Christopher Ngusu Mulwa & 28 others v County Government of Kitui & 2 others [2017] KEELC 2271 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the Environment and Land Court over constitutional petitions concerning land
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.
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.
Change of use of public land and public participation
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.
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.
Legal principles established
#- 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
#- 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
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court jurisdiction over land and environment disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.