Susan Gillian Thomasin Magor v Kenya Electricity Transmission Co. Ltd & 3 others [2017] KEELC 123 (KLR)
The bottom line
#Kenya's Environment and Land Court kept property protections in place, confirming it can hear constitutional land cases even against public bodies.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over constitutional petitions concerning land rights
The court has jurisdiction to hear and determine constitutional issues arising from land ownership, occupation and use, under Article 162(2)(b) and Section 13 of the ELC Act.
The applicant relied on Karisa Chengo to argue want of jurisdiction and nullity of the conservatory orders. The court held the cited cases inapplicable, noting that the ELC is clothed with jurisdiction to determine constitutional issues arising within its land jurisdiction, as held in David Ramogi. Having jurisdiction, the court could not treat the conservatory orders as a nullity.
Whether the Petition was fatally defective for non-compliance with Rule 10(2) of the Mutunga Rules
No; the Petition sufficiently informed the respondent of the complaint, so any alleged defect could not justify striking it out.
The applicant argued the Petition failed to plead with sufficient particularity the provisions violated, contrary to Rule 10(2) of the Mutunga Rules, and that the petitioner should have used ordinary civil processes. The court, having perused the Petition, was satisfied it adequately disclosed the grievance and held the Mutunga Rules do not make such non-compliance fatal.
Availability of certiorari in a constitutional petition
Article 22 permits issuance of any appropriate orders, including judicial review orders, in a constitutional petition.
The applicant contended certiorari had to be sought under the Law Reform Act and Order 53 of the Civil Procedure Rules. The court accepted the petitioner's submission that this misapprehends emerging judicial review jurisprudence, since Articles 22 and 23 allow any appropriate relief through a petition.
Public interest versus the petitioner's private rights
The alleged public interest could not defeat the petitioner's rights at interlocutory stage, especially where the lawfulness of the applicant's wayleave acquisition had to be determined at trial.
The applicant argued its stalled operations were of great public interest. The court adopted Machareus Obaga Anunda, holding that deprivation of property rights must meet the constitutional threshold in Article 40(3)(b), including prompt just compensation and access to court. Whether the applicant complied with the law in acquiring the wayleave was a matter for trial.
Delay in prosecution of the Petition
Both parties were responsible for the delay through a multiplicity of applications; the court declined to vacate the conservatory orders but imposed a nine-month timeline.
Each side blamed the other for delay. The evidence showed both parties contributed through multiple applications. The court therefore declined to discharge the conservatory orders outright, but directed expeditious hearing within nine months, failing which the conservatory orders would automatically stand vacated.
Legal principles established
#- The Environment and Land Court has jurisdiction to hear and determine constitutional issues arising out of its area of jurisdiction.
- Failure to comply with Rule 10(2) of the Mutunga Rules does not of itself render a Petition fatally defective where the respondent is adequately informed of the complaint.
- Under Articles 22 and 23, appropriate reliefs including judicial review orders may be sought through a constitutional petition.
Court orders
#- 1.Declined to vary, set aside or discharge the conservatory orders issued on 4th June 2014; declined to compel security for costs; declined to strike out the Petition
- 2.Directed the parties, with the help of the registry, to ensure the Petition is heard and determined within nine (9) months from the date of delivery of the ruling, failing which the conservatory orders shall stand automatically vacated
- 3.Ordered that the costs of the application shall abide the outcome of the Petition
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution as read with Section 13 Rules 2(e) and (7) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Susan Gillian Thomasin Magor v Kenya Electricity Transmission Co. Ltd & 3 others [2017] KEELC 123 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/123/eng@2017-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.