Pepe Limited v Kenya Railways Corporation & 3 others; Kenya Revenue Protection Services & another (Interested Parties) [2019] KEELC 4817 (KLR)
The bottom line
#Kenya's Environment and Land Court can hear commercial disputes too, as long as the real issue is how land is being used or occupied.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over a dispute framed as commercial/customs licensing
The court has jurisdiction because the cause of action concerns the use and occupation of land gazetted as a customs area/ICD; commercial character of the claim does not oust jurisdiction where the substratum is land use.
Article 162(2)(b) and Section 13(2) of the ELC Act confer jurisdiction over disputes relating to land use and instruments granting enforceable interests in land. The suit land has been used solely as a gazetted customs area and inland port since 1996. The Court of Appeal definition of land use applies, and even commercial claims fall within jurisdiction where the substratum is land use. Constitutional rights claims tied to land use also lie in this court.
Res judicata
The doctrine does not apply because the Petitioner was not shown to be a party to the prior suits or litigating under the same title.
Section 7 of the Civil Procedure Act requires the same matter directly and substantially in issue between the same parties or those claiming under them, litigating under the same title. No evidence established the Petitioner's participation in the cited SGR cases, and High Court judgments of co-ordinate status are only persuasive. The plea therefore fails.
Legal principles established
#- The ELC's jurisdiction under Section 13(2) of the ELC Act extends to commercial claims where the substratum is the use and occupation of land.
- High Court judgments are of equal status and only persuasive, not binding, on the ELC.
Court orders
#- 1.The Preliminary Objections raised by the 1st, 2nd and 3rd Respondents are dismissed
- 2.The Preliminary Objections are dismissed with costs
- 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, "Pepe Limited v Kenya Railways Corporation & 3 others; Kenya Revenue Protection Services & another (Interested Parties) [2019] KEELC 4817 (KLR)", Case Analysis (2019). Petition (Machakos ELC), Notice of Preliminary Objection dated 6th March, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4817/eng@2019-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.