Nancy Wangari Kamau v National Land Commission & 2 others [2018] KEELC 200 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to strike out a land compensation dispute, confirming it handles compulsory acquisition cases and that weak objections waste everyone's money.
What this practically means
#Executive summary
#Key legal issues
#Whether the Environment and Land Court has jurisdiction over a suit concerning suit lands allegedly forming part of a deceased's estate and subject to compulsory acquisition
The preliminary objection fails because the suit lands are registered in the 2nd Defendant's name, so the Law of Succession Act does not arise, and the ELC has jurisdiction over compulsory acquisition of land under Section 13 of the Environment and Land Court Act.
The court noted the two suit parcels are currently registered in the 2nd Defendant's name, removing the succession element relied on by the objector. The Plaintiff's live dispute concerns exclusive compensation for compulsory acquisition by the 1st Defendant, a matter expressly within Section 13 of the Environment and Land Court Act. The 2nd Defendant also failed to demonstrate any prejudice if the suit proceeded to hearing on its merits, so striking out was unwarranted.
Whether the 2nd Defendant's notice of preliminary objection was properly founded on a pure point of law
The objection did not qualify as a proper preliminary objection since its determination would require ascertainment of facts and the matter was better heard on its merits.
Relying on Mukhisa Biscuit, the court observed that a preliminary objection must be a pure point of law argued on assumed facts and cannot be raised where facts must be ascertained. The objection here turned on questions of registration and the estate, which are factual. The court further invoked Ramji Megji Gudka on the sparing exercise of the power to strike out pleadings.
Legal principles established
#- A preliminary objection raises a pure point of law on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained or if judicial discretion is sought.
- The power to strike out pleadings must be sparingly exercised and only in the clearest of cases.
- The Environment and Land Court has jurisdiction under Section 13 of the Environment and Land Court Act over disputes involving compulsory acquisition of land.
Court orders
#- 1.The Preliminary Objection dated 17th July, 2018 is disallowed as unmerited
- 2.The suit to be set down for hearing and heard on its merits
- 3.Costs in the cause
- Jurisdiction invoked
- Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Nancy Wangari Kamau v National Land Commission & 2 others [2018] KEELC 200 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/200/eng@2018-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.