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ELCPartially AllowedChamber Summons dated 2nd April 2016 (statutory statement and verifying affidavit dated 20th April 2016)· [2016] KEELC 511 (KLR)

Kellico Limited v National Land Commission & 3 others [2016] KEELC 511 (KLR)

Environment and Land Court
3 June 2016
SOS. Okong'o
5,306 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 confirmed it can hear judicial review challenges to compulsory land acquisition, granting leave but refusing to halt the acquisition inquiry.

What this practically means

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Executive summary

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This is a ruling on an ex parte applicant's chamber summons seeking leave to apply for judicial review orders of certiorari and prohibition against Gazette Notice No. 809 of 12th February 2016, by which the National Land Commission gave notice of intention to compulsorily acquire portions of the Applicant's properties (L.R Nos. 209/14096 and 209/14097 on Mombasa Road, Nairobi) for KeNHA's JKIA Turn-Off-Likoni Road Junction project. The Applicant complained that the project had not undergone environmental impact assessment and that NET had ordered the project stopped, yet the NLC was proceeding with the compulsory acquisition inquiry. KeNHA raised a preliminary objection challenging the ELC's supervisory and judicial review jurisdiction, compliance with the Land Act and Kenya Roads Act, and the Applicant's failure to annex the Gazette Notice. The court (Okong'o J) held that the ELC has jurisdiction to entertain judicial review in land and environment disputes under sections 13(1) and 13(7) of the ELC Act, that NET has no jurisdiction over compulsory acquisition disputes, and that the failure to annex the Gazette Notice was grave but curable under Order 53 rule 7(1). Applying the arguable case test, the court found the Applicant had an arguable case only on whether the NLC can acquire land for a project stopped by NET and lacking an EIA licence. Leave was granted in terms of prayers 2 and 3, but the prayer that leave operate as a stay was refused because the application would not be rendered nugatory. The judicial review application was to be filed within 21 days, with costs to abide its outcome.

Key legal issues

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01

Jurisdiction of the ELC to grant judicial review remedies

Holding

The ELC has jurisdiction to entertain judicial review applications in land and environment disputes; section 13(7) of the ELC Act confers power to grant prerogative orders and jurisdiction cannot be divorced from power to grant relief.

Reasoning

The court was established under Article 162(2)(b) of the Constitution and the ELC Act. Section 13(1) confers unlimited original and appellate jurisdiction over environment and land disputes, and section 13(7) empowers the court to grant prerogative orders. The deleted section 13(5) had conferred High Court supervisory powers over superior authorities and was properly deleted, but the deletion does not oust judicial review jurisdiction; otherwise there would be a vacuum since the High Court is barred by Article 165(5)(b).

p. 8
02

Whether the Applicant established an arguable case for leave

Holding

The Applicant has an arguable case only on the question whether the 1st Respondent can compulsorily acquire land for a project stopped by NET and for which no EIA licence has been issued; leave granted on that basis.

Reasoning

The court held the Applicant had not shown how the NLC's inquiry breaches its rights; issues of inconvenience, loss and compensation are matters for the inquiry itself. However, whether the 1st Respondent can acquire land for a project without an EIA licence and stopped by NET is arguable without delving into merits at the leave stage.

p. 7
03

Whether leave should operate as a stay

Holding

Stay refused because the application would not be rendered nugatory; any inquiry undertaken would become a nullity if the Gazette Notice is quashed.

Reasoning

Applying the principles in James Mburu Gitau, the court noted the 1st Respondent is not engaged in construction of the road or footbridge, the road project is already stopped by NET, and quashing the Gazette Notice would nullify any inquiry undertaken in the interim.

p. 7

Legal principles established

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  • The Environment and Land Court has jurisdiction to entertain applications for judicial review in disputes relating to environment and land by virtue of sections 13(1) and 13(7) of the ELC Act; the deletion of section 13(5) did not oust this jurisdiction
  • The test for leave in judicial review is whether there is an arguable case without examining the matter in depth
  • NET has no jurisdiction to determine disputes over compulsory acquisition of land
  • Failure to annex the decision sought to be quashed, though grave, is not fatal where Order 53 rule 7(1) permits submission of a copy before the substantive hearing
  • Preliminary objections on the merits of a judicial review application not yet filed should be reserved for the substantive application

Court orders

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  1. 1.Leave granted to the Applicant to apply for judicial review orders of certiorari and prohibition as sought in prayers 2 and 3 of the application dated 20th April 2016
  2. 2.The judicial review application to be filed within 21 days from the date of the ruling
  3. 3.Costs of the application to abide the outcome of the judicial review application
  4. 4.Prayer for leave to operate as a stay refused

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(3)(a) and (b); Article 67(3); Article 162(2)(b) and (3); Article 165(5) and (6)
  • Land Act, 2012Sections 107, 110(1), 111(1), 112, 113, 128, Part VIII; section 162(2) cited in the Gazette Notice
  • Environmental Management and Co-ordination Act, 1999 (EMCA)Sections 58, 129
  • Environment and Land Court Act, No. 19 of 2011Sections 13(1), 13(5) (deleted), 13(7)
  • Kenya Roads Act, 2007Sections 67(a) and (b)
  • National Land Commission Act, 2012General reference to NLC mandate
  • Civil Procedure RulesOrder 53 rule 7(1)
  • Statute Law (Miscellaneous Amendments) Act, 2012Amendment deleting section 13(5) of the ELC Act, effective 12th July 2012

Cases cited (7)

  • Njuguna vs. Minister for Agriculture
    (2000) I E.A 184
  • Aga Khan Education Service Kenya vs. R & others
    [2004] 1 E.A 1
  • Commissioner of Lands vs. Kunste Hotel Ltd.
    (1997) eKLR, (1995-1998) 1 E.A 1 (CAK)
  • James Mburu Gitau vs. Sub-county Public Health Officer, Kiambu County
    [2013] eKLR
  • Samuel Kamau Macharia & Another vs. Kenya Commercial Bank and 2 Others
    (2012) eKLR
  • East African Railways Corporation vs. Antony Sefu
    (1993) E.A 327
  • Gatimu Kinguru vs. Muya Gathangi
    (1976-80) 1 KLR 317
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Sections 13(1) and 13(7) of the Environment and Land Court Act, No. 19 of 2011; Order 53 Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Kellico Limited v National Land Commission & 3 others [2016] KEELC 511 (KLR)", Case Analysis (2016). Chamber Summons dated 2nd April 2016 (statutory statement and verifying affidavit dated 20th April 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/511/eng@2016-06-03

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