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ELCStruck OutMiscellaneous Application No. 15 of 2017 (Judicial Review)· [2017] KEELC 1988 (KLR)

Cordisons International (K) Limited v National Land Commission & 4 others [2017] KEELC 1988 (KLR)

Environment and Land Court
27 July 2017
6,728 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~27 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out Cordisons International's land dispute because it was filed in the wrong court, confirming such cases cannot simply be moved elsewhere.

What this practically means

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Executive summary

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Cordisons International (K) Limited filed Miscellaneous Application No. 15 of 2017 in the Judicial Review Division of the High Court at Nairobi seeking leave to apply for certiorari to quash two Part Development Plans and a direction of the Chairman of the National Land Commission, mandamus to compel issuance of leases over approximately 11,100 acres at Kiongwe in Lamu County, and prohibition against the NLC Chairman. The Attorney General raised a preliminary objection that the High Court lacked jurisdiction under Article 165(5)(b), and Justice Aburili transferred the file to the Environment and Land Court at Malindi. Kenwind Holdings Limited, enjoined as an interested party, and 39 individuals styling themselves Interested/Afflicted Parties then filed preliminary objections contending the proceedings were a nullity, having been commenced in a court without jurisdiction and incapable of transfer. The Applicant countered that the issue was res judicata, having been dealt with by Aburili J. The court held that the 39 individuals were not proper parties entitled to audience at that stage, as they had not demonstrated how the orders sought affected them. On jurisdiction, the court found Aburili J had not conclusively determined the question, so res judicata did not apply. Applying the Lillian S principle, Kagenyi v Musiramo, and Equity Bank v Mutuku, the court held that a suit filed in a court without jurisdiction is a nullity incapable of transfer; the USIU harmonisation approach was distinguished as transitional. The judicial review application dated 18th January 2017 was struck out with costs.

Key legal issues

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01

Whether the 39 Interested/Afflicted Parties were proper parties entitled to audience at the leave stage

Holding

They were not proper parties; they had not demonstrated how the orders sought would affect them.

Reasoning

Order 53 rule 3 confines service at leave stage to persons directly affected, though the court retains discretion to join others. A party seeking to join itself must show how the proceedings affect it. Relying on Macadamia Nuts Dealers v Horticultural Crops Development Authority, the court held the 39 individuals had walked into the proceedings without demonstrating any interest, so the court lacked material to find they deserved audience at that stage.

p. 6
02

Whether the question of jurisdiction was res judicata following Aburili J's transfer order

Holding

It was not; the transfer was made for further directions and did not amount to a final and conclusive determination of jurisdiction.

Reasoning

Applying Section 7 of the Civil Procedure Act, the court examined the record of 30th January 2017 and the brief ruling. The Learned Judge merely forwarded the file to Malindi ELC for further directions and consideration, expressly declining conservatory orders, and never delved into the Attorney General's preliminary objection on jurisdiction. Hence neither res judicata nor functus officio arose, and the objection could be considered by this court.

p. 8
03

Whether the High Court had jurisdiction over the suit and the effect of its transfer to the ELC

Holding

The High Court lacked jurisdiction over land use planning and title disputes under Article 165(5)(b); the suit filed there was a nullity incapable of transfer.

Reasoning

Article 162(2)(b) and Section 13 of the Environment and Land Court Act vest disputes on land use planning and title in the ELC exclusively. Citing Kagenyi v Musiramo, Mendonca v Rodriques and Equity Bank v Bruce Mutie Mutuku, the court held that a court cannot transfer a suit filed in a forum without jurisdiction; such a suit is void ab initio and incurably bad, per Macfoy v United Africa Co. The USIU harmonisation approach was distinguished as a transitional 2012 position.

p. 12

Legal principles established

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  • A suit filed in a court without jurisdiction is a nullity and cannot be cured by transfer to a competent court.
  • Jurisdiction is everything; a court without jurisdiction has no power to take any step in the proceedings.
  • Res judicata requires a final and conclusive determination by a competent court; a transfer for directions is not such a determination.

Court orders

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  1. 1.The application dated 18th January 2017 is struck out with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 159, 162(2)(b), 165(5), 163
  • Environment and Land Court ActSection 13(2)(a); Preamble
  • Law Reform ActSection 8
  • Civil Procedure ActSection 7 (res judicata); Section 18
  • Civil Procedure RulesOrder 1 Rule 13; Order 53 Rules 2, 3(2) and (4), 6

Cases cited (14)

  • Owners of the Motor Vessel "Lilian S" v Caltex Oil (Kenya) Ltd
    (1989) KLR 1
  • Republic v Karissa Chengo & 2 Others
    Petition No. 5 of 2015; Criminal Appeals Nos. 44, 45 and 76 of 2014 (2015) eKLR
  • Macadamia Nuts Dealers v Horticultural Crops Development Authority & Others
    (2014) eKLR
  • Karia & Another v The Attorney General and Others
    (2005) 1 EA 83
  • Guaranty Trust Co. of New York v Hannay & Co
    (1915) 2 KB 536
  • Garthwaite v Garthwaite
    (1964) 2 All ER 233
  • United States International University (USIU) v The Attorney General & Others
    Petition No. 170 of 2012
  • James Davies Njuguna v James Chacha & 3 Others
    (2013) eKLR
  • Omwoyo v African Highlands & Produce Co Ltd
    (2002) 1 KLR 698
  • Kagenyi v Musiramo & Another
    (1968) EA 48
  • Mendonca v Rodriques
    (1906-1980) 2 KLR 51
  • Equity Bank Ltd v Bruce Mutie Mutuku T/A Diani Tours & Travel
    (2016) eKLR
  • Macfoy v United African Co Ltd
    (1961) 3 All ER 1169
  • Re the Matter of Interim Independent Electoral Commission
Jurisdiction invoked
Articles 162(2)(b) and 165(5) of the Constitution; Environment and Land Court Act, Section 13

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, "Cordisons International (K) Limited v National Land Commission & 4 others [2017] KEELC 1988 (KLR)", Case Analysis (2017). Miscellaneous Application No. 15 of 2017 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1988/eng@2017-07-27

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