Keshio & 2 others v County Government of Kisumu & another

the boundaries of the two counties, the 2nd respondent reached that decision without according the 1st respondent an opportunity to be heard. The 1st respondent further alleged that the 2nd respondent failed to obtain its consent before alienating public land held in trust on its behalf contrary to Section 5(2)(a) of the National Land Commission Act; failed to consult and cooperate with it as required by Section 17 of the Act; and acted in excess of its constitutional mandate by eectively altering county boundaries contrary to Article 188(1) of the Constitution. 3. The 1st respondent sought declaratory orders that the 2nd respondent’s decision was unlawful, unconstitutional and ultra vires, together with an order of certiorari quashing Gazette Notice No. 1995 dated 1st March, 2019. 4. The appellants, who were enjoined in the proceedings as interested parties in their capacity as trustees of the Nyando Valley Association, opposed the petition vide their response to the petition dated 18th September, 2019. They maintained that the petition was devoid of merit and was an attempt to overturn a lawful determination made by the 2nd respondent in exercise of its constitutional mandate under Article 67(2)(e) of the Constitution. The appellants averred that Nyando Valley Association had lodged Historical Land Injustice Claim No. NLC/HLI/010/2017 before the 2nd respondent seeking redress for historical injustices suered by its members during the colonial period and sought to reclaim their ancestral land in the Nyando Valley region. 5. Upon hearing the claim, the 2nd respondent found in their favour and recommended, through Gazette Notice No. 1995 published on 1st March 2019, that part of L.R. 11840 be set aside through the Privatization Commission for settlement of members of the Association using a predetermined formula. The appellants denied the assertion that the 1st respondent had been condemned unheard. They asserted that the 2nd respondent had, on its own motion, enjoined the 1st respondent as an interested party in the proceedings, and had invited it to participate in the proceedings on several occasions. According to the appellants, the 1st respondent simply failed to participate in the proceedings despite having been duly notied and could not therefore complain of a violation of its right to fair hearing. 6. The appellants further maintained that throughout the proceedings the 2nd respondent was categorical that it was neither mandated nor intended to alter administrative or electoral boundaries. They contended that the 2nd respondent’s decision merely addressed the historical land injustice claim and did not amount to a review of county boundaries as alleged by the 1st respondent. 7. Upon considering the petition, the learned Judge, in a judgment dated 26th February, 2020, found that although the proceedings before the 2nd respondent arose from a historical land injustice claim, the impugned recommendation inevitably aected the boundary between Kisumu and Nandi Counties. The learned Judge held that those who participated in the proceedings understood that the underlying issue related to the county boundary, notwithstanding that the Gazette Notice did not expressly state so. 8. The learned Judge further found that the 1st respondent had not been accorded a fair hearing before the 2nd respondent, since although it had been invited to attend the proceedings, the 1st respondent had neither been named as a party nor served with the appellants’ claim setting out the issues it was required to answer. The learned Judge concluded that all persons likely to be aected by the 2nd respondent’s decision were entitled to be heard before the decision was made. In the end, the learned Judge allowed the petition and issued an order of certiorari quashing the 2nd respondent’s decision contained in said Gazette Notice No. 1995 of 1st March 2019. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1853/eng@2026-09-25 2

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9. Being dissatised with the judgment and decree of the High Court, the appellants lodged the present appeal raising eight grounds which, in summary, contend that the learned Judge erred in law and fact by: 1. Misapprehending the nature of the dispute and failing to appreciate that the proceedings before the National Land Commission concerned the restoration of historical land injustices under Article 67(2)(e) of the Constitution, and not the review or alteration of county boundaries. 2. Finding that the 1st respondent had not been accorded an opportunity to be heard, despite evidence that it had been invited to participate in the proceedings before the 2nd respondent but elected not to do so. 3. Holding that the 1st respondent was a necessary party to the proceedings before the 2nd respondent, notwithstanding that the proceedings principally concerned the appellants' claim for redress of historical land injustices. 4. Failing to appreciate that the 2nd respondent had lawfully exercised its constitutional mandate by restoring land to persons displaced through colonial injustice, and that the restored land remained within the territory of Kenya. 5. Erroneously holding that issues relating to county boundaries fell within the scope of the proceedings before the 2nd respondent. 6. Failing to take into account the signicant milestone made by the 2nd respondent in fullling its constitutional mandate of addressing historical land injustices. 7. Failing to consider the public interest implications in determining the petition. 8. Consequently, arriving at an erroneous decision. 10. The appeal was heard by way of written submissions. Mr. Koech learned counsel appeared for the appellants. It was his submission that the 2nd respondent acted within its constitutional and statutory mandate under Article 67(2)(e) of the Constitution and Section 15 of the National Land Commission Act to investigate and recommend redress for historical land injustices. Counsel stated that the learned Judge mischaracterized the dispute as one concerning county boundaries, whereas the complaint before the 2nd respondent related solely to historical land injustice arising from colonial- era dispossession of land. He maintained that the Constitution clearly distinguishes the respective mandates of the 2nd respondent and the Independent Electoral and Boundaries Commission, the former being responsible for historical land injustice claims and the latter for boundary disputes, and that the learned Judge failed to appreciate that distinction. 11. Counsel for the appellants further submitted that the 1st respondent had been duly notied of, and invited to participate in the proceedings before the 2nd respondent, but deliberately failed to attend, thereby waiving the right to subsequently complain of a denial of a fair hearing. He contended that the learned Judge was wrong to nd that the 1st respondent was a necessary party in the proceedings before the 2nd respondent. Counsel further argued that the learned Judge overlooked the evidence demonstrating that the statutory requirements for a historical land injustice claim had been met and failed to consider the public interest served by the Commission's constitutional mandate to redress historical injustices. He urged the Court to nd that the learned Judge misapprehended the evidence https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1853/eng@2026-09-25 3

