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ELCStruck OutJudicial Review Application by Notice of Motion dated October 26, 2021 (Homa Bay)· [2022] KEELC 54 (KLR)

Jalango (The Project Manager, Kimira-Oluoch Small Holder Farm Improvement Project (KOSFIP) v Ministry of East African Community (EAC) & Regional Development & another; County Government of Homa Bay & 2 others (Interested Party) (Environment & Land Case 003 of 2020) [2022] KEELC 54 (KLR)

Environment and Land Court
28 April 2022
GOG.M.A Ong'ondo
2,061 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out a judicial review over a farm project transfer because the dispute wasn't about land or environment.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Homa Bay (Ong'ondo J) determined a preliminary objection by the 1st respondent, the Ministry of East African Community and Regional Development, against a judicial review application by Juma Robinson Jalango, Project Manager of the Kimira-Oluch Small Holder Farm Project (KOSFIP). The applicant, granted leave on September 29, 2021, sought certiorari to quash the Principal Secretary's letter of August 24, 2021 transferring management of KOSFIP to the Lake Basin Development Authority, together with the handing-over report, and mandamus compelling release of Kshs 45,400,000.00 in project allocations. The preliminary objection raised twin grounds: that the court lacked jurisdiction as the dispute concerned an administrative transfer between government agencies within one ministry, not an environment and land dispute, and that the applicant lacked capacity since his contract ended June 30, 2021. Only the applicant filed submissions; the respondents and 1st interested party supported the objection. The court, applying Mukisa Biscuits, Lillian S, Karisa Chengo and Samwel Kamau Macharia, held that the dispute over management, implementation and funding of the project fell outside Article 162(2)(b) and section 13 of the Environment and Land Court Act, leaving the court devoid of jurisdiction. Since jurisdiction is everything and wanting, the capacity issue could not be meaningfully determined. The preliminary objection was upheld, the judicial review application struck out, and, guided by Samwel Kamau Macharia, each party was ordered to bear its own costs.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over the dispute

Holding

The court lacked jurisdiction because the dispute concerned transfer of management and funding of a project between government agencies, not an environment and land dispute.

Reasoning

The court traced its jurisdiction to Article 162(2)(b) and section 13 of the Environment and Land Court Act, 2015. It held that the application, concerning management, implementation and allocation of KOSFIP funds, fell outside that purview. Citing Lillian S and Karisa Chengo, without jurisdiction the court could take no further step.

p. 5
02

Capacity of the applicant to institute the judicial review

Holding

Capacity did not require determination once want of jurisdiction was found.

Reasoning

The respondents argued the applicant's employment contract ended June 30, 2021, while he asserted he remained project manager. The court endorsed the reasoning that where jurisdiction is wanting, all other issues are meaningless, and therefore did not resolve capacity on the merits.

p. 5
03

Nature of a preliminary objection

Holding

A preliminary objection is a point of law capable of disposing of the suit and best taken at inception.

Reasoning

The court applied the Mukisa Biscuits definition and Kakuta Maimai Hamisi on threshold questions, holding the twin grounds of jurisdiction and capacity qualified for determination as a preliminary objection.

p. 4

Legal principles established

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  • Where jurisdiction is wanting, all other issues, including capacity, are incapable of determination

Court orders

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  1. 1.The 1st respondent's preliminary objection dated November 17, 2021 is upheld
  2. 2.The applicant's Judicial Review application by Notice of Motion dated October 26, 2021 is struck out
  3. 3.Each party to bear own costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b); Articles 60(1)(g) and 159(2)(c)
  • Environment and Land Court ActSection 13

Cases cited (8)

  • Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others
    [2013] eKLR
  • Mukisa Biscuits Manufacturing Company Limited v West End Distributors
    [1969] EA 696
  • Samwel Kamau Macharia and another v Kenya Commercial Bank Limited and others
    [2012] eKLR
  • Owners of Motor vessel “Lillian S” v Caltex Oil (Kenya) Limited
    [1989] KLR 1
  • Attorney General and another v Andrew Maina Githinji & another
    [2016] eKLR
  • Benson Ambuti Adega and 2 others v Kibos Distillers Limited and 5 others
    [2020] eKLR
  • Republic v Karisa Chengo & others
    [2017] eKLR
  • Daniel Kaloki Kioko & another v Willy Muasya Kioko & another
    [2009] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010 read with section 13 of the Environment and Land Court Act, 2015

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, "Jalango (The Project Manager, Kimira-Oluoch Small Holder Farm Improvement Project (KOSFIP) v Ministry of East African Community (EAC) & Regional Development & another; County Government of Homa Bay & 2 others (Interested Party) (Environment & Land Case 003 of 2020) [2022] KEELC 54 (KLR)", Case Analysis (2022). Judicial Review Application by Notice of Motion dated October 26, 2021 (Homa Bay). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/54/eng@2022-04-28

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