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ELCPartially AllowedPetition (filed 27th September 2016)· [2020] KEELC 2167 (KLR)

James Gathogo Kamau & 4 others v Attorney General & 4 others [2020] KEELC 2167 (KLR)

Environment and Land Court
11 June 2020
DOD. O. Ohungo
2,254 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru landowner whose workers were arrested while building a boundary wall won protection for his property, but arrest-related claims were struck out.

What this practically means

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Executive summary

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The petitioners, led by the registered proprietor of LR No. 30563 - IR No. 168553 in Nakuru County, petitioned against the Attorney General and other respondents alleging that the respondents' actions - including the arrest and detention of the 2nd to 5th petitioners who were constructing a boundary wall on the suit property in September 2016 - violated their constitutional rights under Articles 20, 23, 25, 27, 35, 40, 48 and 232. They sought permanent injunctions, declarations of infringement, and costs. The respondents entered appearance but filed no response or submissions, leaving the petition unchallenged. The court framed three issues: jurisdiction, infringement of the 1st petitioner's property rights, and availability of reliefs. On jurisdiction, applying Samuel Kamau Macharia and Kibos Distillers, the court held that claims of arrest, detention, dignity and police conduct under Articles 29, 49 and 243-245 fall outside the Environment and Land Court's jurisdiction under Article 162(2)(b) and Section 13 of the Environment and Land Court Act, and struck out prayers 2, 4 and 5. On the merits, the Certificate of Title dated 13th October 2015 established the 1st petitioner and Abdi Hassan as registered proprietors; with no challenge to title and no justification offered for the interference, the court found the 1st petitioner's Article 40 right to property infringed. Judgment was entered for the petitioners on prayers 1 and 3: a permanent injunction restraining the 2nd to 5th respondents from interfering with the suit property, a declaration of infringement of the 1st petitioner's property rights, and costs to the petitioners.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over constitutional claims of arrest, detention and dignity

Holding

Claims relating to arrest, detention, freedom and security of the person and police operations fall outside the court's jurisdiction and cannot be brought within it by pleading; prayers 2, 4 and 5 were struck out.

Reasoning

The court traced its jurisdiction to Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011, limited to environment and land disputes and related rights. Claims under Articles 29, 49 and 243-245 concerning arrest and police conduct do not fall within that mandate. Following Kibos Distillers and Mugendi, a litigant cannot confer jurisdiction through drafting, so multifaceted claims outside the mandate were struck out.

p. 3
02

Infringement of the 1st petitioner's right to property under Article 40

Holding

The 1st petitioner's right to property was infringed by the respondents' unjustified interference with his enjoyment of the suit property.

Reasoning

The Certificate of Title dated 13th October 2015 established the 1st petitioner and Abdi Hassan as registered proprietors of LR No. 30563 - IR No. 168553. The respondents did not deny arresting and detaining workers authorised to construct an approved boundary wall, and offered no justification for interfering with the petitioner's use of his property, nor any challenge to his title.

p. 3

Legal principles established

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  • A court's jurisdiction is conferred by the Constitution or legislation and cannot be expanded through pleadings or judicial craft
  • Original jurisdiction cannot be conferred by multifaceted or cleverly drafted pleadings
  • A registered proprietor of land is entitled to lawfully enjoy his property absent any challenge to his title

Court orders

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  1. 1.A permanent injunction restraining the 2nd, 3rd, 4th and 5th respondents, their officers, servants or agents from interfering with the parcel of land known as LR. No. 30563 - IR No. 168553 located in Nakuru County
  2. 2.A declaration that the 1st, 2nd, 3rd, 4th and 5th respondents have infringed on the 1st petitioner's property rights by restricting his enjoyment of the parcel of land known as LR. No. 30563-IR No. 168553 located in Nakuru County, a property that he jointly owns with Abdi Hassan
  3. 3.The costs of the petition awarded to the petitioners

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 20, 23, 25, 27, 29, 35, 40, 42, 47, 48, 49, 69, 70, 162(2)(b), 232, 243, 244, 245
  • Environment and Land Court Act, 2011Section 13

Cases cited (4)

  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • In the Matter of the Interim Independent Electoral Commission
    Constitutional Application Number 2 of 2011
  • Daniel N Mugendi v Kenyatta University & 3 others
    [2013] eKLR
  • Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others
    [2020] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011

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, "James Gathogo Kamau & 4 others v Attorney General & 4 others [2020] KEELC 2167 (KLR)", Case Analysis (2020). Petition (filed 27th September 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2167/eng@2020-06-11

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