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Court of AppealDismissedCivil Appeal No. 51 of 2015· [2016] KECA 413 (KLR)

Chimweli Jangaa Mangale & 3 others v Hamisi Mohamed Mwawasaa & 15 others [p [2016] KECA 413 (KLR)

Court of Appeal
15 July 2016
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
2,948 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that the Environment and Land Court can hear constitutional rights claims arising from land disputes, and dismissed the appeal with costs.

What this practically means

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Executive summary

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This was an interlocutory appeal against an order of the High Court at Mombasa (Emukule, J.) dated 30th April 2015 consolidating the appellants' Constitutional Petition No. 72 of 2014 with ELC Case No. 202 of 2012 and directing that both be heard by the Environment and Land Court. The petition alleged irregular allocation of L.R. No. 29853, Mariakani, to the 1st respondent and its sale to the 2nd-4th respondents, claiming violations of the rights to housing (Article 43(1)(b)), human dignity (Article 28) and fair administrative action (Article 47); the deponents stated the petition was aimed at acquiring title by adverse possession. The appellants contended that the judge misapplied the principles of consolidation, had no ELC file before him, denied parties a hearing, and that only the High Court could enforce Bill of Rights claims. The Court of Appeal unanimously dismissed the appeal. It held that the ELC, established under Article 162(2)(b) and conferred jurisdiction by section 13 of the Environment and Land Court Act, is a superior court of equal status with the High Court, and that it has jurisdiction to enforce fundamental rights where the alleged violations relate to land; Article 165(5) expressly ousts the High Court's jurisdiction over such matters. Relying on Mugendi, Shollei, Mutanga Coffee and Nyati Security Guards, the Court held that consolidation was proper: the same property and some common parties were involved, no prejudice was demonstrated, and consolidation served the overriding objective and Article 159(2)(b). The appeal was dismissed with costs to the respondents. The decision affirms that litigants must resort to the specialised forum the Constitution has created for land and environment disputes.

Key legal issues

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01

Jurisdiction of the ELC to enforce fundamental rights in land matters

Holding

The ELC, established under Article 162(2)(b), may entertain petitions alleging violation of rights where the violations relate to land and environment; the High Court's jurisdiction is excluded under Article 165(5) in such matters.

Reasoning

The court traced the constitutional establishment of the ELC and section 13 of the Environment and Land Court Act, and relied on Mugendi and JSC v Shollei, decided under the parallel Employment and Labour Relations Court, holding that the Constitution does not confine Bill of Rights enforcement exclusively to the High Court. The court rejected the appellants' submission that the ELC could not try constitutional issues.

p. 5
02

Correctness of the consolidation and transfer order

Holding

The High Court properly exercised its discretion in consolidating the petition and the suit, as the same property was in dispute, some parties were common, and no prejudice was shown.

Reasoning

The court applied the Nyati Security Guards principles on consolidation, the overriding objective, and Article 159(2)(b)'s demand for expeditious justice. It noted that hearing the same dispute between largely the same parties in two courts would entail unnecessary duplication of witnesses, costs and judicial time, and that Order 11 rule 3(1)(h) empowers consolidation in case management.

p. 6

Legal principles established

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  • The Environment and Land Court has jurisdiction to hear and determine applications for enforcement of fundamental rights where the alleged violations arise from or relate to land and environment matters; the High Court has no exclusive jurisdiction to enforce the Bill of Rights.
  • Where the Constitution creates a specific mechanism or court for redress of particular grievances, that mechanism must be resorted to.
  • Suits raising common questions of law or fact, involving the same subject matter and substantially the same parties, may be consolidated to save costs, time and judicial time in furtherance of the overriding objective and Article 159(2)(b).

Court orders

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  1. 1.Appeal dismissed with costs to the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 162(3)
  • Constitution of Kenya, 2010Article 165(5)
  • Constitution of Kenya, 2010Article 165(6)
  • Constitution of Kenya, 2010Article 43(1)(b)
  • Constitution of Kenya, 2010Article 47(1)
  • Constitution of Kenya, 2010Article 28
  • Constitution of Kenya, 2010Article 2(5)
  • Constitution of Kenya, 2010Article 42
  • Constitution of Kenya, 2010Article 69
  • Constitution of Kenya, 2010Article 70
  • Constitution of Kenya, 2010Article 159(2)(b)
  • Environment and Land Court ActSection 13(1), (2), (3)
  • Civil Procedure RulesOrder 11, rule 3(1)(h)

Cases cited (8)

  • Nyati Security Guards & Services Ltd v. Municipal Council of Mombasa
    HCCC No. 992 of 1994 (Mombasa)
  • Hangzhou Agrochemical Industries Ltd v. Panda Flowers Ltd
    HCCC No. 97 of 2009
  • Narok County Council v. Transmara County Council & Another
    CA No. 25 of 2000
  • Mutanga Coffee & Tea Company Ltd v. Shikara Ltd & Another
    CA No. 54 of 2014 (Malindi)
  • Karisa Chengo & 2 Others v. Republic
    Cr App Nos. 44, 45 and 76 of 2014 (Malindi)
  • Prof. Daniel N. Mugendi v. Kenyatta University & Others
    CA No. 6 of 2012
  • Judicial Service Commission v. Gladys Boss Shollei & Another
    CA No. 50 of 2014
  • Stumberg & Another v. Potgieter
    [1970] EA 323
On appeal from
High Court at Mombasa
Petition No. 72 of 2014 (Consolidated with ELC No. 202 of 2012)
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Constitution over interlocutory appeals from the High Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (14)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Chimweli Jangaa Mangale & 3 others v Hamisi Mohamed Mwawasaa & 15 others [p [2016] KECA 413 (KLR)", Case Analysis (2016). Civil Appeal No. 51 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/413/eng@2016-07-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.