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ELCDismissedHCCC No. 162 'B' of 2011 (consolidated with HCCC No. 133 of 2011)· [2017] KEELC 318 (KLR)

Presbyterian Foundation v Jacob Wangora & 2 others [2017] KEELC 318 (KLR)

Environment and Land Court
13 December 2017
1,988 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a complaint filed with the National Land Commission cannot pause an ongoing land case, which must proceed in court.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kajiado (Christine Ochieng, J) determined a Notice of Motion dated 1st December 2015 by which the Applicants, trustees/representatives of the Ongata Rongai Community, sought a stay of the consolidated suit (HCCC No. 162 'B' of 2011 consolidated with HCCC No. 133 of 2011) pending hearing of a complaint lodged with the National Land Commission (NLC) Kajiado chapter on 7th October 2015. The suit land, LR No. NGONG/NGONG/528, was alleged to have been held in trust by the former Ol Kejuado County Council for the community, which developed schools, a health centre, a stadium and other projects, and to have been fraudulently transferred to the Presbyterian Foundation in December 1999 without consent or consideration; the Foundation was allegedly now demanding rent and seeking subdivision. The Respondent opposed, arguing the suit had been withdrawn by a letter dated 4th June 2015, that there was no mutual agreement to refer the matter to alternative dispute resolution, that the suit premises were not public land, and that the Applicant lacked capacity. The court framed a single issue: whether the suit should be stayed pending the NLC complaint's determination. Applying section 6 of the Civil Procedure Act, the court held that a complaint is not a suit and cannot ground a stay. The NLC's role under the NLC Act is investigative and recommendatory; only the Court can make a final determination. The ELC's jurisdiction under section 13 of the ELC Act over land disputes was unaffected, and proceeding would not usurp the NLC's powers. The application was dismissed with costs and parties urged to set the suit down for hearing.

Key legal issues

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01

Whether a complaint lodged with the National Land Commission warrants a stay of suit under section 6 of the Civil Procedure Act

Holding

No. Section 6 requires a previously instituted suit or proceeding, and an NLC complaint is not a suit.

Reasoning

The court read section 6 of the Civil Procedure Act, couched in mandatory terms, as requiring a pending suit or proceeding in another court. The NLC complaint was lodged on 7th October 2015, after the suit was filed and after the status quo order. The NLC's role under section 5(1)(e) and (f) of the NLC Act is to investigate and recommend redress; its findings may assist the court but cannot determine the suit. Only the ELC, vested with jurisdiction under section 13 of the ELC Act, can make the final determination.

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02

Whether the ELC proceeding would usurp the constitutional powers of the National Land Commission

Holding

No. The NLC retains its mandate and may be called as an expert witness; the court does not usurp its powers by proceeding with the suit.

Reasoning

The Applicant relied on Shaban Mohamud Hassan for the proposition that courts should not usurp the powers of other constitutional organs. The court held that the NLC's role is investigative and recommendatory, distinct from the adjudicative jurisdiction conferred on the ELC by section 13(1) and (2)(c) and (d) of the ELC Act over disputes relating to land administration and management and to public, private and community land. The dispute concerns ownership of the suit land, squarely within ELC jurisdiction.

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Legal principles established

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  • A complaint lodged with the National Land Commission is not a 'suit' for purposes of section 6 of the Civil Procedure Act, and cannot stay proceedings before the Environment and Land Court
  • Only the Court can make a final determination of a land dispute; NLC investigations and findings may aid but cannot supersede the suit
  • The ELC hearing a case while a related NLC complaint is pending does not amount to usurping the NLC's powers

Court orders

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  1. 1.The application dated 1st December, 2015 is dismissed with costs
  2. 2.Parties are urged to set the suit down for hearing and determination
Jurisdiction invoked
Section 13(1) Environment and Land Court Act, Article 162(2)(b) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Presbyterian Foundation v Jacob Wangora & 2 others [2017] KEELC 318 (KLR)", Case Analysis (2017). HCCC No. 162 'B' of 2011 (consolidated with HCCC No. 133 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/318/eng@2017-12-13

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