Courts orders IEBC and State to place beacons in all 47 counties

Environment and Land Court judge Lucas Leperes Naikuni (third right) during a site visit at a site over disputed construction of an 18-flats building at Kizingo in Mombasa County on Monday 14th November 2022. The complainants in the matter claim that the buyer of the said plot who is the respondent in the matter in court wants to construct a building against the County bylaws, claiming the area Is of low density thus one cannot construct a building with more than two floors. [Kelvin Karani, Standard]

The High Court has ordered the Independent, Electoral and Boundaries Commission and the government to erect visible beacons demarcating boundaries of all 47 counties.

Mombasa Environment and Land Court Judge Lucas Naikuni ordered the IEBC and the National Executive to undertake intensive land survey in all counties.

“The demarcation should be in accordance with the newly legislated law and the amended Districts and Provinces Act of 1992,” he ordered.

The judge also directed Parliament to enact appropriate legislation and establish the IEBC, to resolve simmering boundary disputes affecting the 47 counties, within 12 months.

According to Naikuni, several disputes have erupted over boundaries. He noted that the Constitution neither has provisions setting out the boundaries of the counties nor does it make reference to any other law.

“It is instructive to note that since promulgation of the Constitution, there have been multiple disputes between various counties on boundaries,” said Naikuni.

He further noted that the disputes include historical injustices, double taxation, lack of accountability, and violation of people’s rights.

“This court cannot fold its hands, particularly in the current constitutional dispensation. It will therefore fashion appropriate orders to resolve the boundary disputes in question,” he ruled.

He urged the National Assembly to hasten legislation on boundary issues, noting that several Bills have been tabled before the Senate on County Boundaries. He said if the matter is not addressed, counties will continue to suffer.

The judge ruled in a constitutional petition by Busia Senator Okiya Omtatah, on behalf of 178 residents of Taita Taveta County.

Omtatah wanted the court to intervene in a boundary dispute between Taita Taveta and Kwale counties over the location of Mackinnon Road Town and Taita Taveta and Makueni counties over the location of Mtito Adei town.

He sued Parliament, the National Executive, and the Attorney General as respondents. He listed the three counties and the Ministry of Lands and Physical Planning as interested parties.

Following the petition, the court ordered the demarcation of the boundaries in the three counties to end wars at the disputed towns, as prescribed in the current legislation, the Districts and Provinces Act of 1992.

“The demarcation should also conform to the Second Schedule of the Act as outlined in the comprehensive Land Survey Report by the National Land Commission (NLC) dated July 23, 2024,” he directed.

The court noted that Omtatah’s petition was unique and it raised weighty matters of great public interest and importance.

Naikuni also directed the three counties to strictly issue permits and levy taxes within their respective boundaries as demarcated.

Further, he ordered the Finance CECMs of the counties to jointly file a statement, stating the amount of money collected within 90 days.

The court directed that there be a mention of the matter on March 13, 2025 and to ascertain compliance of these directions, receive progress made and for other incidental occurrences and any further directions.

“This will ensure residents of Mackinnon Road Town and Mtito Andei town are not subjected to double taxation; the boundaries having been demarcated,” said the judge.

Omtatah said he received a letter from the residents of Taita Taveta on July 12, 2021, to intervene and find a solution to the boundary disputes that had allegedly simmered since 1961. He submitted that the counties took advantage of the boundary disputes to compete for administration and resources leading to double taxation and violating the residents’ proprietary rights.

Court records show a boundary dispute at Mackinnon Road Town arose in 1961 when the colonial District Commissioner Taita Taveta purported to transfer the whole town to Kwale without any consultation with the residents.

The documents show the residents protested the transfer, the same was reversed but the gazette notice transferring the town was never de-gazetted.

“As a result, the people of Taita Taveta were evicted from their lands to pave the way for the construction of schools, churches, and military barracks,” read the documents.

The case will be mentioned on February 25, 2025,