Chepng’ok & 3 others (Petitioning on Behalf of Members of the Ndorobo Community Registered as Kiboroa Self - Help Group) v National Land Commission & 4 others (Environment and Land Petition 1(B) of 2024) [2025] KEELC 4681 (KLR)
The bottom line
#A Kenyan court ordered the National Land Commission to finally decide a seven-year-old community land complaint within six months, but refused to hand over the disputed land itself.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.If the petitioners can institute the petition
- 2.If the petitioners are guilty of the non-exhaustion doctrine
- 3.If the petition is res judicata
- 4.If the petition meets the constitutional threshold
- 5.If the 1st respondent has inordinately delayed justice in investigating the complaint and recommending the appropriate redress
- 6.If the petitioners have proved a breach of their constitutional rights and freedoms
- 7.If the petitioners are entitled to any constitutional reliefs
- 8.What is the order as to cost
Key legal issues
#Locus standi of group representatives to institute the petition
The petitioners, as officials/members of the registered group and members of the Ndorobo minority community, had capacity to sue under articles 22 and 258; registration under the Community Groups Registration Act, 2022 cures identification concerns
The court applied Kipsiwo and Wilfred Juma Wasike, noting articles 22 and 258 are the cornerstone of locus standi and that a group may sue through its members or officials. The petitioners described the capacity in which they brought the petition, and the group's registration certificate dated January 9, 2022 was displayed. Article 56 protections for minorities and marginalized groups reinforced their standing.
Non-exhaustion of the NLC remedy
The court retained jurisdiction because the NLC's inordinate, unexplained delay in determining the complaint lodged since 2014/2017 violated the petitioners' rights, and exhaustion is subject to the adequacy and efficacy of the alternative forum
Citing Nicholas v Attorney General, KPLC v Bhoga and Jawara v Gambia, the court held alternative remedies must be efficacious and available. The NLC received the complaint as early as 2014 and admitted it in 2019 but held its first hearing only on September 16, 2024, after the petition was filed. Unexplained inaction could not be used to oust the court's jurisdiction.
Whether the petition raises constitutional questions
The petition raises genuine constitutional questions concerning rights of minorities, fair administrative action and the duties of state organs regarding resettlement
Applying CNM v WMG, the court held it must ask whether the argument forces consideration of constitutional rights or values. The issues required answers from the Constitution about the conduct, omissions and dereliction of the respondents and the rights of the landless. The doctrine of judicial restraint was inapplicable, and Ledidi Ole Tauta was held no longer to be good law on this point.
Breach of constitutional rights and legitimate expectation
The 1st respondent's inordinate delay violated fair administrative action and access to justice; promises and assurances of resettlement by state officers gave rise to a legitimate expectation, but no vested land interest was proved against the 2nd respondent
The court reviewed the correspondence trail from 2014, the Ombudsman's reminders, and the 1999 surrender of 61.55 Ha, applying KRA v Export and Fanikiwa on legitimate expectation. However, guided by Mirigo, the promise did not vest any interest within the stipulated period, and the petitioners failed to prove the surrender was exclusively for them or that the land fell within the gazetted forest reserve.
Root of the 2nd respondent's title to the suit land
The 2nd respondent failed to discharge the evidential burden of proving a valid root of title, since it did not show how the initial owner acquired land within (or prove the land was outside) the gazetted Mt Elgon Forest Reserve
Applying Munyu Maina and Dina Management, article 40(6) does not protect unlawfully acquired property. The 2nd respondent did not avail the initial grant, and its documents (NA-12(a), NA-12(c), NA-14) had missing dates, approvals, and inconsistent acreages. The court relied on Timothy Ingosi and Kenya Port Office Savings Bank on de-gazettement requirements before forest land allocation.
