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ELCDismissedPetition dated 27th July 2017· [2019] KEELC 4848 (KLR)

Abudulkadir Sayyed Ahmed v Office of the County Criminal Investigation (CCIO) & 3 others; Omar Salim Nassir Suleiman (Interested Party) [2019] KEELC 4848 (KLR)

Environment and Land Court
18 January 2019
JOJ.O. Olola
1,387 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court can hear constitutional rights claims tied to land disputes, so you needn't always go to the High Court.

What this practically means

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Executive summary

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The Petitioner, Abdulkadir Sayyed Ahmed, petitioned the Office of the County Criminal Investigation, the Directorate of Criminal Investigations, the Principal Magistrates Court Lamu and the Attorney General, with Omar Sahim Nassir Suleiman alias Bagdam named as Interested Party. He sought declarations that his rights under Articles 29, 35, 47, 49 and 50 had been infringed by the Interested Party's allegations of trespass and the resultant investigations, a declaration that he is a joint lessee of parcel No. CR 54824 in Lamu County, damages and costs, together with conservatory orders restraining his arrest and prosecution. The Interested Party raised a preliminary objection contending that the Environment and Land Court lacked jurisdiction to grant relief under Article 23, such jurisdiction residing in the High Court. Justice J.O. Olola considered Section 13 of the Environment and Land Court Act, enacted under Article 162(2)(b), holding that the Court has jurisdiction over rights violations in so far as they relate to environment and land, and that Section 13(3) does not confine the Court to Articles 42, 69 and 70 where the right asserted furthers a land dispute. Since prayer (b) was plainly a land matter within the Court's jurisdiction, the objection could not dispose of the entire petition. The preliminary objection was dismissed with costs to the Petitioner. The substantive petition remains pending for hearing.

Key legal issues

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01

Jurisdiction of the ELC over rights-based petitions

Holding

The ELC has jurisdiction to determine infringements of fundamental rights and freedoms in so far as they relate to environment and land.

Reasoning

The court reasoned from Article 162(2)(b) and Section 13 of the Environment and Land Court Act. Section 13(3) expressly preserves redress for rights violations relating to environment and land, and Section 13(7) empowers the Court to grant any just relief, including declarations and damages. Section 13(3) does not confine the Court to Articles 42, 69 and 70 where the violation is in furtherance of a land dispute.

p. 3
02

Nature of a preliminary objection

Holding

A preliminary objection must dispose of the entire matter and cannot be sustained where facts require ascertainment.

Reasoning

Because prayer (b) of the Petition — a declaration of joint leasehold — is squarely a land matter within the Court's jurisdiction, and the Interested Party did not contend that this prayer fell outside jurisdiction, the objection could not dispose of the whole petition and therefore failed.

p. 3

Legal principles established

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  • The Environment and Land Court has jurisdiction to hear and determine violations of fundamental rights and freedoms in so far as they relate to environment and land.
  • Section 13(3) of the Environment and Land Court Act does not limit the Court to Articles 42, 69 and 70 where the right asserted furthers a land or environment dispute.
  • A preliminary objection must be capable of disposing of the entire matter and cannot be raised where facts remain to be ascertained.

Court orders

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  1. 1.The Preliminary Objection dated 29th November 2017 and filed on 30th November 2017 is dismissed
  2. 2.Costs of the Preliminary Objection to the Petitioner

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23, 29, 35, 40, 42, 47, 49, 50, 69, 70, 157, 159, 162(2)(b), 165(3), 165(5)(b)
  • Environment and Land Court ActSections 4, 13(2), 13(3), 13(7)

Cases cited (1)

  • Owners of the Motor Vessel "Lillian S" –vs- Caltex Oil (Kenya) Ltd
    (1889) 1 KLR
Jurisdiction invoked
Articles 22, 23 and 165(3) of the Constitution; Article 162(2)(b) and the Environment and Land Court Act, Section 13

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, "Abudulkadir Sayyed Ahmed v Office of the County Criminal Investigation (CCIO) & 3 others; Omar Salim Nassir Suleiman (Interested Party) [2019] KEELC 4848 (KLR)", Case Analysis (2019). Petition dated 27th July 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4848/eng@2019-01-18

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