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ELCDismissedMalindi ELC Petition No. 19 of 2016 (consolidated with Mombasa ELC Petition No. 291 of 2016)· [2020] KEELC 3477 (KLR)

Malindi Law Society v Attorney General & 2 others [2020] KEELC 3477 (KLR)

Environment and Land Court of Kenya
28 February 2020
6,257 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled it cannot pull cases out of the High Court, dismissing companies' bids to join a major land-law challenge.

What this practically means

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Executive summary

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This judgment of a three-judge Bench of the Environment and Land Court at Malindi, constituted by the Chief Justice under Article 165(4) to hear Malindi ELC Petition No. 19 of 2016 (Malindi Law Society v Attorney General), consolidated with Mombasa ELC Petition No. 291 of 2016 (Mombasa Law Society v Attorney General & others), determined three post-hearing applications filed after the Court had reserved judgment. Kakuzi PLC, Del Monte Kenya Ltd and Kakuzi Division Development Association sought joinder as interested parties and, in the case of the first two, consolidation of their pending Nairobi High Court constitutional petitions (Nos. 255 of 2018 and 48 of 2019) with the consolidated Petitions so that they could be heard on the constitutionality of Section 15 of the National Land Commission Act before judgment. All parties to the consolidated Petitions opposed the applications. The Court framed three issues. First, it held that Rule 17 of the Mutunga Rules vests the power to consolidate petitions in the Court hearing them, so the applicants need not have approached the Chief Justice. Second, and decisively, relying on Karisa Chengo and the Supreme Court's affirmance, the Court held that the ELC and the High Court, though of equal status, exercise separate and distinct jurisdictions; the ELC therefore lacked power to transfer or consolidate petitions pending before the High Court, an attempt at which 'may precipitate judicial anarchy.' Third, having so found, the Court declined to consider whether common questions of law or fact existed. All three applications were dismissed with no orders as to costs. The underlying constitutional challenge to Sections 38, 47, 48 and 98 of the Land Laws (Amendment) Act, 2016 remains for determination in the consolidated Petitions.

Key legal issues

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01

Whether the empanelled Bench could entertain new parties and fresh consolidation applications after reserving judgment

Holding

The Court found no bar: the Chief Justice had in fact empanelled the Bench to hear Petition No. 19 of 2016 only, and Rule 17 of the Mutunga Rules vests the consolidation power in the Court hearing the petition, so applicants could apply directly to it.

Reasoning

The Court traced the empanelment under Article 165(4), noting the Mombasa Petition was never part of the CJ's empanelment but was consolidated by consent. Rule 17 of the Mutunga Rules empowers the Court on its own motion or a party's application to consolidate several petitions. Hence the applicants did not need to go through the Chief Justice; the question of whether to consolidate remained for the Court itself.

p. 6
02

Whether the ELC has jurisdiction to transfer and consolidate High Court petitions with those pending before it

Holding

No. The ELC and High Court, though of equal status, exercise distinct jurisdictions; the ELC cannot take over or transfer petitions invoking the High Court's jurisdiction under Article 165(3)(d).

Reasoning

Relying on Karisa Chengo (Court of Appeal) and the Supreme Court's decision in Republic v Karisa Chengo, the Court held that ELC and ELRC are not the High Court and cannot hear matters reserved to the High Court's jurisdiction, just as Article 165(5) precludes the High Court from hearing ELC/ELRC matters. The petitions sought to be consolidated were pending before the High Court at Nairobi, and this Court lacked power to transfer them to itself.

p. 8
03

Whether there were common questions of law or fact warranting further consolidation

Holding

The Court declined to determine this, having found it lacked jurisdiction to effect the consolidation in the first place.

Reasoning

Having held that it possessed no jurisdiction to transfer and consolidate the High Court petitions, the Court considered it unnecessary and outside its province to examine whether common questions of law or fact existed that would render consolidation desirable.

p. 8

Legal principles established

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  • The Environment and Land Court and the High Court are equal in status but exercise separate and distinct jurisdictions; neither can take over matters reserved to the other
  • The power to consolidate petitions under the Mutunga Rules vests in the Court hearing the petition; applicants need not approach the Chief Justice for consolidation

Court orders

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  1. 1.The applications filed separately by Kakuzi PLC and Del Monte Kenya Ltd are disallowed
  2. 2.The application by Kakuzi Division Development Association, being hinged on the success of the Kakuzi PLC application, also fails
  3. 3.All three applications are dismissed
  4. 4.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22(3), 24(1), 50, 67(2)(e), 68(c)(i), 161(2), 162(2)(b), 162(3), 165(3), 165(4), 165(6), 165(5)
  • Land Laws (Amendment) Act, 2016Sections 2, 38, 47, 48, 61(c), 98
  • Land Registration Act, 2012Section 2
  • National Land Commission Act, 2012Sections 15, 15(1), 15(3)(b), 13
  • Land Act, 2012Sections 13, 152
  • Judicial Service ActSection 5
  • Environment and Land Court Act, Act No. 19 of 2011Section 13(1), 13(2)
  • Constitution of Kenya (Protection of Rights And Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rule 17
  • Limitation of Actions ActSection 7

Cases cited (9)

  • Owners of the Motor Vessel "Lillian S" –vs- Caltex Oil (Kenya) Ltd
    (1989) KLR 1
  • Phoenix of E.A. Assurance Company Ltd –vs- S.M. Thiga t/a Newspaper Services Ltd
    (2019) eKLR
  • Karisa Chengo & 2 Others –vs- Republic
    (Criminal Appeal Nos. 44, 45 and 76 of 2014) 2015 eKLR
  • Republic –vs- Karisa Chengo & 2 Others
    (Supreme Court Petition No. 5 of 2015) 2017 eKLR
  • Guaranty Trust Company of New York –vs- Hannay & Company
    (1915) 2KB 536
  • Garthwaite –vs- Garthwaite
    (1964) 2 All ER 233
  • Kakuzi PLC –vs- Attorney General & Others (Nairobi Constitutional Petition No. 255 of 2018)
  • Del Monte Kenya Ltd –vs- National Land Commission & Another (Nairobi High Court Constitutional Petition No. 48 of 2019)
  • Kakuzi PLC –vs- The National Land Commission & Others (Nairobi HCCC No. 225 of 2018)
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act; Bench empanelled under Article 165(4) by the Chief Justice

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, "Malindi Law Society v Attorney General & 2 others [2020] KEELC 3477 (KLR)", Case Analysis (2020). Malindi ELC Petition No. 19 of 2016 (consolidated with Mombasa ELC Petition No. 291 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3477/eng@2020-02-28

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