Yahya Mohamed Suleiman v National Land Commission & another [2020] KEELC 1572 (KLR)
The bottom line
#A Kenyan court dismissed a bid to throw out a land compensation case, confirming the Environment and Land Court can hear compulsory acquisition claims.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over a claim for compensation for compulsory acquisition of Plot No. 1524/IV/MN
The court has jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the ELC Act, which includes power to grant compensation
The court traced its jurisdiction to Article 162(2)(b) of the Constitution, which mandated Parliament to establish a court with the status of the High Court to determine disputes relating to environment and land. Parliament enacted the Environment and Land Court Act No. 19 of 2011, whose Section 13 confers original and appellate jurisdiction and empowers the court to grant any relief deemed fit and just, including compensation. Since the dispute concerns compensation over compulsory acquisition of the suit plot, the objection on jurisdiction failed.
Whether the plea of sub judice under Section 6 of the Civil Procedure Act could be sustained via preliminary objection
No - the sub judice plea raised disputed issues of fact (parties, subject matter and reliefs in the Malindi suit) that could not be resolved on a preliminary objection
Applying the Mukisa Biscuit test, a preliminary objection must raise a pure point of law on assumed facts. Here the parties disagreed on whether the Malindi suit involved the same subject matter, parties and reliefs; the 2nd defendant sought to establish these contested facts through submissions, which the court held amounted to giving evidence from the bar. The proper mechanism was a formal application supported by evidence. Accordingly the objection could not stand and was dismissed with costs to the plaintiff.
Legal principles established
#- A preliminary objection cannot be sustained where facts have to be ascertained or where it is raised through submissions amounting to evidence from the bar
- The Environment and Land Court has jurisdiction over disputes relating to compensation for compulsory acquisition of land, including power to grant compensation as a relief
Court orders
#- 1.The preliminary objection dated 20th January 2020 is dismissed
- 2.The court declines to strike out the suit as requested
- 3.The plaintiff shall have costs of the preliminary objection
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Yahya Mohamed Suleiman v National Land Commission & another [2020] KEELC 1572 (KLR)", Case Analysis (2020). Mombasa ELC (suit number not stated in extract; subject of PO dated 20th January 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1572/eng@2020-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.