The National Land Commission had the jurisdiction to determine inter-county boundary disputes.

Brief facts

The petition sought to compel the Parliament of Kenya to set up an independent commission to resolve the boundary dispute between the counties of Taita Taveta and Kwale  and between the counties Taita Taveta  and Makueni and the national government to survey and erect beacons to clearly demarcate the boundaries in issue. The petitioner averred that he received a letter from 178 residents of the County of Taita Taveta requesting him to intervene and help them find a solution to the protracted boundary disputes between the Counties of Taita Tavetta and Kwale on the one hand over Mackinnon Town and the Counties of Taita Tavetta and Makueni on the other over Mtito Andei Town which had been simmering for a long time since pre-independence days. The residents were the victim of harassment by the county officials of the three counties and were often subjected to double taxation.

Issues

1. Whether the Environment and Land Court had jurisdiction to address issues of inter-county boundary disputes.
2. What was the appropriate dispute resolution forum to address issues of inter-county boundary disputes?
3. Whether inter-county boundary disputes amounted to intergovernmental disputes and were to be subjected to the dispute resolution mechanisms under the Intergovernmental Relations Act.
4. Whether an inter-county boundary dispute fell under the delimitation of boundaries under article 189 of the Constitution which was a preserve of the Independent Electoral and Boundaries Commission.

