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ELCDismissedPetition (Machakos ELC), Notice of Preliminary Objection dated 6th March, 2018· [2019] KEELC 4817 (KLR)

Pepe Limited v Kenya Railways Corporation & 3 others; Kenya Revenue Protection Services & another (Interested Parties) [2019] KEELC 4817 (KLR)

Environment and Land Court
31 January 2019
3,437 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling by the Environment and Land Court at Machakos (O.A. Angote, J) determined a Notice of Preliminary Objection dated 6th March 2018 filed by the 2nd Respondent and supported by the 1st and 3rd Respondents, seeking striking out of the Petitioner's Petition for want of jurisdiction and on grounds of res judicata. The Petitioner, registered proprietor of L.R. No. 337/196 at Athi River, complained that the Respondents had unlawfully and arbitrarily interfered with its constitutionally protected use and occupation of the land, which had been gazetted since 1996/1998 as a customs area, inland port and Transit Shed. The Respondents argued that the dispute was commercial, arising from a customs licence rather than land use, and that prior High Court judgments on the SGR rendered the suit res judicata. The court held that its jurisdiction flows from Article 162(2)(b) of the Constitution and Section 13 of the ELC Act; that the gazetted use of the land as a customs area and inland port since 1996 constitutes 'use' and 'occupation' of land; and that even purely commercial claims fall within its jurisdiction where the substratum is land use. On res judicata, there was no evidence the Petitioner was party to the cited suits, and co-ordinate High Court judgments were merely persuasive. The court found the Petition raises constitutional rights claims tied to land use within its jurisdiction, dismissed the Preliminary Objections with costs, and directed the Petition to proceed to trial.

Key legal issues

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01

Jurisdiction of the ELC over a dispute framed as commercial/customs licensing

Holding

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.

Reasoning

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.

p. 4
02

Res judicata

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Preliminary Objections raised by the 1st, 2nd and 3rd Respondents are dismissed
  2. 2.The Preliminary Objections are dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticle 40
  • Environment and Land Court ActSections 13(1), 13(2)
  • East African Community Customs Management ActSections 2, 12, 14
  • Physical Planning ActSections 30(6)(a) and (b)
  • Civil Procedure ActSection 7

Cases cited (4)

  • Co-operative Bank of Kenya Limited vs. Patrick Kangethe Njuguna & 5 others
    (2017) eKLR
  • Patrick Musimba vs. National Land Commission & 4 others
    (2016) eKLR
  • Okiya Omtata Okoiti & 2 others vs. Attorney General & 3 others
    (2014) eKLR
  • Republic vs. Kenya Ports Authority & Another Ex-parte Messina (K) Limited
    (2011) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

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, "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.