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and the applicable law, and consequently reached an erroneous decision. He therefore prayed that the appeal be allowed and the decision of the 2nd respondent be upheld. 12. The appeal was opposed. The 1st respondent contended that the learned Judge properly found that its constitutional right to fair hearing had been violated. It was submitted that the 1st respondent was never served with adequate notice of the issues it was required to answer to and was consequently denied an opportunity to be heard. The 1st respondent argued that the trial court correctly held that the principles of natural justice and Article 50(1) of the Constitution require that no person be condemned unheard. It was further submitted that the failure by the 2nd respondent to accord the 1st respondent a hearing rendered its proceedings unconstitutional, thereby justifying the judgment of the High Court. The 1st respondent also questioned the appellants' interest in pursuing the appeal when the alleged procedural violation was committed by the 2nd respondent, which had itself not challenged the impugned judgment and decree. Accordingly, the 1st respondent urged this Court to dismiss the appeal with costs. 13. The appeal was also opposed by the current ocials of the Nyando Valley Association, who were joined as interested parties in this appeal. They contended that by the time the appeal was instituted in 2021, the appellants had ceased to be ocials or trustees of the Association and therefore lacked authority to le and maintain the appeal on its behalf. They maintained that the Association did not support the appeal and instead wished to abide by the High Court's decision by participating in a fresh hearing before the 2nd respondent. In support of that position, they referred to correspondence exchanged after the High Court judgment between the parties, including the 2nd respondent’s letter dated 13th July, 2022, conrming its willingness to rehear the historical land injustice claim afresh, and to waive costs, if the appeal was withdrawn. They therefore urged the Court to dismiss the appeal, contending that it had only served to delay the rehearing of their claim before the 2nd respondent. 14. The 2nd respondent did not participate in this appeal. 15. This being a rst appeal, it is the duty of this Court to re-analyze and re-assess the evidence on record and reach its own conclusion. This duty was reiterated by this Court in Gitobu Imanyara & 2 other v Attorney General [2016] eKLR, where the court observed thus; “ An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briey put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.” See Selle v. Associated Motor Boat Co. [1968] EA 123. 16. One of the appellants' principal complaint in this appeal is that the learned Judge misapprehended the dispute by treating it as one concerning county boundaries, whereas the proceedings before the 2nd respondent were conned to restoration of historical land injustices under Article 67(2)(e) of the Constitution. In our view, the jurisdiction of the 2nd respondent to investigate and recommend redress for historical land injustices is not in dispute. Equally, nothing in this appeal questions the constitutional importance of that mandate. The issue before the High Court, and now before us, is whether, in implementing that mandate, the 2nd respondent reached a decision aecting the rights and interests of the 1st respondent without rst according it a fair hearing. 17. The record demonstrated that the claim presented before the 2nd respondent sought the restoration of part of L.R. No. 11840 which fell between both Kisumu and Nandi Counties. Following the hearing, the 2nd respondent recommended that part of that land be set aside for settlement of members of the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1853/eng@2026-09-25 4

