https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4273

Buya & others (Suing on Behalf Of Themselves and Ndera Community) v National Land Commission & 6 others; The County Government Of Tana River (Interested Party) (Petition 10 of 2021) [2026] KEELC 4273 (KLR) (1 July 2026) (Ruling) Neutral citation: [2026] KEELC 4273 (KLR) Republic of Kenya In the Environment and Land Court at Malindi Petition 10 of 2021 EK Makori, J July 1, 2026 Between Ali Hero Buya & Others [Suing On Behalf Of Themselves and Ndera Community] Petitioner and The National Land Commission 1st Respondent The Chief Land Registrar 2nd Respondent Ida-Sa Godana Ranch Cooperative Society Limited 3rd Respondent Kenya Electricity Transmission Company Limited (KETRACO) 4th Respondent Kurwitu Ventures Limited 5th Respondent The Attorney General 6th Respondent and The County Government of Tana River Interested Party and The County Government Of Tana River Interested Party Ruling 1.Two motions are pending before this court for determination. The motion dated October 3, 2025, by the 3rd Respondent seeks, inter alia, a stay of execution of the judgment delivered on December 3, 2024; an extension of time to obtain and file the National Land Commission (NLC) investigative report as directed by this Honorable Court; and, ultimately, review of the said judgment upon receipt of the report. 2.The second motion by the Petitioners and the Interested Party, dated October 28, 2025, seeks orders vesting Plot No. 13597/1 in the County Government of Tana River to hold in trust for the Ndera community, and the release of monies for the partial loss of the suit property to the advocate for the Petitioners and the Interested Party to hold in trust for the Petitioners pending execution of the orders emanating from the judgment of this Court dated December 3, 2024. 3.Parties were directed to file written submissions concerning the two applications. 4.Counsel for the parties complied. I acknowledge receipt of submissions from counsel for the Petitioners and the Interested Party, and from counsel for the 3rd respondent, with much appreciation, as they went a long way to assist the Court in reaching its verdict. 5.Based on the materials placed before me, the issues I frame for the decision of this Court are whether I should extend the time to receive an investigative report from the 1st respondent concerning the suit property and, accordingly, review the judgment delivered on December 3, 2024, giving effect to that report (1st application); whether to give effect to the judgment of this Court (2nd application); and who should bear the costs of the two motions. 6.The decision of this Court is reported as Buya & 200 others (Suing on Behalf of Ndera Community, Tana River County, and Themselves) v National Land Commission & 5 others; County Government of Tana River (Interested Party) [2024] KEELC 13497 (KLR). 7.The notable findings of this Court are summarized by Kenya Law as follows:a.A declaration be and is hereby issued that the new lease of 99 years, an extension of the 1970, 1981 lease as renewed in 2018 to benefit the 3rd Respondent, is hereby declared null and void ab initio as ineffective in conferring title to the 3rd Respondent proprietary rights.b.The 1st Respondent's issuance and/or renewal of the lease in 2018 to the 3rd Respondent was in contravention of Article 1 (1),10(2),61(1), 62(4), and Section 12 of the Land Act, as representing continuing historical land injustice against the Petitioners herein.c.Pursuant to, and in the spirit of Article 23(3) of the Constitution, an order be and is hereby issued in the form of a structural interdict/ continuing mandamus compelling/directing the 1st Respondent, within 6 months hereof to initiate investigations, on the complaint raised in this petition by the Petitioners, into historical land injustices occasioned by allocation and extension of the lease issued to the 3rd Respondent in 1970 extended in 1981 and renewed in 2018, over Land known as Plot L.R. No. 13597/1.d.This will be conducted in consultation with the National Government and the County Government of Tana River. The investigations should specifically address the following:i.The continuing historical injustice claim raised by the petitioners and the manner of redress.ii.Whether allocation and lease of Plot LR No. 13597/1 deprived the Petitioners of ancestral/Community land.iii.Recommend redress, considering under Article 10(2)(b) of the Constitution on the doctrine of equity on the 3rd Respondent’s legit expectation of the lease extension/renewal.e.The measures proposed above are in recognition of Article 159(2)(c), 67(2)(f), and Section 20 of the ELC Act on Alternative Dispute