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ELCStruck OutNot stated in the judgment (Environment & Land Court petition filed 19th June 2013)· [2013] KEELC 63 (KLR)

Kipsiwo Community Self Help Group v Attorney General & 6 others (Environment and Land Case 9 of 2013) [2013] KEELC 63 (KLR)

Environment and Land Court
8 October 2013
MSMunyao Sila
6,779 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~27 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a squatters' land petition because a self-help group cannot sue, though it confirmed courts can hear historical land injustice claims.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (Munyao Sila J, 8 October 2013) determined two preliminary objections to a constitutional petition filed by Kipsiwo Community Self Help Group, squatters at ADC Kimwani Farm, alleging historical land injustices in respect of L.R No. 10703/2 in Nandi County and seeking declarations, cancellation of the title issued to Cador Investments Ltd, and damages. On jurisdiction, the court held that the ELC can hear any constitutional petition so long as it touches on the environment and the use, occupation of, and title to land; its jurisdiction is not confined to petitions alleging violations of Articles 42, 69 and 70. The court further held that the National Land Commission's mandate under Article 67(2)(e) to investigate historical land injustices does not oust the court's jurisdiction; a petition founded on historical injustice is competent provided the petitioner cites with precision the constitutional right or provision violated. On capacity, however, the court held that a self-help group is an unincorporated body without legal personality which cannot sue in its own name; proceedings had to be instituted by persons recognized in law, in their own names or in a representative capacity with authority demonstrated. Since the true beneficiaries of the petition could not be identified with precision and no substitution application had been made, the defect was not curable by amendment. The petition was struck out and dismissed with no orders as to costs, and all interim orders were vacated.

Key legal issues

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01

Jurisdiction of the ELC to hear constitutional petitions

Holding

The ELC has jurisdiction to hear any constitutional petition concerning land and environment, not only those alleging violations of Articles 42, 69 and 70

Reasoning

Article 162(2)(b) and Section 13 of the ELC Act confer jurisdiction over all disputes relating to environment and land. Section 13(3) is not restrictive but additional. The manner of commencing the suit (plaint, petition, judicial review) is immaterial; substantive jurisdiction lies with the ELC.

p. 7
02

Whether historical land injustices are exclusively for the NLC

Holding

The NLC's investigatory mandate does not oust the court's jurisdiction; a petition founded on historical injustice is competent if a constitutional provision or right is cited with precision

Reasoning

Neither the Constitution nor the NLC Act gives the NLC a monopoly over historical injustices. The source of the complaint is immaterial so long as the petitioner cites with precision the constitutional right or provision violated and seeks a lawful remedy.

p. 9
03

Capacity of a self-help group to sue

Holding

A self-help group is an unincorporated body without legal personality and cannot institute proceedings in its own name

Reasoning

Article 260 defines 'person' to include unincorporated associations, but Article 22 permitting such bodies to institute proceedings does not vest them with legal capacity. Members must sue in their own names or through a representative action with authority demonstrated. Here the true beneficiaries were not identified with precision, making enforcement of any orders impossible.

p. 11
04

Whether the defective petition could be amended

Holding

The petition could not be cured by amendment because the persons intended to benefit were not identified and no substitution application was made

Reasoning

Although Rules 18 and 5 of the Mutunga Rules permit amendment and substitution, the court could not know with whom to substitute the petitioner. Following precedent where suits by unincorporated bodies were struck out, the defect being one of substance and law, the petition had to be struck out.

p. 13

Legal principles established

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  • The ELC can hear any constitutional petition so long as the matter relates to the environment and the use and occupation of, and title to, land; its jurisdiction is not restricted to Articles 42, 69 and 70
  • A constitutional petition founded on historical land injustice is competent; the NLC's mandate under Article 67(2)(e) does not oust the court's jurisdiction
  • Unincorporated entities such as self-help groups have no legal capacity and cannot sue in their own names; they must sue through persons with legal capacity or in a representative capacity

Court orders

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  1. 1.The petition is struck out and dismissed as having been filed by an entity unknown in law with no capacity to institute action in its own name
  2. 2.No orders as to costs
  3. 3.All interim orders vacated upon dismissal of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 19, 20, 21, 22, 23, 27, 35, 40, 42, 47, 67, 69, 70, 73, 159(2)(d), 162(2)(b), 165, 258, 260
  • Environment and Land Court ActSection 3, Section 13
  • National Land Commission ActSection 5
  • Societies ActSection 9
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 5, Rule 18

Cases cited (8)

  • Mohamed Said v County Council of Nandi
    Eldoret E&L Case No. 2 of 2013, (2013) eKLR
  • Omar Tahir Said vs Registrar of Titles & Another
    Mombasa High Court Petition No. 22 of 2012, (2013) eKLR
  • United States International University (USIU) vs Attorney General
    Nairobi High Court Petition No. 170 of 2012 (2012) eKLR
  • Kituo Cha Sheria vs John Ndirangu Kariuki & Another
    Nairobi Election Petition No. 8 of 2013, (2013) eKLR
  • Law Society of Kenya vs Commissioner of Lands & 2 Others
    KLR 1 (E&L) 456
  • Dennis Ololoigero & 2 Others vs The Art of Ventures Limited & 2 Others
    Nairobi HCCC 1358 of 2005 (2006) eKLR
  • Free Pentecostal Fellowship in Kenya vs Kenya Commercial Bank
    (1992) KLR 354
  • St. Mary School, Nairobi vs Josphat Gitonga Kabugi
    Nairobi (Milimani) HCCC No. 65 of 2004
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Kipsiwo Community Self Help Group v Attorney General & 6 others (Environment and Land Case 9 of 2013) [2013] KEELC 63 (KLR)", Case Analysis (2013). Not stated in the judgment (Environment & Land Court petition filed 19th June 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/63/eng@2013-10-08

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