Mkuki Ranch sues NLC for allocating land despite pending lease renewal

A ranching company has sued the National Land Commission (NLC) accusing it of allocating 2,454 hectares of land in Taita Taveta county, yet it filed an application for the renewal of lease.

Mkuki Ranch Ltd says that it recently discovered that, contrary to its legitimate expectation and without any notice, NLC purported to allocate the land to Chawuse Community, a private non-profit organisation.

According to the company, prior to the expiry of the lease, it duly applied for the renewal (of the lease), having complied with requirements governing renewal of leases over public land.

Mkuki Ranch Ltd says it was lawfully allotted the land on January 1, 1975, where it took possession and has since then continuously occupied, developed, and utilized it for ranching and agricultural related activities.

It says that the lease over the land was issued for a fixed term and was due to expire on 31^st December 2019, subject to renewal in accordance with the Land Act and the Land Registration Act.

The petitioner (Mkuki Ranch Ltd) says that it submitted all requisite documents, paid all necessary fees, and responded to all inquiries made by NLC in relation to the renewal application.

Apart from NLC and Chawuse Community, the petitioner has also sued the Chief Land Registrar and the Attorney General. It has named Jackcreek Enterprises Ltd and County Government of Taita Taveta as interested parties.

Mkuki Ranch Ltd is seeking a declaration that it is the lawful and registered proprietor of land and that NLC has no authority to reallocate, alienate or deal with it without notifying, consulting, and according it (petitioner) its statutory and constitutional rights.

It also wants a declaration that NLC’s unlawful allocation of the land to Chawuse Community and the resulting occupation amount to an unlawful invasion of its proprietary rights and a continuing violation of the constitution.

Mkuki Ranch Ltd says that despite compliance, NLC failed, refused, and neglected to process the renewal application or communicate any decision to it.

“Section 13 of the Land Act regulates and protects the lessee’s pre‑emptive right to be considered for renewal or reallocation of the land upon expiry of the lease,” part of the petition filed at the Environment and Land Court in Mombasa, states.

The ranching company argues that NLC was under a statutory and constitutional obligation to consider its application for renewal of the lease in a lawful, fair, transparent and accountable manner.

Mkuki Ranch Ltd says that NLC was also obligated to notify it of any decision made regarding the renewal application, including reasons for approval, rejection, or deferment.

“Under the Land Act Rules, where a lessee does not respond to a renewal notification within one year, NLC was required to publish the notification in a newspaper of nationwide circulation. No such publication was ever made in respect of the petitioner,” argues Mkuki Ranch Ltd.

Mkuki Ranch Ltd argues that NLC’s failure to communicate any decision or issue notification demonstrates that no lawful administrative process was undertaken regarding its renewal application.

It also argues that NLC did not notify it of any intention to allocate the land to any other person, nor did it invite it to make representations as required under the constitution.

“The respondent (NLC) did not furnish the petitioner with any reasons for its failure to renew the lease or for its decision to allocate the land to the second respondent (Chawuse community),” argues Mkuki Ranch Ltd.

Mkuki Ranch Ltd says NLC actions were undertaken in secrecy, without transparency, and in violation of its constitutional rights to property, fair administrative action, and legitimate expectation.

It says that the purported allocation of the land to Chawuse Community was done while its (Mkuki Ranch Ltd’s) renewal application was still pending and without any lawful basis for disregarding its pre‑emptive rights.

According to Mkuki Ranch Ltd, NLC’s conduct amounts to an unlawful deprivation of property contrary to Article 40 of the constitution.

Mkuki Ranch Ltd says that it entered into a Joint Venture Agreement with Jackcreek Enterprises Limited on September 20, 2019, for purposes of conducting mining and related commercial activities on the land.

The petitioner further says that pursuant to the Joint Venture Agreement, the Jackcreek Enterprises Ltd has invested substantial financial resources, machinery, personnel, and technical expertise into the mining operations undertaken jointly (with the petitioner).

“Jackcreek Enterprises Ltd’s ongoing mining operations depend entirely on the petitioner’s peaceful possession and control of the land,” says Mkuki Ranch Ltd.

Mkuki Ranch Ltd also claims that NLC’s unlawful actions place it and Jackcreek Enterprises Ltd at imminent risk of eviction, dispossession and loss of their long‑standing proprietary interests.

The petitioner also wants a declaration that NLC’s purported allocation of the land to Chawuse Community is unlawful, null and void, and in blatant disregard of the subsisting Joint Venture Agreement between itself and Jackcreek Enterprises Ltd under which active mining operations are being undertaken on the land.

It also wants an order compelling NLC to consider and regularize the allocation of the land in its favour and directing the Chief Land Registrar to issue a new title in the petitioner’s name within 30 days in recognition of its (petitioner’s) pre‑emptive right to renewal and allocation.

The petitioner also wants the court to issue an order quashing NLC’s unlawful and irregular reallocation, allocation, or purported disposition of the land to Chawuse Community together with any consequential decisions, actions, or entries arising.

The case will be heard on April 16.