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ELCAllowedNotice of Motion dated 12th February, 2016 (constitutional petition)· [2017] KEELC 2271 (KLR)

Christopher Ngusu Mulwa & 28 others v County Government of Kitui & 2 others [2017] KEELC 2271 (KLR)

Environment and Land Court
16 June 2017
2,161 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kitui County must stop building a ward office on land set aside for a nursery school until residents are properly consulted, the Environment and Land Court ruled.

What this practically means

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Executive summary

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The Petitioners, members of the Kwa Ukungu Community of Kitui County, moved the court by a Notice of Motion dated 12th February 2016 seeking a conservatory order suspending all further construction on land known as Kyangwithya/Misewani/112, pending the hearing of a constitutional petition challenging the construction of a Ward office on land reserved for a nursery school. They argued that the project was not preceded by public participation, that the land is public land held in trust by the County Government of Kitui, and that information was withheld contrary to Article 35. The Respondents raised a preliminary objection that the court lacked jurisdiction under Articles 165(5) and 162(2) of the Constitution, asserting the petition was a land dispute disguised as a constitutional petition, and contended that public participation had occurred. The court first addressed jurisdiction. Citing authority suggesting the High Court and Environment and Land Court enjoyed concurrent jurisdiction, the judge disagreed, holding on the strength of the Supreme Court's decision in Republic vs Karisa Chengo that the two are distinct, autonomous courts with sui generis jurisdiction, and that only the Environment and Land Court may hear land disputes however commenced. On the merits at the interlocutory stage, the court noted the land was formerly trust land registered specifically for a nursery school, that the Respondents admitted constructing a Ward office, and that no evidence showed residents were informed of the change of use. Holding the Petitioners had established a prima facie case with chances of success, the court allowed the application as prayed.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over constitutional petitions concerning land

Holding

The Environment and Land Court has exclusive jurisdiction over land and environment disputes, whether commenced by petition or ordinary suit; the High Court is barred by Article 165(5) and the two courts cannot have concurrent or coordinate jurisdiction.

Reasoning

The court distinguished prior authority suggesting concurrent jurisdiction. Relying on the Supreme Court's decision in Republic vs Karisa Chengo, it held that the Environment and Land Court is a distinct, autonomous court with sui generis jurisdiction. Article 162(2)(b) vests land and environment disputes in the ELC, while Article 165(5) bars the High Court from such matters. Since a land dispute may be commenced by constitutional petition, only the ELC may entertain it, notwithstanding the mode of commencement.

p. 4
02

Change of use of public land and public participation

Holding

A County Government holding land in trust for residents cannot change the use of public land without consulting the residents or their elected representatives; the Respondents adduced no evidence that residents were informed of the change of use from a nursery school to a Ward office.

Reasoning

The suit property was formerly trust land, registered in favour of the 1st Respondent specifically for a nursery school. Under Article 62(2) the Respondents hold public land in trust for county residents. The admission that a Ward office was under construction, combined with the absence of evidence of notice to residents and the disputed consultation minutes, established a prima facie case. Whether public participation occurred was reserved for the full hearing of the Petition.

p. 4

Legal principles established

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  • The Environment and Land Court and the High Court are distinct autonomous courts with sui generis jurisdiction; the Environment and Land Court has exclusive jurisdiction over land and environment disputes however commenced, and the two courts cannot have concurrent or coordinate jurisdiction.
  • A County Government holding public land in trust under Article 62(2) cannot lawfully change the use of public land without consulting the residents of the area or their elected representatives.

Court orders

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  1. 1.A conservatory order issued pending the hearing and determination of the substantive constitutional petition, suspending any and all further construction processes and activities on the land known as Kyangwithya/Misewani/112

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2), 165(3), 165(5), 35, 42, 62, 69, 70
  • Environment and Land Court ActSection 13(3)
  • Trust Land Act (repealed)null

Cases cited (5)

  • Ifdid Ole Tauta & others vs Attorney General
    (2015) eKLR
  • Patrick Musimba vs. National Land Commission & 4 others
    (2015) eKLR
  • Leisure lodges vs. Commissioner for Lands & 767 others
    (2016) eKLR
  • Republic vs Karisa Chengo & others, Supreme Court. Petition No. 5 of 2015
    Supreme Court Petition No. 5 of 2015
  • Giella vs Cassman Brown
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court jurisdiction over land and environment disputes)

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, "Christopher Ngusu Mulwa & 28 others v County Government of Kitui & 2 others [2017] KEELC 2271 (KLR)", Case Analysis (2017). Notice of Motion dated 12th February, 2016 (constitutional petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2271/eng@2017-06-16

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