Resolution Mechanisms. f.f.A permanent injunction be and is hereby issued against the 3rd and 5th Respondents, anyone acting under them, restraining them from dealing with the suit property in any manner that will change the substratum of the suit property - Plot LR No. 13597/1 until the investigations and recommendations proposed are completed.g.Based on public interest, the injunctive order in place against the 4th Respondent be and is hereby lifted on the disputed property as the same pertains to development and is contrary to the public good.h.However, the sum of Kshs. 25,890,620/, along with accrued interest for limited loss of land use and the wayleave affecting the disputed property, will remain unpaid and be banked in an escrow account to be held by the Interested party in trust for the people of Tana River County until the investigations and recommendations by the 1st Respondent are finalized and the beneficiaries established.i.The prayer for compensation to the Kenyan people on behalf of the Ndera Community for the unauthorized mining activities and an order for environmental restoration is denied as it was not substantiated.j.As the law abhors a vacuum after six months, hereof, a report should be filed before this Court for implementation and/or further orders from this Court.k.Judgment and Orders herein be served on the NLC for compliance.l.Judgment and orders herein be served on the Clerk of the National Assembly to fast-track the Owen Baya Bill.m.As the petition is partially successful and takes a reconciliatory tone, each party shall bear its costs. 8.In their submission in support of the application for extension of time, the 3rd Respondent contends that the NLC has a report that the time within which the report is to be filed has lapsed, and that it is in the interests of justice that the orders sought be allowed so that the report be considered. The 3rd Respondent further contends that they are interested in the report, as it will determine the rights of all the parties in the petition, and that the 1st Respondent supports the application. 9.In opposition to the 3rd Respondent's application and in support of their application, the Petitioners and the Interested Party aver that the 3rd Respondent is not candid with the Court because no report was ever prepared by the 1st Respondent, that the former counsel for the 3rd Respondent instead preferred an appeal, and that the Court of Appeal has already given directions on the disposal of the appeal before it. The Petitioners and the Interested Party instead implore the Court to implement the judgment in terms of their application, given that the period granted to the 1st Respondent to carry out investigations has lapsed. 10.On its part, and in support of the extension of time within which the 1st Respondent is to carry out investigations concerning the suit property as directed by this Court, Brian Ikol, Director of Legal Affairs and Dispute Resolution for the 1st Respondent, swore a replying affidavit dated 10th February 2026 and averred that the Commission is aware of the Judgment delivered by this Honorable Court on 3rd December 2024, which, inter alia, nullified the 3rd Respondent's leasehold interest in the Land known as Plot L.R. No. 13597/1 (the 'suit property") and directed the Commission to investigate alleged historical injustices and file a report within six (6) months. 11.Pursuant to the said Judgment, the Commission commenced preparatory steps for the investigation. However, in or around August 2025, a meeting was convened among counsel for the Petitioner, the 3rd Respondent, and the Commission, at which it was acknowledged and agreed that the Commission had been granted only six (6) months to investigate the rights and interests in the suit land. 12.The Commission was unable to conclude the case due to a heavy backlog. In addition, the terms of the Commissioners of the National Land Commission ended on November 15, 2025. As a result, the Commission had only 2 commissioners. It was therefore unable to undertake substantive functions, such as conducting investigations, making recommendations, or preparing reports on historical land injustices, as directed by the Court. 13.He further averred that without the full complement of Commissioners in office, the Commission lacked the quorum and authority to deliberate on or approve any investigative report regarding the suit property. The Commissioners can gather information through a ground visit and hearings to make a decision upon assuming office. 14.He concluded that it is in the interests of justice for the Court to grant a further 6-month extension to allow the case to be heard upon the appointment of new Commissioners. The hearing would allow both parties to present their cases and the Commission to make a determination based on the evidence in the record. 