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ELCDismissedConstitutional Petition (Environment and Land Court, Eldoret) - number not stated in judgment· [2013] KEELC 139 (KLR)

Mohammed Said v County Council Of Nandi [2013] KEELC 139 (KLR)

Environment and Land Court
11 July 2013
MSMunyao Sila
3,726 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court can hear any constitutional petition about land, not just environmental rights claims, so file land disputes there.

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) determines a preliminary objection by the 2nd respondent, Mathew Kenduiywo, in a constitutional petition by Mohammed Said against the County Council of Nandi and the 2nd respondent. The petitioner alleged that Plot No. 56 (unregistered) at Kaptumo Trading Centre, on which his ancestral home stands, was allotted to the 2nd respondent in 1985 without involvement of the Kaptumo Centre Committee, without affording him an opportunity to own it, and without compensation, breaching his rights to shelter, property, equality and fair administrative action. He sought declaratory orders, cancellation of the allocation, a permanent injunction against eviction, and an opportunity to own the plot. The preliminary objection raised three grounds: that the petition relied on provisions of the repealed former Constitution and the repealed Registered Land Act, and that the court lacked jurisdiction because the petition was premised on Articles 27, 40, 43 and 47 rather than Articles 42, 69 and 70 of the Constitution. Relying on Omar Tahir Said v Registrar of Titles and, by analogy, USIU v Attorney General, the court held that Section 13(3) of the Environment and Land Court Act does not restrict the court to environmental-rights petitions; the court may hear any constitutional petition relating to environment and land, and the High Court is ousted by Article 165(5). The court further held that accrued rights under the former Constitution and repealed statutes survive. The preliminary objection was dismissed with no orders as to costs; the petition itself proceeds to full hearing.

Key legal issues

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01

Scope of the Environment and Land Court's jurisdiction over constitutional petitions

Holding

Section 13(3) of the Environment and Land Court Act does not restrict the court to Articles 42, 69 and 70; it emphasises jurisdiction over environmental rights but does not preclude petitions under other Articles so long as the matter concerns land and environment.

Reasoning

The court construed Section 13 of the Environment and Land Court Act. Section 13(1) confers general original and appellate jurisdiction over all disputes under Article 162(2)(b) relating to environment and land. Section 13(3) is not exclusive but emphatic that environmental rights claims are not precluded. Adopting the reasoning in Omar Tahir Said and USIU v Attorney General, the court held that enforcement of fundamental rights and constitutional interpretation is incidental to the specialist court's domain.

p. 6
02

Competence of petition premised on repealed former Constitution and repealed Registered Land Act (CAP 300)

Holding

The petition is not incompetent; accrued rights survive repeal unless contrary transitional provisions exist, and counsel cited no precluding provision.

Reasoning

Counsel for the 2nd respondent argued grounds 1 and 2 of the objection on the basis that the petition relied on extinct constitutional provisions and repealed land legislation. The court held that rights accrued under prior regimes are not obliterated by the new constitutional order, subject to transitional provisions, and no authority was cited to the contrary. These grounds also failed.

p. 7

Legal principles established

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  • The Environment and Land Court has jurisdiction to hear constitutional petitions grounded on any provisions of the Constitution, so long as the dispute relates to environment and land; it is not confined to Articles 42, 69 and 70.
  • The High Court has no jurisdiction over matters falling within the jurisdiction of the Environment and Land Court or the Industrial Court, even where filed as constitutional petitions.
  • Rights accrued under the former Constitution and repealed statutes are not obliterated by promulgation of a new constitution absent contrary transitional provisions.

Court orders

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  1. 1.The preliminary objection of the 2nd respondent is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23, 27, 40, 41, 42, 43, 47, 69, 70, 159(2)(d), 162(1), 162(2)(b), 162(3), 162(4), 165(3)(d), 165(5); Chapter 4
  • The Independence Constitution (former Constitution)Sections 75, 84 and 115
  • Environment and Land Court Act, Act No. 19 of 2011Sections 4, 13(1), (2), (3), (4), (5), (6), (7)
  • Registered Land Act (CAP 300) Laws of Kenya (repealed)not specified
  • Land Registration Act, Act No. 3 of 2012not specified
  • Land Act, Act No. 6 of 2012not specified
  • Local Government Actnot specified
  • Industrial Court Act, 2011Section 12

Cases cited (2)

  • 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
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, Act No. 19 of 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (18)

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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, "Mohammed Said v County Council Of Nandi [2013] KEELC 139 (KLR)", Case Analysis (2013). Constitutional Petition (Environment and Land Court, Eldoret) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/139/eng@2013-07-11

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