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Nyando Valley Association. Although the Gazette Notice did not expressly refer to county boundaries, the practical consequence of the recommendation was to aect land lying between Kisumu and Nandi Counties. The learned Judge therefore cannot be faulted for concluding that the recommendation inevitably aected the boundary interests of the 1st respondent. 18. The appellants further faulted the learned Judge for nding that the 1st respondent's right to a fair hearing had been violated by the proceedings before the 2nd respondent. According to the appellants, the 1st respondent had been invited to participate in the proceedings but voluntarily elected not to do so, and could not therefore complain later of being condemned unheard. 19. The right to a fair hearing is one of the cardinal principles of our constitutional order. Article 50(1) of the Constitution guarantees every person the right to have any dispute capable of resolution by the application of law determined in a fair and public hearing before an independent and impartial tribunal or body. Equally, Article 47 of the Constitution and the rules of natural justice require that a person whose rights or interests are likely to be aected by an administrative decision is required to be given reasons for said action. This Court in Kai Mbaki & 2 others v Gichuhi Macharia & another [2005] eKLR (Nairobi Civil Appeal No. 178 of 2002) held as follows: “ The right to be heard is a valued right. It would oend all notions of justice if the rights of a party were to be prejudiced or aected without the party being aorded an opportunity to be heard.” 20. As correctly observed by the learned Judge, the question was not merely whether the 1st respondent had knowledge of the proceedings. Rather, the issue was whether it was notied of the claim it was required to answer to. The appellants and the 2nd respondent failed to avail evidence proving that the 1st respondent was either named as a party to the appellants’ claim, or served with necessary documentation disclosing that its proprietary and constitutional interests in public land would be directly aected. An invitation to attend proceedings, without disclosure of the nature of the claim and the issues to be determined, cannot satisfy the constitutional requirement and threshold of fair hearing. We therefore agree with the learned Judge that the 2nd respondent failed to suciently demonstrate that the 1st respondent had been aorded a meaningful opportunity to present its case before the impugned recommendation was made. 21. We likewise nd no merit in the appellants' contention that the 1st respondent was not a necessary party because the proceedings related solely to historical land injustices. The test is not the label attached to the proceedings but whether the decision was capable of aecting the legal rights or interests of another person. Once the 2nd respondent contemplated recommending allocation of public land held within Kisumu County for settlement of third parties from a dierent county, the 1st respondent became a party whose interests stood to be directly aected and was therefore entitled to be heard. 22. The appellants further contended that the learned Judge undermined or curtailed the 2nd respondent’s constitutional mandate to determine the dispute before it. We do not think so. The learned Judge did not hold that the 2nd respondent lacked jurisdiction to investigate historical land injustices. The learned Judge merely armed the elementary principle that the exercise of that constitutional power must conform to the requirements of procedural fairness. Indeed, rather than foreclosing the appellants’ claim detailing historical injustice before the 2nd respondent, the impugned judgment simply required that the matter be undertaken afresh before the 2nd respondent after all aected parties had been aorded an opportunity to participate. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1853/eng@2026-09-25 5

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23. We further note that according to the interested parties, the current ocials of Nyando Valley Association, the 2nd respondent has expressed its readiness to rehear the appellants’ complaint afresh upon withdrawal of this appeal. The 2nd respondent has not challenged the decision of the High Court. In those circumstances, the appellants' insistence on pursuing this appeal serves no discernible purpose other than to revive a decision already acknowledged to have been made without due consideration of the views of all aected parties to require reconsideration through a fresh hearing. 24. As we pen o, the issue of locus standi cannot be ignored. During the hearing of this appeal, it became apparent that the appellants had ceased to be ocials or trustees of the Nyando Valley Association, on whose behalf the historical injustice claim had originally been presented. The Association itself opposes this appeal and supports the rehearing proposed by the 2nd respondent. Having ceased to hold the oces through which they derived authority to represent the Association, the appellants no longer possess the requisite legal standing to continue litigating on its behalf or to insist upon reinstatement of the quashed decision. 25. In the result, it is our view that the learned Judge correctly appreciated that the dispute, though arising from a historical land injustice claim, culminated in a decision aecting the interests of the 1st respondent, which had not been aorded a meaningful opportunity to be heard. The order of certiorari was therefore properly issued. We nd no basis for interfering with the judgment and decree of the High Court. The appeal is accordingly dismissed. Given the 2nd respondent’s willingness to rehear the complaint and the importance of allowing all aected parties to participate in that process, we direct that each party shall bear its own costs of the appeal. CONCLUSIONS DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026. ASIKE-MAKHANDIA ............................ JUDGE OF APPEAL H.A. OMONDI ........................ JUDGE OF APPEAL L. KIMARU ....................... JUDGE OF APPEAL I certify that this is a true copy of original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1853/eng@2026-09-25 6

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