forest will be felt across the border without involving the people of Machakos County.
11. The Petitioner also points out that there has been no Environmental Impact Assessment carried out before the project, therefore, they cannot know the extent of damage likely to be caused to the environment. The Petitioner believes that this will entrench impunity in the County institutions which will continue discharging their mandate as they wish.
12. The Petitioner prays for the following relief:
a) A declaration that the County Government of Kitui did not conduct adequate and/or effective public participation before passing the decision to excise the 1500 acres from Yatta Ranching Society Land.
b) A declaration that the attempt to excise the said parcel of land without public participation violates Article 10 of the Constitution of Kenya and is therefore null and void.
c) A declaration that the decision to excise 1500 acres of land was made without the requisite Environmental Impact Assessment Report and is therefore a nullity.
d) A declaration that the Land Leased to Yatta Ranching Society Ltd forms part of the collective wealth of the people of Kitui County with significant cultural and strategic importance to the region and can only be excised with the consent of the people through proper public participation.
e) Costs of this Petition.
13. The Petition is supported by the affidavit of the Petitioner where he reiterated the contents of his Petition, deposing that the impugned decision is injurious to his fundamental rights and freedoms as well as those of the people of Kitui County.
The Respondent’s Replying Affidavit
14. The Respondent filed a replying affidavit sworn by Fredrick Kimanga, the Respondent’s County Executive Member in charge of Lands. He deposed that the Respondent is the trustee of those parcels of land known as LR 12010 and LR No.11802, both of which B2 Yatta Ranching Co-operative Society has an interest in.
15. It was deposed that the Respondent is permitted under Section 6 of the County Governments Act No.17 of 2012 to exercise powers for the necessary discharge of their functions to acquire, purchase or lease any land and therefore to engage with the said B2 Yatta Co-operative Society or any other party.
16. Secondly, it is contended that the Petitioner has not demonstrated that he is a member of the said B2 Yatta Co-operative Society. He has also shown that he has a complaint that the society did not include him, and his recourse lies with the society.
17. The Respondent faulted the minutes/resolutions annexed by the Petitioner, stating that there was no attendance by any official of the Respondent and thus the Petitioner is inviting the Honourable Court to engage in speculation as to whether a meeting was held between himself and the management of B2 Yatta Co-operative Society.
18. The Respondent’s case is that the Petition has nothing to support a violation of Constitutional rights, deposing that the Petitioner was never an owner of the disputed 1500 acres at Kanyonyoo, has not demonstrated with specificity what ecological zone will be destroyed and what can be done to balance that with human development, has failed to demonstrate that there was an Environmental Impact Assessment report but merely states that there was not one and has failed to demonstrate the alleged impunity.
19. The Respondent states that there was public participation in the decision to set up a special economic zone and annexed the invitation for Public Participation dated 31st October 2023, an attendance register for the said public participation held on 2nd November 2023 and a Report on the public participation forum.
20. The Respondent prays that the Petition be dismissed with costs for lacking specificity as to the nature of the alleged violation of the Petitioner’s Constitutional Rights, that the Petitioner lacks locus standi to bring this petition, for failing to demonstrate that he is a member of B2 Yatta Ranching Company and that the Petition is without agenda and is merely obstructive of the Respondent’s development agenda.
The Petitioners’ Written Submissions
21. Counsel for the petitioner submits the following issues for determination:
A) Whether there was effective public participation before passing the impugned decision.
B) Whether the suit land can be converted to any other use in the face of the special condition in the title that it can only be used for Ranching.
C) Whether there was any Environmental Impact Assessment Report done prior to making the impugned decision.
D) Whether the purported Special Economic Zone can be established in such an ecologically sensitive area, which by law is supposed to be protected.
22. Concerning the issue of public participation, Counsel submitted that it means taking part in something and does not mean listening. The Petitioner states that summoning a group of people to attend a meeting where those in authority talk and take minutes and names of attendees cannot meet the threshold of public participation. The Petitioner states that the evidence adduced by the respondent shows that the participants were Chief Officers and CECMs of the county, that the list of attendees is a sham, and that the names and signatures are forgeries. For this position, they rely on the case of John Muraya Mwangi & 495 others v Minister for State for Provincial Administration & Internal Security & 4 others (2014 eKLR) and Merafong Demarcation Forum and Others V The Republic of South Africa and Others.
