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ELCOtherELC Reference No. 1 of 2018

National Land Commission v Afrison Export Import Limited & 10 others [2019] KEELC 4569 (KLR)

Environment and Land Court
1 February 2019
2,429 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 confirmed it can pause criminal cases tied to land disputes, but refused to do so here because the National Land Commission showed no real need.

What this practically means

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Executive summary

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The National Land Commission filed a Reference under Section 127 of the Land Act on 2 August 2018 seeking determination of whether the 13.5-acre portion of LR No. 7879/4, on which Ruaraka High School and Drive In Primary School stand, is public or private land, and moved by Notice of Motion for conservatory orders staying all civil and criminal proceedings arising from the compulsory acquisition, against the background of a part-payment of Kshs.1.5 billion out of Kshs.3,269,040,600 compensation to Afrison Export Import Limited and Huelands Limited and ensuing investigations by the EACC, the DPP and parliamentary committees. The Attorney General and the DPP raised a preliminary objection that the Environment and Land Court lacks jurisdiction to grant conservatory orders touching on criminal prosecution. The court overruled the objection, holding, on the authority of Mugendi and Munya, that a court properly seized of a matter may make ancillary orders, and that the apprehended criminal prosecutions were so intertwined with the acquisition issue before it that they could not be severed. On the merits, however, the court declined the conservatory orders: the NLC failed to show that the various pending civil suits bore on the Reference and the court could not stop a matter pending in the Court of Appeal; and since no prosecution had commenced and the Reference was already heard and awaiting judgment, conservatory orders would be superfluous. The Notice of Motion was dismissed with each party bearing their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this court has jurisdiction to grant conservatory orders as prayed for, including orders touching on criminal prosecution
  2. 2.Whether conservatory orders should be granted in the manner sought, staying civil and criminal proceedings arising from the compulsory acquisition of part of LR No. 7879/4

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction to grant conservatory orders touching on criminal prosecution

Holding

The preliminary objection on jurisdiction is overruled; the court has jurisdiction where the criminal aspect arises directly from a matter properly pending before it

Reasoning

The court applied the Mugendi and Munya line of authority on ancillary powers: a court seized of a matter within its jurisdiction may make essential or ancillary orders to sustain its mandate. The Reference, properly brought under Section 127 of the Land Act, concerned whether the acquired portion was public or private land; the apprehended prosecutions stemmed from the same acquisition process and could not be severed from the principal question.

p. 3
02

Whether conservatory orders should issue staying civil and criminal proceedings pending determination of the Reference

Holding

Dismissed: no basis was shown for stopping the civil cases, and no prosecution had commenced, making the orders superfluous

Reasoning

The NLC bore the burden of demonstrating that the various pending suits across the courts bore on the Reference and required staying; it failed to do so, and in any event the court could not stop a matter pending in the Court of Appeal. As to criminal proceedings, neither the EACC nor the DPP had taken any precipitate step towards prosecution, and the Reference had been heard with judgment pending, so conservatory relief had become otiose.

p. 3

Legal principles established

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  • A court with jurisdiction over a principal matter may grant conservatory orders ancillary to it, even touching on criminal prosecution, where the criminal aspect is so intertwined with the main issue as not to be separable and just cause is shown

Court orders

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  1. 1.The preliminary objection by the 7th and the 10th interested parties is overruled
  2. 2.The prayer for conservatory orders is declined
  3. 3.Each party to bear their own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
Jurisdiction invoked
Sections 127 and 128 of the Land Act No. 2 of 2012, with the court's jurisdiction under Article 162(2)(b) of the Constitution and the Environment and Land Court Act in issue

Relief refused

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Conservatory orders staying civil proceedings in various courts touching on the compulsory acquisition

The NLC did not demonstrate that the pending cases bore on the Reference, and the court cannot stop a matter pending before the Court of Appeal

p. 3

Conservatory orders staying criminal investigations or prosecution arising from the acquisition

No precipitate action had been taken towards prosecution and the Reference was already heard and pending judgment, making the orders superfluous

p. 3

Costs

Each party to bear their own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In my considered view, this court can grant conservatory orders touching on criminal prosecution which are arising directly from a matter which is properly pending before the court if there is just cause shown for it to do so.
p. 2Ancillary jurisdiction to grant conservatory orders on criminal aspects of a land matter
it was incumbent upon The NLC to demonstrate that those cases have a bearing on what is before this Court and that there is need to stop the cases from proceeding
p. 3Burden on the applicant seeking stay of parallel civil proceedings
1. The preliminary objection by the 7th and the 10th interested parties is overruled. 2. The prayer for conservatory orders is declined 3. Each party to bear their own costs.
p. 3Final orders

Issues in the judgment

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material

The judgment states that Judge Eboso agrees with the ruling, implying a bench of two judges, but the coram lists only E.O. Obaga and no separate concurring opinion by Eboso appears in the text

minor

Typographical errors in party names in the cause title (e.g. 'CABINET SCIENCE AND TECHNOLOGY' and 'ETHICHS & ANTI-CORRUPTION COMMISSION')

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "National Land Commission v Afrison Export Import Limited & 10 others [2019] KEELC 4569 (KLR)", Case Analysis (2019). ELC Reference No. 1 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4569/eng@2019-02-01

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