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ELCDismissedNot stated in judgment (application dated 24/6/2025 within a petition)

Turkana Indigenous People Action for Development (TIPD) v Turkana County Government & 5 others (Environment and Land Petition E001 of 2025) [2025] KEELC 7179 (KLR)

Environment and Land Court
15 October 2025
5,575 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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Kenya's Environment and Land Court refused to force disclosure of a Turkana land lease because the applicant never first used the Access to Information Act process.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Kitale (C.K. Nzili, J) on an application dated 24/6/2025 in a pending petition. The applicant sought interim orders compelling the 1st-6th respondents to produce, pending the petition, the lease agreement executed in favour of the 6th respondent over community land belonging to the Nakukulas, Kasurio Kapese and Lomunyenkurat communities in Turkana, together with all documents leading to its execution, including records of public participation. The applicant alleged the 6th respondent had been engaged in oil exploration since 2010, that the County Government as trustee of unregistered community land had leased it to the 6th respondent, had received Kshs. 258,000,000/= in proceeds, and had withheld the lease agreement despite requests anchored on the right of access to information under Article 35. The 1st-4th respondents opposed, contending the petition failed the Anarita Karimi Njeru precision test, that the dispute was contractual and administrative, and that the applicant failed to exhaust remedies under the Access to Information Act and the Fair Administrative Action Act. The 6th respondent raised grounds of opposition alleging improper joinder. The court reviewed the access-to-information framework and jurisprudence, held that a court will only compel disclosure where a request was made and denied and statutory remedies exhausted, found no evidence of serious efforts to follow the statutory procedure and no established nexus between the information and the rights pursued, and dismissed the application. The 6th respondent's preliminary objection was allowed and it was struck out. The application was dismissed with no order as to 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 applicants followed the constitutional and statutory framework under Article 35 and the Access to Information Act before moving to court
  2. 2.Whether the applicants exhausted alternative remedies and demonstrated the nexus between the information sought and the pursuit of their constitutional rights
  3. 3.Whether the 6th respondent was properly joined as a party

Key legal issues

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01

Exhaustion of remedies under the Access to Information Act

Holding

The application failed because the applicants did not follow the statutory procedure, including invoking the Commission on Administrative Justice, before coming to court

Reasoning

Article 35 operationalized through the Access to Information Act requires a written request to the public entity, and on refusal an appeal to the Commission on Administrative Justice before court proceedings. The court found no evidence of serious efforts following the statutory procedure and timelines, and no demonstration of exceptional circumstances rendering the alternative forum ineffective. The court is a last resort, not the first port of call.

p. 10
02

Nexus between information sought and constitutional rights

Holding

The applicants did not establish the nexus between the information sought and the constitutional rights they seek to protect

Reasoning

Citing Dande, the court noted that where information is sought from or concerning private/commercial entities, the requester must demonstrate the right to be protected and that access is required to exercise or protect that right. The particulars, dates and relevance of the information and its impact on the applicants' rights were missing from the supporting affidavits.

p. 9
03

Joinder of the 6th respondent

Holding

The 6th respondent was improperly joined and was struck out on its preliminary objection

Reasoning

Under Order 1 Rule 9 of the Civil Procedure Rules, a proper party is one whose presence is necessary or relevant for effectual adjudication. The 6th respondent contended it was a distinct legal entity from Tullow Kenya B.V. and never party to the alleged agreements; the court allowed the preliminary objection but noted a suit is not defeated by misjoinder.

p. 11

Legal principles established

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  • Before a court compels disclosure under Article 35, the applicant must show the information was requested and the request denied, and must exhaust the statutory remedies under the Access to Information Act including review by the Commission on Administrative Justice
  • A suit is not defeated by misjoinder; an improperly joined party may be struck out

Court orders

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  1. 1.The Preliminary Objection by the 6th respondent is allowed and the 6th respondent is struck out of the proceedings
  2. 2.The application dated 24/6/2025 is dismissed with no order as to costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original constitutional jurisdiction of the Environment and Land Court; Article 35 of the Constitution and the Access to Information Act, 2016

Relief refused

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Order compelling the 1st-6th respondents to produce the lease agreement executed in favour of the 6th respondent over community land, pending the petition

Applicants failed to demonstrate they made and were denied a proper request under the Access to Information Act, failed to exhaust alternative remedies, and did not establish the nexus between the information sought and the rights pursued

p. 10

Order compelling production of all documents relating to the execution of the lease agreement, including records of public participation

The particulars of the information sought, dates, demands and relevance to rights were not proved; the burden on the applicant was not discharged

p. 11

Costs

Dismissed with no order as to 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.

The burden is on the applicant to prove the exhaustion doctrine and the nexus between the information sought and the pursuit of their constitutional rights and freedoms.
p. 10Burden of proof on exhaustion and nexus
Despite the respondents raising the defence of no-exhaustion of alternative remedies, there is no evidence tendered to show any serious efiorts that were made, as outlined in the procedure and the timelines laid out under the Access to Information Act.
p. 10Failure to exhaust statutory remedies
The upshot is I find the application lacking merit. It is dismissed with no order as to costs.
p. 11Disposition
The Preliminary Objection by the 6th respondent is allowed. The 6th respondent is hereby struck out of the proceedings.
p. 11Striking out the 6th respondent

Issues in the judgment

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minor

Judgment states the 6th respondent 'denied leasing community land from the 1st respondent' in a letter 'to the Ombudsman' but attributes it to the '5th respondent' in another passage; the recipient/actor references between the 5th and 6th respondents are inconsistent

minor

Respondents' replying affidavit is described inconsistently as sworn on 28/8/2025 and later as dated 28/8/2024

minor

Gazette Notice number cited inconsistently as No. 2060 of 2022 and No. 2026 of 2022

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, "Turkana Indigenous People Action for Development (TIPD) v Turkana County Government & 5 others (Environment and Land Petition E001 of 2025) [2025] KEELC 7179 (KLR)", Case Analysis (2025). Not stated in judgment (application dated 24/6/2025 within a petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7179/eng@2025-10-15

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