The Environment and Land Court has dismissed a constitutional petition challenging the allocation of 288 acres of land in Kibra to the Kibra Nubian Community Land Trust, ruling that the process was lawful, transparent and involved adequate public participation.
In a landmark judgment, the court rejected claims by two residents' associations that the conversion of the land from public to community land and the subsequent issuance of title to the Nubian community violated their constitutional rights.
The petitioners had argued that the process leading to the preparation of the Physical Development Plan (PDP), the conversion of Grant I.R. No. 149108 into community land and its allocation to the Kibra Nubian Community Land Trust was undertaken without meaningful public participation. They also alleged violations of their rights to equality, property, housing, and fair administrative action, and sought the cancellation of the community title, along with Sh10 billion in compensation.
However, the court found that the constitutional threshold for the petition had been met procedurally but held that the substantive claims lacked merit.
Justice Christine Ochieng held that the planning process complied with legal requirements, noting that the Physical Development Plan was gazetted, advertised in national newspapers, and that members of the public were invited to lodge objections within the statutory 60-day period.
"I find that there was indeed public participation in the development of the impugned PDP. I will decline to quash it and deem it as valid," the judge ruled.
The court observed that the petitioners admitted participating in the process by lodging objections but failed to prove that they had been excluded or that their objections were improperly ignored.
The judge further emphasised that public participation does not require every view raised by members of the public to be adopted.
"Public participation does not require every view to be adopted in the outcome, but so long as the views are collected, considered and collated," the court stated.
On the claim of discrimination, the court found that allocating the land to the Nubian community was intended to address historical injustices suffered by the community, which had occupied the area since the colonial era.
The judge noted that the petitioners themselves had not disputed findings in previous national reports documenting historical injustices against the Nubian community.
The court also rejected claims that the petitioners had acquired ownership rights through long occupation of the land, holding that Article 40 of the Constitution protects legally recognisable proprietary interests rather than mere occupation.
It further dismissed the claim for Sh10 billion compensation, finding that the petitioners failed to produce valuation reports or evidence demonstrating the extent and value of the properties they claimed would be affected.
The court ultimately found that the petitioners had failed to prove fraud, illegality, procedural impropriety or misrepresentation that would justify cancellation of the title issued to the Kibra Nubian Community Land Trust.
"The 1st Interested Party was able to prove it legally acquired the suit land through allocation from the government, and the impugned PDP supporting the title is indeed valid as it was issued after proper public participation," the judge concluded.
Comments
Sign in with Google to comment, reply, and like comments.
Continue with Google