23. Relying on Article 69(1)(a) of the Constitution of Kenya and rule 58 of the Environment Management and Co-ordination regulations, the Petitioner submitted that an Environmental Impact Assessment Report was not done because, to date, no such report has been made public by the County Government of Kitui. He submits that if the project continues without knowing its impact, this will be detrimental to residents of both Kitui and Machakos Counties. He relied on the case of Rodgers Muema Nzioka & 2 others vs Tiomin Kenya Ltd Civil Case 97 of 2001.
24. It is the Petitioner's submission that in the absence of an EIA and no knowledge of the impact of the proposed project, the whole process is illegal and very dangerous to the public as well as the environment.
25. The Petitioner also submits that the suit land title contains a special condition in the title that it can only be used for Ranching and that no change of user has been done to change the status of the land from a Ranch to any other use.
26. The Petitioners’ final ground is whether the proposed Special Economic Zone can be established in such an ecologically sensitive area, which by law is supposed to be protected. It is Petitioner's posit that the counties of Kitui and Machakos are home to thousands, if not millions, of flora and fauna and the acts of the Respondent will have devastating effects on both the environment and the residents of the area. They relied on the authority of Wamaua & 2 others vs Attorney General & 4 others Petition E002 of 2022
The Respondent’s Written Submissions
27. Counsel for the Respondent filed submissions dated 9th July 2024. They submit the following issues for determination:
A) Whether the Respondent conducted public participation prior to making the decision to set up a special economic zone?
B) Whether the Petitioner can bring a case before this Honorable Court alleging violation of his constitutional rights by the Respondent based on the allegations?
C) Whether the Petition has merit with regard to legal imperatives and precedent?
28. With respect to whether the Respondent conducted public participation, Counsel for the Respondent submitted that the County Government has the power under section 6 of the County Governments Act to inter alia, "acquire, purchase or lease any land” in discharging its functions as outlined under the fourth schedule of the constitution. Under the same section, the Respondent also must ensure inclusivity and participation by its people in exercising its powers and functions. It was submitted that the Respondent in deciding to set up a special economic zone to benefit the people within its jurisdiction, did conduct public participation which guided its decision the Respondent states that it has adduced sufficient evidence of public participation, but points out that because not every single resident’s opinion can be sought, the report on public participation was made available and that the Petitioner could have availed himself of that information.
29. On the second issue, it is the Respondent's position that the Petitioners lack locus standi since they have not availed proof of membership in B2Yatta Cooperative Society. They contend that having no stated community or association with the cooperative and having been represented by the Respondent in its capacity to act in the best interest of the residents of Kitui, the Petitioner has no independent locus to bring the suit. It was submitted that the Petitioner has not shown how his rights are allegedly violated and lacks Locus Standi to bring this suit to court.
30. The third issue the Respondent raises is whether the Petition meets the specificity or precision threshold. The Respondent quotes the case of Anarita Karimi Njeru v Republic [1979] eKLR. It is their submission that the facts as submitted by the Petitioner are hazy and unverified and that the court is being invited to verify facts which should have been verified by the Petitioner and analyze general articles of the constitution.
31. Finally, the Respondent submits that the Petitioner had other avenues of dealing with the dispute. The Respondent contends that in a constitutional petition, the Petitioner had a duty to show that he had exhausted all other avenues to resolve the matter. They quote the case of Gabriel Mutava & 2 Others v Managing Director Kenya Ports Authority & Another [2016] for the proposition that constitutional litigation is a serious matter and not all manner of litigation should be christened constitutional when it can be handled in other forums.
Analysis and Determination
32. This court has had occasion to consider the petition, reply and submissions of the parties. The parties have submitted on various issues. Upon reflection on the various issues, the court considers the main issues as:
A) Whether the Petition is rightly before this court.