Held

1. A preliminary objection could be brought at any time at least before the final conclusion of the case. It ought to be filed at the earliest opportunity of the subsistence of a case, in order to pave way for the smooth management and determination of the main dispute in a matter. The issues raised in the preliminary objection were serious and pure issues of law which the court was duty bound to critically venture to be heard and determined prior to setting down the case for full trial on its own merit. The issues were not fanciful nor remote. The objection raised by the respondents and the interested parties were properly filed.
2. The Constitution was to be interpreted in a manner that promoted its purposes, values and principles. The court had to give a liberal interpretation and consideration to any provision of the Constitution and have regard to the language and wording of the Constitution and where there was no ambiguity attempt to depart from the straight texts of the Constitution had to be avoided. The Constitution must always be interpreted and considered as a whole with all the provisions sustaining and coordinating each other and not destroying the other.
3. The petition pleaded with reasonable precision. The petitioners had dutifully complied and fully met the threshold of reasonable precision in pleadings for instituting the petition against the respondents and the interested parties.
4. Subject to sections 3, 33, 34(1) and 35 of the Intergovernmental Relations Act, Act no. 2 of 2012, where a dispute involved the government and county government from one level and county to county governments; the elaborate legislation did not make any provision where there existed a dispute between an individual and the county government or the vice versa as it was in the instant case.
5. The primary basic ingredient in an intergovernmental dispute was that it had to be between the national government and a county government; or amongst county governments. Both the petitioner and the 178 residents of the County of Taita Taveta claiming harassment by the county governments of Kwale and Makueni in Mackinon Road and Mtito Andei Town, respectively, did not have standing to invoke the dispute resolution mechanism under articles 189 (3) and (4) of the Constitution as read together with sections 30, 31, 32, 33, 34 and 35 of the Intergovernmental Relations Act.
6. If the dispute was one between the three County Governments of Taita Taveta, Makueni and Kwale, articles 189 (3) and (4) of the Constitution as read together with sections 30, 31, 32, 33, 34 and 35 of the Intergovernmental Relations Act would have been applicable. The petitioner and the 178 residents as individuals had no place to turn to for assistance. The more reason the legislature should have invoked and operationalized the provisions of article 261 (1) to (8) of the Constitution of Kenya in the enactment of such specific legislations to carter for such eventualities.
7. The moment a party in a suit challenged the jurisdiction of a court, anything else the court did from then onwards became a nullity. Once that happened, it was significant that that huddle was finally tackled first and foremost. That was because without jurisdiction the court had no mandate to make one more step. It had to down its tools.
8. The doctrine of exhaustion provided that a litigant ought to explore all other available mechanisms in dispute resolution before proceedings to the courts. Where there were clear procedures of redress of any particular grievance prescribed by the Constitution of statute, then the procedure should be strictly followed and adhered to. There were certain exceptions. The court needed to determine if that was a purely governmental or inter-governmental dispute meted between governments. That was not the case in the instant case. The dispute was by an individual - the petitioner and the 178 residents of the County of Taita Tavetta residing and carrying out their trades within the two towns and who were adversely and directly affected by the double taxation by the three county governments as stated above and not inter-governmental as envisaged by law.
9. Based on the provisions of article 162(2)(b) of the Constitution, sections 3 and 13 of the Environment and Land Court Act, sections 150 of the Land Registration Act, and section 101 of the Land Act conferred the instant court with unlimited and original jurisdiction to hear and determine on all matter pertaining to land and environment matters. There existed a boundary dispute between an individual and three county governments as result gross infringements, denial and violations of certain fundamental rights and freedoms under the Bill of Rights of individuals and hence the only redress attainable was before that court. The ELC was clothed with original and unlimited jurisdiction to hear and determine such a dispute. The suit was properly before the instant court and the objection that the court had no jurisdiction was dismissed.
10. Land and land related disputes remained very emotive issues. Land had for years been the primary basis of disputes leading to mass displacement and killings in the Country. The Constitution of Kenya, 2010 dedicated a whole chapter to address the issues of land.
11. The petitioner and the respondents had misunderstood the dispute in question, whereas the petitioner had placed the instant dispute under articles 129, 130 and 188 of the Constitution; the respondents on the other hand were placing it under articles 88, 89 and 188 of the Constitution. Article 188 of the Constitution dealt exclusively with the process of altering county boundaries and the issue at hand in the instant matter was demarcation and confirmation of boundaries which the matter did not fall under the purview of article 188 of the Constitution.
12. Purposive interpretation of the Constitution was to the effect that territorial county boundaries were fixed and could only be altered through the clear step provided by the Constitution in strict adherence to the provisions of article 188 of the Constitution. The National Executive had no role in altering or demarcating county boundaries while the Independent Electoral and Boundaries Commission could only delimit constituencies and wards and had no role or authority to alter or demarcate county boundaries. With promulgation of the Constitution, 2010 all the actions in this country were done as per the Constitution.
13. The boundary disputes afflicting the three Counties of Taita Tavetta, Kwale and Makueni and other spiral effects it had on the violation of the fundamental rights of the ordinarily residents of the area were essentially caused by the insurgencies of historical injustices within the area by the colonial leadership. Where there existed a proper and suitable alternative forum for resolving disputes then there was need to strictly adhere and present a dispute before such forum. However, in the instant petition the respondents were clearly mistaken on argument that the current dispute should be resolved as provided under the ambit of article 189(3) of the Constitution and the provisions of the Intergovernmental Relations Act.
14. Section 15 of the National Land Commission Act provided for historical land injustices that pursuant to article 67(3) of the Constitution, the Commission was to receive, admit and investigate all historical land injustice complaints and recommend appropriate redress. A historical land injustice meant a grievance which
    1. was occasioned by a violation of right in land on the basis of any law, policy, declaration, administrative practice, treaty or agreement;
    2. resulted in displacement from their habitual place of residence;
    3. occurred between June 15, 1895 when Kenya became a protectorate under the British East African Protectorate and August 27, 2010 when the Constitution of Kenya was promulgated; and
    4. had not been sufficiently resolved and subsisted up to the period specified above.
15. The three counties in having the disputed areas investigated, surveyed and beacons erected to clearly demarcate the boundaries in issue were best handled by the National Land Commission and make appropriate recommendations, ultimately resolving the boundary dispute would in turn provide clearly which county/ counties the residents of the towns Mackinnon Road Town and Mtito Andei should pay their taxes to.