The Environment and Land Court in Narok has dismissed a petition challenging the leasing of community land to a private company.
Nchorira Naikuni, a member of the Purko Community and the Purko Development Trust General Assembly, had filed the petition against the chairman of the Board of Trustees, the chief executive officer, the Purko Development Trust and Freshcrop Limited.
Naikuni alleged that the respondents unlawfully started the process of leasing about 500 acres of community land known as CIS-MARA/ENTIANI/1 without obtaining approval from the general assembly, public participation or the informed consent of the community.
“The petitioner further contends that the intended lease contravened Article 227, of the constitution and the Public Procurement and Asset Disposal Act, as the procurement process was neither fair, equitable, transparent nor competitive,” court documents show.
“He further alleged that no valuation of the land was undertaken to determine the suitability and legality of the proposed transaction.”
The petitioner sought declarations that the respondents' actions were unconstitutional, illegal, null and void, an order cancelling any agreement or lease between the respondents, a permanent injunction restraining further interference with the land and general damages for constitutional violations.
Naikuni argued that community land is protected under Article 63 and is held by the Purko Development Trust for the benefit of the community.
He further argued that the Purko Development Trust Deed requires approval from the trust's general assembly for major investment or leasing decisions.
He alleged that the board and chairman acted beyond their legal powers by advertising and awarding the lease to Freshcrop Limited without the approval.
He further alleged that the respondents failed to conduct adequate consultations, despite knowing that many members of the community were illiterate, and that the tendering process contravened the Public Procurement and Asset Disposal Act by lacking competitiveness, transparency and fairness.
The respondents contended that the petition failed to disclose any constitutional violation warranting the court's intervention.
Freshcrop Limited opposed the petition through a replying affidavit sworn by its director, Gasperi Christopher.
The company argued that the lease of the suit property was undertaken lawfully and within the applicable legal framework governing land administration, following a competitive tender process duly approved by the board.
“Further, that the fourth respondent lawfully leased 207 acres and not 500 acres, of land known as CIS MARA/ENTIYANI/1, for a period of one year, leaving substantial acreage available for community use.”
The company also submitted that the petitioner had failed to produce proof that the land was formally registered or adjudicated as community land under the Community Land Act, making its approval procedures inapplicable.
The first and third respondents similarly submitted that the petitioner had failed to demonstrate how the cited constitutional provisions had been violated.
They maintained that the lease was undertaken transparently after public advertisement and competitive bidding in compliance with the Constitution, the Community Land Act and the Purko Development Trust Deed.
“Further, they maintained that the lease promoted the socioeconomic interests of the Purko community, that only a portion of the land had been leased and not disposed of and that the petitioner had failed to prove any breach of the Public Procurement and Asset Disposal Act or the trust deed.”
They also argued that the petitioner lacked authority from members of the Purko community to institute the petition on their behalf and therefore lacked the necessary capacity to maintain the proceedings.
In her judgment, Justice Lucy Gacheru found that the petitioner had failed to establish that the respondents acted outside the powers conferred upon them under the Purko Development Trust Deed.
On public participation, the judge said the petitioner had not placed before the court evidence demonstrating that community members were denied an opportunity to participate or that the consultations undertaken were constitutionally inadequate.
“Since no constitutional infringement has been proved in the present case, the claim for damages necessarily fails.”
The judge also found that the petitioner had failed to cite any provision in the Purko Development Trust Deed showing that the board lacked authority to grant the lease or that approval by the general assembly was mandatory.
The court further found that the trust had not been proved to be a public entity subject to the Public Procurement and Asset Disposal Act, meaning that conducting a tender process did not, by itself, make the Act applicable.
The court found that the petition was devoid of merit and dismissed it, with each party to bear its own costs.
The judge said that although the petition had not succeeded, it raised matters of genuine public interest concerning the management of land held for the benefit of members of the Purko community and the accountability of trustees administering community assets.
