Malindi Law Society v Attorney General & 2 others [2020] KEELC 3477 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the empanelled Bench could entertain new parties and fresh consolidation applications after reserving judgment
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.
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.
Whether the ELC has jurisdiction to transfer and consolidate High Court petitions with those pending before it
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).
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.
Whether there were common questions of law or fact warranting further consolidation
The Court declined to determine this, having found it lacked jurisdiction to effect the consolidation in the first place.
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.
Legal principles established
#- 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
#- 1.The applications filed separately by Kakuzi PLC and Del Monte Kenya Ltd are disallowed
- 2.The application by Kakuzi Division Development Association, being hinged on the success of the Kakuzi PLC application, also fails
- 3.All three applications are dismissed
- 4.No orders as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.