Joseph A Oremo v Commissioner of Lands & 3 others [2019] KEELC 1838 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed it can hear land ownership claims even when filed as constitutional petitions.
What this practically means
#Executive summary
#Key legal issues
#Whether the Environment and Land Court has jurisdiction over the petition despite references to Articles 3, 10, 22, 23(3) and 40(1) of the Constitution and the African Charter
The court has jurisdiction; the petition's substance is a claim to ownership of Plot No. 27, Ref. No. 7212/XVIII, Manyatta Arab, a matter within its mandate, and the ancillary fair administrative action and fair hearing claims are also for this court
Although the petition's heading cited Articles 10, 22, 23(3), 40(1) and 3 of the Constitution and Articles 13 and 24 of the African Charter, the substance of the petition concerned the petitioner's claim to title of the plot allotted to him and allegedly reallocated to the 4th Respondent. The court looked beyond the heading to the averments and prayers, concluding it is the constitutionally mandated court for disputes touching on title to land, including claims commenced as constitutional petitions.
Who bears the burden of proving lack of jurisdiction in a preliminary objection
The party raising the preliminary objection bears the obligation to prove the court's lack of jurisdiction, which the 4th Respondent failed to discharge
The court held that notwithstanding the petitioner's and other respondents' failure to file submissions in opposition to the preliminary objection, the party asserting lack of jurisdiction retained the obligation to prove that assertion. The 4th Respondent, relying on the Lilians 'S' Caltex principle, failed to discharge this burden, and the objection was therefore rejected with costs in the cause.
Whether the petition referred to Article 3 of the Constitution
The preliminary objection was inaccurate; the petition contains no reference to Article 3, which deals with defence of the Constitution
The 4th Respondent's counsel had submitted that the petition invoked Article 3 of the Constitution, a matter for the High Court. The court examined the petition and found no such reference. Article 3 deals with defence of the Constitution, and its invocation would not have been a bar to this court's jurisdiction in any event given the land-based substance of the claim.
Legal principles established
#- The Environment and Land Court has jurisdiction to hear and determine claims, however commenced, including constitutional petitions, touching on title to land
- A party raising a preliminary objection on jurisdiction bears the burden of proving the lack of jurisdiction
Court orders
#- 1.The 4th Respondent's preliminary objection dated 25th April, 2017 is rejected with costs in the cause
- 2.Costs in the preliminary objection to be in the cause
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act No. 19 of 2011
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.
- William Abok v National Land Commission & 3 others; Redeemed Gospel Church (Interested Party) [2019] KEELC 980 (KLR)[2019] KEELC 980 (KLR)4 Nov 2019applied
Cite this brief
#Cite this brief
Caselaw, "Joseph A Oremo v Commissioner of Lands & 3 others [2019] KEELC 1838 (KLR)", Case Analysis (2019). Petition dated 5th August, 2018 (filed 8th August, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1838/eng@2019-09-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.