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ELCAllowedNot stated in judgment (Machakos ELC Petition)· [2017] KEELC 2411 (KLR)

Onesmas Nthanga Nguma & 77 others v Katelembo Athiani Muputi Farming and Ranching Co-operative Society & 6 others [2017] KEELC 2411 (KLR)

Environment and Land Court
16 June 2017
1,385 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court, not the High Court, decides land constitutional petitions, and occupiers cannot be evicted before a landowner proves title.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 23rd May 2016 in which the Petitioners sought a temporary injunction restraining the 1st, 3rd, 4th and 5th Respondents from summoning, arresting, detaining, prosecuting, evicting or harassing them over their occupation and use of disputed land in Katelembo, Machakos County, pending the hearing of the main Petition. The 7th Petitioner deponed that she and her co-Petitioners were born on the land, that their parents lived and were buried there, and that the land had passed down several generations. The 1st Respondent, a cooperative society registered in 1970, asserted it purchased the land from a white settler (Normac Hill) and that the Petitioners were trespassers, some of them members who had grabbed or resold allocated plots. The Respondents also objected that the court lacked jurisdiction. Relying on its earlier decision in Christopher Ngusu Mulwa v. County Government of Kitui and the Supreme Court's decision in Republic v. Karisa Chengo, the court held that the Environment and Land Court, and not the High Court, has jurisdiction over constitutional petitions concerning the right to own land, since Article 162(2)(b) vests land disputes in the ELC and Article 165(5) bars the High Court. On the interlocutory application, the court noted the Respondents did not deny the Petitioners' occupation, and that the 1st Respondent had not exhibited its title document or survey map, so the Petitioners could not be held trespassers at that stage. The community land claim under Article 63 was reserved for trial. The court allowed the application as prayed, granted the injunction, and ordered costs in the cause.

Key legal issues

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01

Jurisdiction of the ELC over constitutional petitions concerning land

Holding

The ELC has exclusive jurisdiction over constitutional petitions relating to land; the High Court is barred by Article 165(5).

Reasoning

Relying on its earlier decision in Christopher Ngusu Mulwa v. County Government of Kitui and the Supreme Court's decision in Republic v. Karisa Chengo, the court held that the ELC is a sui generis court distinct from the High Court. Article 162(2)(b) vests land disputes in the ELC while Article 165(5) precludes the High Court from hearing them, so the two courts cannot have concurrent jurisdiction.

p. 4
02

Entitlement to a temporary injunction pending the main Petition

Holding

A temporary injunction was granted because the Petitioners are in occupation and the 1st Respondent failed to exhibit title documents proving ownership.

Reasoning

The Respondents did not deny that the Petitioners occupy the land, and photographs showed developments thereon. The 1st Respondent did not exhibit its title document or survey map, so the court could not conclude at the interlocutory stage that the Petitioners are trespassers. The community land claim under Article 63 was reserved for trial, with the status quo to be maintained in the interim.

p. 4

Legal principles established

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  • The Environment and Land Court, not the High Court, has jurisdiction to entertain constitutional petitions relating to land and the environment, however such disputes are commenced.

Court orders

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  1. 1.Temporary injunction granted restraining the 1st, 3rd, 4th and 5th Respondents from summoning, arresting, detaining, prosecuting, evicting or in any manner harassing the Petitioners over their occupation and use of the land pending the hearing and determination of the main Petition
  2. 2.Costs of the Application to be in the cause
  3. 3.Status quo as regards occupation of the suit land to be maintained until trial

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 28, 29, 40, 43, 63(d)(ii), 162(2)(b), 165(3), 165(5)
  • Registered Land Act (repealed)Section 30
  • Land Registration ActSection 28

Cases cited (2)

  • Christopher Ngusu Mulwa & others vs. The County Government of Kitui
    Machakos ELC No. 63 of 2017
  • Republic vs Karisa Chengo & others
    Supreme Court Petition No. 5 of 2015
Jurisdiction invoked
Article 162(2)(b) of the Constitution - jurisdiction of the Environment and Land Court over disputes relating to land and environment

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, "Onesmas Nthanga Nguma & 77 others v Katelembo Athiani Muputi Farming and Ranching Co-operative Society & 6 others [2017] KEELC 2411 (KLR)", Case Analysis (2017). Not stated in judgment (Machakos ELC Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2411/eng@2017-06-16

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