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ELCOtherELC MISC. APPL. NO. 6 OF 2019· [2019] KEELC 351 (KLR)

Republic v Director of Public Prosecutions & 2 others; Vipul Ratilal Dodhia (Interested Party); Ex Parte Erick Wekhombe Wafula [2019] KEELC 351 (KLR)

Environment and Land Court
14 November 2019
MNMwangi Njoroge
2,169 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled it cannot stop a criminal prosecution just because the dispute involves land; such cases belong to the High Court.

What this practically means

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Executive summary

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This was a ruling on directions concerning a judicial review Notice of Motion dated 13th June 2019 filed by Erick Wekhombe Wafula, an ex-parte applicant, seeking orders of prohibition and certiorari against his prosecution for malicious damage to property in Kitale Chief Magistrate Criminal Case Number 3255 of 2019. The interested party, Vipul Ratilal Dodhia, raised a preliminary objection contending that the Environment and Land Court at Kitale lacked jurisdiction, as the complaint arose from a criminal act and not from disputes relating to environment or land under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. The applicant argued that a High Court judge had granted leave and transferred the file to the ELC after appreciating the substratum of the matter, which revolved around land - specifically the alleged destruction of a wall erected across a public road in Kiminini Sub-county. The court examined its jurisdiction under Article 162(2)(b) and Section 13, confirming that its mandate is not confined to title disputes but extends to use and occupation of land. However, it held that the dominant issue in the motion was the challenge to the DPP's exercise of prosecutorial powers under Article 157, and no dispute over title, use or occupation of land existed between the parties. The court therefore found the transfer of the matter to the ELC to have been erroneous and ordered the judicial review motion re-transferred to the High Court for hearing and final disposal, to be placed before the Presiding Judge of the High Court, Kitale, on 18th November 2019 for further directions.

Key legal issues

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01

Jurisdiction of the ELC over judicial review proceedings challenging criminal prosecution

Holding

The ELC has no jurisdiction where the dominant issue is the DPP's exercise of prosecutorial power under Article 157, notwithstanding that the events giving rise to the criminal charge relate to land

Reasoning

The court construed Article 162(2)(b) and Section 13 of the Environment and Land Court Act, noting the court's mandate covers disputes on environment and use, occupation and title to land, including prerogative orders. However, the motion sought to prohibit and quash prosecution for malicious damage to property; no dispute over title, use or occupation existed between the applicant and respondents. The criminal proceedings arose from the DPP's constitutional mandate, making the matter one for the High Court.

p. 3
02

Whether the preliminary objection ought to be dismissed or the matter transferred

Holding

Rather than dismissing the motion or requiring a transfer application, the court ordered the matter re-transferred to the High Court

Reasoning

The court found the transfer of the matter to the ELC must have been erroneous since it lacked jurisdiction. Balancing the objectors' proposal to strike out the motion and the applicant's proposal for a further transfer application, the court chose the pragmatic course of re-transferring the motion to the High Court for hearing and final disposal, directing it before the Presiding Judge for directions.

p. 3

Legal principles established

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  • The ELC's jurisdiction under Article 162(2)(b) is not confined to title disputes but extends to use and occupation of land; however, a judicial review challenge to the DPP's exercise of prosecutorial powers under Article 157 does not fall within that jurisdiction even where the underlying events concern land

Court orders

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  1. 1.The judicial review Notice of Motion dated 13th June 2019 is re-transferred back to the High Court for hearing and final disposal
  2. 2.The matter to be placed before the Presiding Judge of the High Court Kitale on Monday 18th November 2019 for further directions

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 165(5)
  • Constitution of Kenya, 2010Article 157, 157(4), 157(6)(a)
  • Constitution of Kenya, 2010Articles 42, 69 and 70
  • Environment and Land Court Act, 2011Section 13(1), 13(2), 13(3), 13(4), 13(7)
  • Penal CodeSection 339

Cases cited (1)

  • Capital Fish Ltd -vs- Monnatz Ltd & 2 Others
    [2014] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011

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, "Republic v Director of Public Prosecutions & 2 others; Vipul Ratilal Dodhia (Interested Party); Ex Parte Erick Wekhombe Wafula [2019] KEELC 351 (KLR)", Case Analysis (2019). ELC MISC. APPL. NO. 6 OF 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/351/eng@2019-11-14

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