Republic v Senior Principal Magistrate Shanzu & 5 others; Two Thirds Investment Limited (Interested Party); Ex-parte Kalama Said Kalama & 40 others [2020] KEELC 1443 (KLR)
The bottom line
#A Mombasa court quashed a magistrate's eviction orders because a criminal court cannot decide land ownership or evict people who were never heard.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Environment and Land Court over judicial review arising from land disputes originating in criminal proceedings
The ELC has jurisdiction over judicial review applications arising from disputes touching on land, even where the impugned decision was made by a criminal court.
Section 13(1) of the ELC Act grants original and appellate jurisdiction over all disputes relating to environment and land, and Section 13(7)(b) empowers the court to grant prerogative orders. Although the impugned proceedings were criminal, the underlying dispute was over land. The Constitution and the ELC Act do not exclude the court's jurisdiction where the dispute relates to land and environment, so the application was properly before the court.
Violation of natural justice and Article 50 by condemning non-parties unheard
The 1st respondent violated natural justice by making orders affecting the ex-parte applicants, who were not parties to the criminal case, without hearing them.
The ex-parte applicants were not parties to the criminal proceedings yet adverse orders, including eviction, were made against them. Courts require that persons likely to be affected by a decision be heard before it is made; failure to give notice and an opportunity to defend is a denial of natural justice. Such a decision breaches Article 50 of the Constitution and is void.
Ultra vires orders by a criminal court over land ownership subject of pending ELC suit
The 1st respondent, sitting as a criminal court, acted in excess of jurisdiction by making orders on land ownership, possession and issuance of title deeds while the dispute was pending before the ELC.
The magistrate, exercising criminal jurisdiction, ordered eviction and directed the County Government, National Government and National Land Commission to issue title deeds over the suit properties. Powers to determine ownership and dispositions of land vest in the Environment and Land Court. The magistrate had acknowledged the pending ELC suit; the orders should have been left to that court. An order without jurisdiction is a nullity.
Legal principles established
#- A decision made in breach of the rules of natural justice, condemning a person unheard, is void.
- An order made without jurisdiction is a nullity incapable of validation.
- Judicial review concerns the decision-making process, not the merits of the decision.
Court orders
#- 1.An order of certiorari issued to remove into the court and quash the decision of the 1st respondent made on 8th March 2019 in Shanzu Criminal Case No. 1092 of 2016 ordering the interested party to be assisted by the 3rd and 4th respondents in evicting the ex-parte applicants, other than the three named accused persons, from PLOT NOS. MN/II/6212 to 6369 and PLOT NO. MN/II/390
- 2.An order of prohibition issued forbidding the 3rd to 7th respondents from acting on the decision of the 1st respondent in respect of the suit properties with regard to the ex-parte applicants other than the three accused persons
- 3.A declaration that the judicial review orders are specific to the ex-parte applicants and do not apply to the three named accused persons in Shanzu Criminal Case No. 1092 of 2016
- 4.Each party to bear their own costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act No. 19 of 2011 (including Section 13(7)(b) power to grant prerogative orders)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Akivaga & 5 others v Commission on Administrative Justice; Coldstone Investment Limited & another (Interested Parties) (Judicial Review Application E006 of 2026) [2026] KEELC 2514 (KLR)[2026] KEELC 2514 (KLR)30 Apr 2026
- Nirestein v Director of Public Prosecution & 5 others (Environment & Land Petition E009 of 2024) [2025] KEELC 2870 (KLR)[2025] KEELC 2870 (KLR)27 Mar 2025
Cite this brief
#Cite this brief
Caselaw, "Republic v Senior Principal Magistrate Shanzu & 5 others; Two Thirds Investment Limited (Interested Party); Ex-parte Kalama Said Kalama & 40 others [2020] KEELC 1443 (KLR)", Case Analysis (2020). Judicial Review Application (substantive motion dated 8th April 2019), Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1443/eng@2020-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.