15.In its judgment dated December 3, 2024, recognizing that this matter involved historical land injustice, the Court, in paragraphs 154 to 158, held as follows:“In this judgment, the court decided on the issue of jurisdiction, which I need to revisit before I conclude. The Preliminary Objection herein raised the issue of the doctrine of abstention or the exhaustion doctrine – that the 1st respondent, the NLC, better handled the issues raised herein. I found that the NLC had already opposed this petition. However, in Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) (Petition E007 of 2023) [2023] KESC 113 (KLR) (28 December 2023) (Judgment), the Supreme Court has recently pronounced itself that parties should not be limited in access to justice whenever they seek to ventilate their matters - the only catch is - that the forum in which they seek redress is efficacious and adequate and that the doctrine of abstention/exhaustion is applied by the courts where there exists such primary forum:“It is this provision that generously allocates the appellant herein the right to file his constitutional petition before the ELC, and looking at the orders that the appellant had set out in his constitutional petition, it is evident to us without much effort that, the remedies of appealing to NEMA and EPRA, respectively, are not efficacious and adequate. Under EMCA, Section 129 provides for matters that may require determination by NET. They are all related to licenses and not constitutional violations, as is the case in the present dispute. The fact that licenses may well be a part of the appellant’s petition does not in any way outlaw the hearing and determination of it by ELC. 119.Similarly, in respect of the Energy Act, section 106 of the Act provides that appeals to the EPT from decisions by EPRA shall be in relation to issues relating to licensing while Section 25 generally grants jurisdiction to the EPT to hear and determine disputes and appeals in accordance with the Act or any other written law. Determination of allegations of constitutional violations cannot be such issues as to attract the Tribunal’s attention. 120.In addition to the above findings, since the appellant’s claim is multifaceted, by his own choice, the most appropriate forum for the determination of his petition was the ELC, which would then interrogate and determine them based on such facts and law as shall be placed before it. The superior courts, therefore, clearly fell into an error by finding that the appellant had not demonstrated that he would not have received efficacious relief if he had followed the dispute resolution process outlined in the Energy Act. We say so because though the claims against the 2nd and 3rd respondents are intertwined and arise from the same series of events, it would have been impractical to expect the appellant to appeal the decisions of both NEMA and KPLC before two different tribunals.” 155.In the Matter of the National Land Commission [2015] eKLR, the apex Court held as follows on the role of NLC in historical injustice cases article 67 (2) (e):“(313)In the course of rendering this Advisory Opinion, we have considered the mandates of the NLC as set out in the Constitution [article 67(2) (d), (e) and (f)]. These are conducting research on land issues and on natural resources—with appropriate recommendations to certain agencies; initiating inquiries into historical land grievances—and recommending courses of redress; promoting traditional methods of resolving land conflict.(314)From those provisions, it is clear to us that the NLC bears a brains-trust mandate in relation to land grievances, with functions that are in nature consultative, advisory, and safeguard-oriented. As regards such functions, the NLC, on the basis of clearly-formulated statutes, should be able to design a clearly-structured agenda for regular operations and, inter alia, should seek to devise a well-focused safeguard-mandate in relation to land issues.” 156.The prayers sought by the petitioners include – injunction, declaratory, award of damages, and prerogative orders. Some of the acts complained of in this petition will require investigations. This Court notes that the evidence tendered through affidavits was insufficient, for instance, to determine the initial allocation processes from 1970. The 1st respondent will need to probe, investigate, and make recommendations in a less adversarial environment, addressing the issue of good neighborliness and societal cohesion to avoid a winner-take-all scenario. I will also note that the issues raised in this petition will need consultations between the two levels of government, the national government and the county government of Tana River. 