Legal principles established
#- The Environment and Land Court has jurisdiction to hear historical land injustice claims notwithstanding that the National Land Commission is seized of the same complaint
- Inordinate, unexplained delay by the National Land Commission in investigating a historical land injustice complaint amounts to a violation of fair administrative action, fair hearing and access to justice and does not oust the court's jurisdiction
- A registered proprietor whose title is under challenge must prove the legality of how the title was acquired, beyond the title instrument
- Forest communities deprived of land through gazettement of forest reserves have a constitutional basis for land rights under article 63(2) of the Constitution
- A future promise of land allocation not underpinned by statute and not vested within a stipulated time creates no enforceable interest and a court cannot order allocation of land
Court orders
#- 1.An order directing the 1st respondent (National Land Commission) to hear and determine the petitioners' pending complaint Reference No. NLC/HL1/593/2019 within 6 months from the date of the judgment, in terms of prayer (a) of the petition
- 2.The court declined to issue the rest of the reliefs (declarations of ongoing historical injustice, declaration that the 2nd respondent has no legal interest, and order of allocation of LR No. 9431/7/1 and 9431/8)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 23, 67(2)(e) of the Constitution and section 15 of the National Land Commission Act; the court found the ELC has jurisdiction over historical land injustice claims whether or not the NLC is seized of the matter
Relief refused
#Declaration that the 2nd respondent's continued occupation of LR No. 9431/7/1 and 9431/8 is an ongoing historical land injustice
No evidence that the surrender of 61.55 Ha was meant solely for the petitioners; no proof the suit land falls within the gazetted Mt Elgon Forest Reserve; no vested interest arose from the promise
Declaration that the 2nd respondent has no legal interest in LR No. 9431/7/1 and 9431/8
The petitioners did not avail concrete reports and maps showing the suit land falls within the cutline of the Mt Elgon Forest Reserve
Order that the 1st respondent allocates LR No. 9431/7/1 and 9431/8 to the petitioners for resettlement
Guided by Mirigo, no interest vested in the petitioners; the promise was a future promise not underpinned by statute; the court cannot direct allocation of specific land
Costs
No express costs order was made in the final orders; the judgment ends with 'Orders accordingly.'
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.
The order that commends itself is not to dismiss the petition but to issue an order directing the 1st respondent to hear and determine the petitioners’ pending complaint Reference No. (NLC/HL1/593/2019), within 6 months from the date hereof, in terms of prayer (a) of the petition, dated March 28, 2024. The court declines to issue the rest of the reliefs.
This court finds that it has the requisite jurisdiction to hear and determine the constitutional petition.
Looking at the cases alluded to above, Ledidi Ole Tauta & others v Attorney General & 2 others [2015] eKLR is no longer a good interpretation of the law.
Article 40(6) of the Constitution does not extend the property that is unlawfully acquired.
A bona fide purchaser must prove that it acquired a valid and legal title after carrying out due diligence.
Guided by the binding decision Mirigo and 550 others (supra), I cannot declare the petitioners’ squatters on the suit land.
The Bill of Rights applies both vertically and horizontally. I disagree with the 2nd respondent that the petitioners have no basis to lay their ancestral customary rights on privately owned land.
The delay as determined above by the 1st respondent in handling the complaint, amounts to denial of the petitioners’ rights to fair hearing, and Fair Administrative Action Act.
Issues in the judgment
#The 2nd respondent's acquisition date is given inconsistently in the judgment: in one passage the 2nd respondent is said to have acquired Chorlim Farm Ltd in 1968, while paragraph 120 describes a letter dated February 8, 2010 'in response to theirs dated November 13, 2019' although the 1st respondent's letter is elsewhere dated November 13, 2018
The acreage of the suit land is inconsistent within the judgment: the petition describes alienation of '3093 acres' while paragraph 127 records NA-14 as relating to land 'measuring 2300 and not 3043'
The 1st respondent's complaint reference number is rendered inconsistently as NLC/HLI/593/2019 and NLC/HL1/593/2019 within the judgment
The judgment states the Crown Land Ordinance 1915 or land to rest the question of native land right, an incomplete sentence, and dates of the surrender of 61.55 Ha are inconsistently given as December 24, 1999 and December 24, 2017 in different passages
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chepng’ok & 3 others (Petitioning on Behalf of Members of the Ndorobo Community Registered as Kiboroa Self - Help Group) v National Land Commission & 4 others (Environment and Land Petition 1(B) of 2024) [2025] KEELC 4681 (KLR)", Case Analysis (2025). Petition dated March 28, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4681/eng@2025-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.