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ELCDismissedNotice of Motion dated 6th February, 2019 in Petition dated 6th October, 2015· [2019] KEELC 1427 (KLR)

Mwangangi Makau & 3 others v County Government of Kitui & 3 others [2019] KEELC 1427 (KLR)

Environment and Land Court
4 October 2019
OAO.A. ANGOTE
1,570 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Machakos refused to reinstate a land injustice petition, ruling that filing a complaint with the National Land Commission does not excuse ignoring court directions.

What this practically means

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Executive summary

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The Petitioners moved the court by Notice of Motion dated 6th February, 2019 seeking to set aside orders of 31st January, 2019 dismissing their Petition dated 6th October, 2015 for want of prosecution, to reinstate the Petition, to enjoin the National Land Commission as an Interested Party, to direct the Commission to investigate historical land injustice grievances, and to stay proceedings pending the Commission's findings. The Application was supported by an affidavit of the Petitioners' advocate, who explained that the enactment of the Community Land Act and the Land Laws (Amendment) Act, 2016 had given the National Land Commission a mandate over historical land injustices, and that a claim had been lodged with the Commission on 29th June, 2018. He attributed the non-attendance on mention dates to a lapse by an advocate holding his brief. The 1st, 3rd and 4th Respondents opposed, contending the Petitioners never prosecuted the Petition, that the adjudication process was complete, and that there were no constitutional issues for the court. The court reviewed the record showing the Petitioners' advocate failed to file submissions as directed on 18th April, 2018 and was absent on successive mention dates. Relying on the Court of Appeal's decision in Chief Land Registrar vs. Nathan Tirop Koech, adopted in Safepak Limited vs. Henry Wambega, the court held that it has concurrent jurisdiction with the National Land Commission over historical land injustice claims, so referral to the Commission did not excuse non-prosecution. The court found the Petitioners had lost interest in the Petition, declined to reinstate it, and dismissed the Application with costs, with the Petition standing dismissed.

Key legal issues

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01

Whether the dismissal of the Petition for want of prosecution should be set aside and the Petition reinstated

Holding

The court declined to reinstate the Petition because the Petitioners lost interest after lodging a complaint with the National Land Commission and offered no plausible reason for failure to prosecute

Reasoning

The record showed the Petitioners' advocate failed to file submissions as directed on 18th April, 2018 and was absent on successive mention dates. The advocate's letter to the Commission demonstrated loss of interest. Neither the enactment of the Community Land Act and Land Laws (Amendment) Act, 2016 nor the referral of the dispute to the Commission excused the non-prosecution.

p. 2
02

Whether the National Land Commission has exclusive jurisdiction over historical land injustice claims

Holding

No - the court holds concurrent statutory and constitutional jurisdiction with the Commission to determine historical land injustice claims

Reasoning

Relying on the Court of Appeal decision in Chief Land Registrar & 4 others vs. Nathan Tirop Koech & 4 others, the court held that nothing in the Constitution or the National Land Commission Act ousts the jurisdiction of the High Court over historical injustice claims. The referral of the dispute to the Commission was therefore no reason to delay prosecuting the Petition.

p. 3

Legal principles established

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  • A court has jurisdiction to hear and determine claims of historical land injustice whether or not the National Land Commission is seized of the matter
  • Referral of a dispute to the National Land Commission does not justify keeping a Petition pending indefinitely or failing to prosecute it

Court orders

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  1. 1.The Application dated 6th February, 2019 is dismissed with costs
  2. 2.The Petition dated 6th October, 2015 stands dismissed with costs as ordered on 31st January, 2019

Authorities

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Legislation

  • Community Land Act
  • Land Laws (Amendment) Act
  • National Land Commission ActSection 15
  • Constitution of Kenya, 2010Article 63(5); Article 67(2)(e)

Cases cited (2)

  • Chief Land Registrar & 4 others vs. Nathan Tirop Koech & 4 others
    (2018) eKLR
  • Safepak Limited vs. Henry Wambega & 11 others
    (2019) eKLR
Jurisdiction invoked
Statutory and constitutional mandate of the High Court/ELC to determine historical land injustice claims; Article 67(2)(e) of the Constitution discussed

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, "Mwangangi Makau & 3 others v County Government of Kitui & 3 others [2019] KEELC 1427 (KLR)", Case Analysis (2019). Notice of Motion dated 6th February, 2019 in Petition dated 6th October, 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1427/eng@2019-10-04

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