B) Whether the Petitioner is deserving of the prayers sought?
C) Who should pay the costs of this suit?
Whether the Petition is rightly before this court.
33. The Respondent contends that the Petition has not met the threshold of a Constitutional Petition and that the Petitioner does not have the locus standi to bring this Petition. The constitution provides as follows with respect to the right to claim relief for constitutional violations. Article 22(1) provides as follows:
“Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.”
34. It is trite in law that anyone seeking a declaration from the High Court that their rights have been infringed must specifically state which rights have been infringed and how they have been infringed. This was stated in the case of Anarita Karimi Njeru v Republic [1979]eKLR, where the Court held:
“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
35. The Petition has listed Articles 1(1), 2 2(4), 3, 10(2), 22, 40, 60,63, 258(1), 259(1) of the Constitution of Kenya(2010) as the Constitutional basis, while explaining the factual basis behind relying on these provisions. The Petitioner lists out the supposed constitutional violations as follows;
36. The injury likely to be caused by these actions, according to the Petitioner, is that the lack of prompt and adequate compensation violates the economic rights of the Petitioner and the residents of Kitui County and goes against the right to own and protection of property rights in Kenya.
37. Secondly, converting the ranch into a special economic zone where industrial parks will be built will destroy the sensitive ecological zone, which needs to be protected to preserve the indigenous flora and fauna found in the forest.
38. The Petitioner also states that the land extends to Machakos County, therefore, the negative effects of destroying the indigenous forest will be felt across the border without involving the people of Machakos County.
39. The Petitioner also points out that an Environmental Impact Assessment was carried out before the project was approved therefore, they cannot know the extent of damage likely to be caused to the environment.
40. It is the Court’s view that the Petitioner has laid out clearly the Therefore it is clear that the Petitioner is rightly before this court. In the Court of Appeal case of Mohamed Fugicha v Methodist church in Kenya (suing through its registered trustees) & 3 others [2016] eKLR it was stated that:
“We are quite clear in our minds that whereas the Hon. the Chief Justice in making the Rules did set out what a petition ought to contain, it cannot have been his intention, and nor could it be, in the face of express constitutional pronouncement, to invest those rules with a stone cast rigidity they cannot possibly possess. It seems to us unacceptable in principle that a creeping formalism should be allowed to claw back and constrict the door to access to justice flung open by the Constitution when it removed the strictures of standing and formality that formerly held sway. We apprehend that the primary purpose of pleadings is to communicate with an appreciable degree of certainty and clarity the complaints that a pleader brings before the court and to serve as sufficient notice to the party impleaded to enable him to know what case to answer. Within that general rubric of notification to court and respondent, the Constitution, if it says anything at all on this subject, clearly does not lionize form over substance.
Thus, while ANARITA and other cases decided prior to the Constitution of 2010 were decided correctly in their context with their insistence on specificity, the constitutional text now doubtless presents an epochal shift that would preserve informal pleadings that would otherwise have been struck out in former times. We are satisfied that there was no doubt at all as to what Fugicha’s complaints were, against whom they were, and the provision of the Constitution he alleged had been violated or contravened.”
41. Following the above Court of Appeal authority, this Court chooses to follow the path of less formality and to keep the door to access to justice flung open as the Constitution provided when it removed the strictures of standing and formality that formerly held sway.
42. The Court further finds that even though the Petitioner has not attached any proof that he is a member of the B2 Yatta Ranching Society, he has a right as a resident of Kitui to file such a Petition under Article 22(1) of the Constitution.
Whether the Petitioner is deserving of the prayers sought
43. Whereas the Petitioner has spelt out with specificity the potential violations of the constitution, it is in doubt whether they have addressed the court with enough proof to entitle them to the reliefs sought.
44. The Petitioner attached to his supporting affidavit a lease document for 99 years from 1st March 1965 of Land Reference 11802 under I.R NO, 2310 from the County Council of Kitui to Kitui Yatta Kanyonyooni Cooperative Society Limited. The petitioner and respondent refer to a society known as the B2 Yatta Ranching Cooperative Society. It is clear that the parties assumed the said cooperative to be the same but no averments were made and no proof was adduced to show that Kitui Yatta Kanyonyooni Cooperative Society Limited is the same as B2 Yatta Ranching Cooperative Society.