157.Besides, the land-allocating authority is the executive and not the judiciary; some of the orders sought, like the cancellation of the lease and the registration of the petitioners as proprietors of the suit property, cannot be bypassed by this Court under the provisions of the Constitution, the Land Act, and the Community Land Act, which have enacted an elaborate process of determining and allocating land and registering Community land as well. 158.The judiciary advocates for Alternative Justice Resolution Mechanisms (AJS)under article 159(2)(c) of the Constitution; this is also provided under Section 20 of the ELC Act, which I have stated above. In the same measure, article 67(2)(f) provides that in exercising its mandate, NLC shall deploy traditionally known dispute resolution mechanisms, among other mechanisms, in resolving disputes. In this case, the elaborate Traditional Dispute Resolution Mechanism deployed by the people of Tana River County will be beneficial. Consequently, in my final measures in the disposal of this petition, other than declarations and prerogative orders, the court can direct the balance of the grievances to be addressed by the most efficacious and adequate forum to redress the issues raised - the 1st respondent - the NLC. I know that the NLC mandate to redress historical land injustice claims lapsed, but that did not remove the provisions of article 67(2)(e) of the Constitution. As held by the Supreme Court in the Matter of the National Land Commission [2015] eKLR: “the NLC bears a brains-trust mandate in relation to land grievances, with functions that are in nature consultative, advisory, and safeguard-oriented.” 16.The crafted orders issued by this Court encompassed those in the form of structural interdicts (continuing mandamus), grounded in Article 23 of the Constitution of Kenya. This article empowers the High Court to formulate appropriate relief and innovative remedies to enforce the Bill of Rights, including socio-economic rights under Article 43. Furthermore, it requires the Court to maintain jurisdiction even after the judgment has been delivered. 17.Therefore, a review of this Court's original orders regarding the 3rd Respondent's application is unnecessary. What is needed is an extension of the time within which to comply. 18.I reckon the averment by the 1st Respondent. I take judicial notice that in the latter half of last year, the terms of the NLC Commissioners came to an end, and recruitment of new Commissioners commenced. I also take judicial notice that legal action was instituted regarding the hiring of the new Commissioners, which slowed the process. Therefore, the initial 6 months given by this Court to the 1st Respondent to conduct investigations into the aspect of historical injustice raised by the Petitioners were not enough – in fact, the Commissioners were on their way out and could not possibly undertake the exercise – investigations obviously require time, particularly when the subject at hand is historical land injustice. 19.Given that the NLC is now fully constituted following the swearing in of the new Commissioners on March 23, 2026, and that the interests of the Petitioners (in their application dated October 28, 2025) and those of the 3rd Respondent (in their application dated October 3, 2025) are balanced, as are the grievances raised by the 1st Respondent, the following final orders will be made with respect to the two applications:a.I reiterate the final Orders of this Court issued on 3rd December 2024.b.A further 6-month extension from the date of this ruling is granted to the NLC to comply with this Court's judgment dated December 3, 2024.c.That the Investigative Report and Recommendations by the NLC concerning the gravamen outlined in the judgment of this Court dated December 3, 2024, be filed on or before January 18, 2027.d.This ruling and the Court's judgment dated 3rd December 2024 shall be served on the 1st Respondent for compliance.e.That failure to meet the aforesaid deadline, the prayers sought by the Petitioners and the Interested Party in their application dated October 28 2025, are to take effect from January 18, 2027.f.Each party shall bear its own costs in connection with the two applications. DATED, SIGNED, AND DELIVERED VIRTUALLY IN NYERI ON THIS 1ST DAY OF JULY 2026.E. K. MAKORIJUDGEIn the Presence of:Mr. Muga for the Petitioners and the Interested PartyMs. Ochieng for the 3rd RespondentsMs. Mboya for the 4th RespondentDenis - Court AssistantIn the absence of:Mr. Kiilu for the 1st Respondent