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ELCPartially AllowedCase No 267 of 2018· [2019] KEELC 636 (KLR)

Ethics and Anti-Corruption Commission v Noreen Shariff Choge, Eva Cherogony and Byron Kipngetich Gawon Choge (Sued as Administrators of the Estate of Jim Choge (Deceased) & 2 others [2019] KEELC 636 (KLR)

Environment and Land Court
27 November 2019
DOD. O. Ohungo
2,034 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed it can decide public land allotment disputes without prior National Land Commission involvement, and froze dealings on the disputed Nakuru plot.

What this practically means

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Executive summary

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The court dealt with the plaintiff's Notice of Motion dated 23rd July 2018 seeking an interlocutory injunction over Nakuru Municipality Block 5/147, and the 2nd defendant's preliminary objection dated 28th April 2019 contending that the plaintiff lacked locus standi and the court lacked jurisdiction in the absence of a prior National Land Commission determination under Article 68(c)(v) of the Constitution and section 14 of the National Land Commission Act. The plaintiff, through a forensic investigator's affidavit, asserted that the suit property was government land reserved for public housing on which stood government house NKU/HOU/MG/30 built in 1964, and had been irregularly alienated in 1994 to Jim Choge (deceased), passing through transmission to the 1st defendants and then to the 2nd defendant in 2013. The 1st defendants claimed lawful purchase by the deceased; the 2nd defendant claimed he purchased for value after due diligence and was registered on 3rd July 2013. The court held that the dispute over validity of allotment and ensuing titles fell squarely within its jurisdiction under Article 162(2)(b) and section 13 of the Environment and Land Court Act, and dismissed the preliminary objection with costs. Applying Giella v Cassman Brown as sequenced in Nguruman, it found a prima facie case on the undisputed public history of the property and held damages inadequate for a claim to protect a public utility. It granted an interlocutory injunction against the 2nd defendant and continued the ex parte inhibition pending trial, with costs of the motion to the plaintiff.

Key legal issues

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01

Locus standi and jurisdiction in the absence of a National Land Commission determination

Holding

The preliminary objection fails; the ELC has jurisdiction over validity of allotment and titles, and no law cited ousts it.

Reasoning

The court traced its establishment to Article 162 of the Constitution and section 4 of the ELC Act, and its jurisdiction to section 13. Since the dispute concerns validity of allotment of public land and the ensuing titles, it falls squarely within ELC jurisdiction. The 2nd defendant cited no law ousting the court's jurisdiction, so the preliminary objection was dismissed with costs.

p. 3
02

Whether an interlocutory injunction should issue

Holding

A prima facie case was established and damages would not be an adequate remedy; injunction granted.

Reasoning

Applying Giella v Cassman Brown and Nguruman, the court found the public history of the suit property (a government house built in 1964 standing on it and occupied by a government employee) undisputed, raising a valid issue whether the allocation and titles were lawful. Given the claim to protect a public utility, damages were inadequate, warranting preservation of the property pending trial.

p. 3

Legal principles established

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  • Validity of allotment of land and ensuing titles falls within the jurisdiction of the Environment and Land Court under Article 162(2)(b) and section 13 of the ELC Act, and no prior NLC determination is required to oust that jurisdiction.

Court orders

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  1. 1.Notice of Preliminary Objection dated 28th April 2019 dismissed with costs to the plaintiff
  2. 2.Interlocutory injunction restraining the 2nd defendant from alienating, selling, transferring, charging, developing, leasing, sub-dividing, wasting, entering and remaining upon, or otherwise dealing with Nakuru Municipality Block 5/147 pending hearing and determination of the suit
  3. 3.The inhibition ordered at the ex parte stage to remain in force pending hearing and determination of the suit
  4. 4.Costs of Notice of Motion dated 23rd July 2018 awarded to the plaintiff

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 42, 60(1)(g), 67(2)(a, e & f), 68(c)(v), 69, 70, 162(1), 162(2)(b), 162(3)
  • National Land Commission ActSections 5(1)(a, e & f) and 14
  • Environment and Land Court Act, 2011Sections 4 and 13
  • Civil Procedure RulesOrder 34

Cases cited (2)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010 as read with 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, "Ethics and Anti-Corruption Commission v Noreen Shariff Choge, Eva Cherogony and Byron Kipngetich Gawon Choge (Sued as Administrators of the Estate of Jim Choge (Deceased) & 2 others [2019] KEELC 636 (KLR)", Case Analysis (2019). Case No 267 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/636/eng@2019-11-27

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