Ethics & Anti- Corruption Commission v National Land Commission & 4 others [2019] KEELC 3146 (KLR)
The bottom line
#A Kenyan court froze Sh927 million in disputed railway land compensation, refusing early release until corruption allegations are fully tried.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over the Petition
The court has jurisdiction over the petition concerning the compensation award for compulsory acquisition, but not over the consultancy agreement dispute pending in the High Court
The 3rd Respondent raised a preliminary objection on jurisdiction and res sub judice. The court noted the fulcrum of the Petition is the Award for compulsory acquisition of land, which falls squarely within section 13 of the Environment and Land Court Act. However, the consultancy agreement between the 2nd and 3rd Respondents is the subject of a pending High Court suit, and on that issue the court would down its tools.
Retention of the entire award of Kshs. 927,885,080.00 pending determination of the Petition
Retention maintained; mandatory injunction refused at the interlocutory stage
The Petitioner's allegations of inflated compensation driven by bribery and corruption are disputed by all Respondents. The evidence consists of transcripts and recordings whose probative value is contested. A mandatory injunction requires a clear case decidable at once; this matter requires full trial analysis of the allegations and counter-allegations, so the court could not grant the mandatory injunction at this stage.
Release of the conceded sum of Kshs. 690,697,077.76 to the 2nd Respondent
Release refused at the interlocutory stage
Although the Cross Petitioner demonstrated infringement of its Article 40 right to property, the Petitioner raised serious allegations of bribery and corruption implicating Chapter 6 of the Constitution which cannot be wished away. The funds are already deposited with the Deputy Registrar pending the dispute and are available for release upon determination. The court also could not review Justice Nyakundi's orders, being a court of concurrent jurisdiction.
Injunction against the Interested Party from boarding the suit land
Refused
Both the 2nd Respondent and the Interested Party admitted the contractor took early occupation prior to compensation. Compensation has already been determined and deposited in court, and the SGR is a national project of public interest, so the court declined to grant the conservatory injunction restraining the Interested Party.
Legal principles established
#- The Environment and Land Court has jurisdiction over disputes relating to land and environment including compulsory acquisition of land
- The Environment and Land Court cannot review orders of the High Court as they are courts of concurrent jurisdiction
- Mandatory injunctions should only be granted at interlocutory stage in clear cases where the matter ought to be decided at once
Court orders
#- 1.Declined to grant an order for the release of the sum of Kshs. 690,697,077.76 held out of the sum of Kshs. 927,885,080.00 deposited in court at the interlocutory stage
- 2.Directed that the Petition be set down for hearing on a priority basis within two weeks
- 3.Certified that costs of the two applications dated 19th February 2019 and 9th March 2019, including the Notice of Preliminary Objection dated 24th April 2019, be in the cause
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethics & Anti- Corruption Commission v National Land Commission & 4 others [2019] KEELC 3146 (KLR)", Case Analysis (2019). Constitutional Petition No. 2 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3146/eng@2019-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.