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ELCStruck OutNot stated in judgment (Environment and Land Court Petition)· [2017] KEELC 1193 (KLR)

Holy Spirit Association for the Unification of the World Christianity v Ukwala Supermarkets Limited & another [2017] KEELC 1193 (KLR)

Environment and Land Court
31 October 2017
EOE. O. Obaga
1,566 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 struck out a landlord's petition challenging a tenancy transfer ruling, warning that losing at a tribunal doesn't justify filing a constitutional petition instead of appealing.

What this practically means

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Executive summary

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The Petitioner, registered owner of LR No.209/2794, was landlord to the Respondent, which operated Ukwala Supermarkets on the premises. The Respondent negotiated to transfer its business, as a going concern, to the interested party, and sought the Petitioner's consent to the transfer of the tenancy. When the Petitioner delayed consent, the Respondent obtained an order from the Business Premises Rent Tribunal permitting the transfer. The Petitioner, aggrieved, filed a Notice of Appeal and, before exhausting the appeal, instituted a constitutional petition in the Environment and Land Court seeking, among other reliefs, to set aside the Tribunal's ruling of 9th September 2016 and conservatory orders restraining the transfer. The Respondent raised a preliminary objection contending that the Petition was res judicata, an abuse of process, and that the Court lacked jurisdiction. On jurisdiction, the Court held that although Section 13(3) of the Environment and Land Court Act expressly confers jurisdiction over Articles 42, 69 and 70, that provision is not exhaustive, and the Court may entertain Article 40 property-rights petitions, relying on authorities cited by the Petitioner. On res judicata, the Court found the issues, parties and subject matter identical to those decided by the competent Tribunal, applying Section 7 of the Civil Procedure Act and the John Florence Maritime Services decision confirming that res judicata applies to constitutional litigation. The Court deprecated the emerging practice of converting lost tribunal or court decisions into constitutional petitions, held the Petition res judicata and an abuse of process, and struck out both the Petition and the Notice of Motion, with costs to the Respondent.

Key legal issues

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01

Jurisdiction of the ELC over Article 40 property rights petitions

Holding

The preliminary objection on jurisdiction fails; the ELC has jurisdiction under Article 40

Reasoning

Section 13(3) of the Environment and Land Court Act is not exhaustive. Though it expressly singles out Articles 42, 69 and 70, the Court, being a superior court of equal status, may entertain constitutional claims relating to land and property under Article 40, consistent with Patrick Musimba, Leisure Lodge and USIU.

p. 2
02

Res judicata

Holding

The Petition is res judicata as the same issues between the same parties were decided by the Tribunal

Reasoning

Section 7 of the Civil Procedure Act bars trying matters directly and substantially in issue in a former suit between the same parties before a competent court. The Petitioner's Petition attacks the Tribunal's Ruling of 9th September 2016, raising the same issues already heard and decided by the Tribunal.

p. 3
03

Abuse of process

Holding

Filing a constitutional petition to annul a tribunal decision instead of pursuing the pending appeal is an abuse of the process of the Court

Reasoning

The Petitioner filed a Notice of Appeal against the Tribunal decision but, before exhausting the appellate process, instituted a petition seeking to set aside the Tribunal's ruling. The Court deprecated this emerging practice of forum-shopping by way of constitutional petitions.

p. 3

Legal principles established

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  • The Environment and Land Court has jurisdiction to enforce fundamental rights under Article 40 of the Constitution notwithstanding that Section 13(3) of the ELC Act singles out Articles 42, 69 and 70
  • The doctrine of res judicata applies to constitutional petition litigation
  • A party who loses before a tribunal and, before exhausting the appeal process, files a constitutional petition seeking to annul the earlier decision abuses the process of the Court

Court orders

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  1. 1.The preliminary objection on grounds of jurisdiction fails
  2. 2.The Petition and the accompanying Notice of Motion are struck out
  3. 3.Costs of the Petition and Notice of Motion to the Respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40, 42, 69, 70, 165(3)(b)
  • Environment and Land Court ActSection 13(3)
  • Civil Procedure ActSection 7
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 3(8)
  • Industrial Court Act, 2011Section 12

Cases cited (4)

  • Patrick Musimba Vs National Land Commission & 4 Others
    (2015) eKLR
  • Leisure Lodge Limited Vs Commissioner of Lands & 67 Others
    (2016) eKLR
  • United States International University Vs Attorney General
    (2012) eKLR
  • John Florence Maritime Services Ltd & Another Vs Cabinet Secretary for Transport and Infrastructure & 3 Others
    Civil Appeal No. 42 of 2014, (2015) eKLR
On appeal from
Business Premises Rent Tribunal
Jurisdiction invoked
Section 13 of the Environment and Land Court Act; Articles 40, 42, 69 and 70 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, "Holy Spirit Association for the Unification of the World Christianity v Ukwala Supermarkets Limited & another [2017] KEELC 1193 (KLR)", Case Analysis (2017). Not stated in judgment (Environment and Land Court Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1193/eng@2017-10-31

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