45. This takes us to the next matter, the owner of the suit property, whether Kitui Yatta Kanyonyooni Cooperative Society Limited or B2 Yatta Ranching Cooperative Society, is not joined in the suit herein. This court is invited to make decisions that affect the proprietary rights of B2 Yatta Ranching Cooperative Society without hearing what they have to say. Article 50 (1) of the constitution provides that: every person has a right to have any dispute that can be resolved by the application of the law decided in a fair and public hearing before a court or an independent and impartial tribunal or body.
46. The Petitioner is inviting this court to make findings that the cooperative is being unlawfully deprived of its property yet the cooperative is not present before the court to submit on the same. Courts in Kenya follow the audi alteram partem principle that no man shall be condemned unheard, this court cannot, therefore make determinations that will affect the said cooperative without giving them an opportunity to make representations on the various allegations with respect to deprivation of their property rights by the Respondent as alleged by the Petitioner. This means that the omission of a necessary party can render proceedings unconstitutional.
47. Further, the petition herein is based on the decision made on 30th June 2023, evidenced by the minutes of the meeting held by the B2 Yatta Ranching Co-operatives Society Ltd joint committee. In minute 3 of the said meeting, they deliberated on what they titled as Kitui Ministry of Trade discussion of their request. One of the agreements arrived at in this meeting was that “in order to progress further in this case, members unanimously resolved to cede the requested one thousand five hundred (1,500) acres under the following conditions” One of the conditions was that “Kitui County Ministry of Trade should do a formal request to B2 Yatta Ranching Co-operatives Society detailing clearly their intended activities and the space area needed”
48. From the foregoing, it is clear that the decision to cede the land to the County, if at all it was made, was by the Co-operative Society. As stated earlier, B2 Yatta Ranching Co-operatives Society Ltd is not a party to this suit to confirm one way or the other whether such a meeting was held and whether the resolutions stated to have been arrived at were indeed arrived at. The court does not have in it is records the request for land said to have been made by the Respondent, and the details of the purpose for which the land was sought are to be given later pursuant to the meeting of 30th June 2023. From the said minutes, the matters raised were still under discussion.
49. The Respondent attached to the replying affidavit a report on public participation in the proposed establishment of Kitui County Aggregation and Industrial Park. The views of the registered leases of the land B2 Yatta Ranching Co-operative Society Ltd have not been captured even though they are said to have been present at the meeting.
50. The Petitioner was alerted of the question of failure to join to this suit the owner of the land when counsel for the Petitioner applied for interim orders on 5th March 2024, and the same was declined for the same reason. In the Court’s view, the failure to join B2 Yatta Ranching Co-operatives Society Ltd, which the court thinks is a relevant party, raises many questions. One is the risk of an incomplete or ineffective judgment. This is because the absent party's rights or obligations may be directly affected by the outcome. The judgment may not be enforceable against the absent party, leading to difficulties in implementation. Further, failure to join the relevant party puts the court at risk of multiple litigations arising from the same dispute.
51. The court is also of the view that the owner of the suit land seems to have had information and/or evidence, whether oral or documentary, that would have clearly elucidated some of the issues raised in this petition. The Court is of the view that failure to join them in the suit serves to indicate, as the most natural inference, that the petitioner fears to do so, and this fear is evidence that the party is brought, would have exposed facts unfavorable to the Petitioner.
52. It is, therefore, this court's position that in the absence of the proprietor of the suit property, the court cannot make any determination with respect to the prayers sought in the Petition.
53. Having found as above, the Court finds no necessity in dealing with the other issues raised in the petition as the same are ancillary to the main issue already determined,
54. The final order of the Court is that the Petition dated 24th January 2024 lacks merit and is dismissed in its entirety with costs to the Respondent.
Dated, Signed and Delivered at Nyeri this 13th day of March, 2025