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ELCStruck OutAmended Petition dated 1/12/2021 (ELC, Thika)· [2022] KEELC 1162 (KLR)

Giciri Thuo & 5 others v National Land Commission & 4 others; Kenya Human Rights Commission (Interested Party) Dorcas Wairimu Kamau & 154 others (Intended Interested Parties) [2022] KEELC 1162 (KLR)

Environment and Land Court
21 February 2022
BEB M Eboso
4,478 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a petition challenging compulsory land acquisition because the landowners first had to use the statutory inquiry and tribunal process.

What this practically means

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Executive summary

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The six petitioners challenged Gazette Notice No. 10278 of 27/9/2021 by which the National Land Commission gave notice of the National Government's intention to compulsorily acquire land as additional land for Mama Ngina University College in Kiambu County. They alleged absence of public participation contrary to Article 10 and that the acquisition was not in the public interest contrary to Sections 107 and 111 of the Land Act, and sought declarations of unconstitutionality, certiorari to quash the notice, and a declaration that the 2nd respondent, a private entity, cannot compulsorily acquire land. The 2nd and 3rd respondents raised a preliminary objection contending that the ELC lacked jurisdiction because disputes on compulsory acquisition must first pass through the NLC inquiry under Section 112 of the Land Act and the Land Acquisition Tribunal under Sections 133A and 133C, with the ELC having only appellate jurisdiction on questions of law under Section 133D. The 1st, 4th and 5th respondents supported the objection. The petitioners argued the ELC had original jurisdiction under Article 162(2) and Section 13 of the ELC Act, that Part VIII of the Land Act is merely a compensation procedure, and that the Tribunal's jurisdiction is limited. The court held the single issue was whether the court had primary jurisdiction, found the statutory inquiry to be adjudicatory, applied Speaker v Karume, Benard Murage and the Court of Appeal's decision in Kibos Distillers, and held the jurisdiction of the court had been prematurely invoked. The petition was struck out with liberty to pursue the statutory fora, and each party was to bear its own costs.

Key legal issues

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01

Whether the ELC has primary jurisdiction to entertain a constitutional petition challenging a gazette notice of intention to compulsorily acquire land before the statutory inquiry and Tribunal process

Holding

No - the court's jurisdiction was prematurely invoked; the petitioners must first use the inquiry mechanism under Section 112 and the Land Acquisition Tribunal under Section 133A, with appeals to the ELC on questions of law only under Section 133D

Reasoning

Part VIII and VIIIA of the Land Act establish an adjudicatory framework: the NLC inquiry hears disputes on propriety and compensation, the Land Acquisition Tribunal hears appeals and even Article 23(2) and 47(3) complaints under Section 133C(8), and the ELC's role under Section 133D is appellate on questions of law only. Invoking the court's constitutional jurisdiction before exhausting these mechanisms is premature, following Speaker v Karume and Kibos Distillers.

p. 6
02

Whether the inquiry under Part VIII of the Land Act is a mere compensation procedure rather than a dispute resolution mechanism

Holding

It is an adjudicatory dispute resolution mechanism addressing propriety of the acquisition and compensation claims

Reasoning

The court rejected the petitioners' argument that Part VIII only provides a compensation procedure. The inquiry hears issues relating to propriety and claims for compensation, and Section 133C(1) and (2) provide a right of appeal to the Tribunal, confirming its adjudicatory character.

p. 5
03

The effect of multifaceted pleadings on jurisdiction

Holding

Inclusion of prayers outside a Tribunal's jurisdiction cannot confer jurisdiction on the ELC where the core dispute lies within a statutory mechanism

Reasoning

Relying on the Court of Appeal in Kibos Distillers, the court held that a litigant cannot draft pleadings to oust the jurisdiction of competent organs; original jurisdiction is not an ouster or all-inclusive clause, and where a higher court has pronounced on a question, that pronouncement prevails.

p. 6

Legal principles established

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  • Where Parliament has provided a clear statutory procedure for redress, that procedure must be strictly followed before resort to constitutional proceedings
  • Disputes relating to compulsory acquisition of land must, in the first instance, be ventilated through the NLC inquiry under Section 112 and the Land Acquisition Tribunal under Section 133A, with the ELC having only appellate jurisdiction on questions of law under Section 133D
  • Original jurisdiction does not oust the jurisdiction of other competent organs mandated by legislation to hear a dispute
  • A litigant cannot confer jurisdiction on a court or oust the jurisdiction of a competent organ through the art of drafting pleadings

Court orders

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  1. 1.The amended petition herein is struck out on the ground that the jurisdiction of this court has been invoked prematurely
  2. 2.The petitioners shall be at liberty to ventilate their grievances in the appropriate primary adjudication fora established by Parliament
  3. 3.Parties shall bear their respective costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 23(2), 23(3)
  • Constitution of Kenya, 2010Article 25
  • Constitution of Kenya, 2010Article 40(3)
  • Constitution of Kenya, 2010Article 42, 69, 70
  • Constitution of Kenya, 2010Article 47(3)
  • Constitution of Kenya, 2010Article 162(2)
  • Land Act, No. 6 of 2012Sections 107, 111, 112, 112-119, 120-133, 123, 127, 128, 133A, 133C, 133D, Part VIII, Part VIIIA
  • Environment and Land Court ActSection 13(1)-(7)
  • Fair Administrative Action Actframework referred to under Section 133C(8)

Cases cited (12)

  • Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
  • Jennifer Shamala v Law Society of Kenya & 15 others
    [2017] eKLR
  • Council of Governors v Attorney General & 12 others
    [2018] eKLR
  • Isiolo County Assembly Service Board & another v Principal Secretary Ministry of Devolution and Planning
    [2016] eKLR
  • Cortec Mining Kenya Limited v Cabinet Secretary, Ministry of Mining & 9 others
    [2017] eKLR
  • Benard Murage v Fine Serve Africa Limited & 3 others
    [2015] eKLR
  • Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others
    [2020] eKLR
  • Ken Kasinga v Daniel Kiplangat Kiru & 5 others
    [2015] eKLR
  • Benson Ambuti Adega v Kibos Sugar and Allied Industries Limited & 4 others
    [2019] eKLR
  • In the Matter of Interim Independent Electoral Commission
    Constitution Application Number 2 of 2011
Jurisdiction invoked
Article 162(2) of the Constitution; Sections 13(2)(b) and (7) of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Giciri Thuo & 5 others v National Land Commission & 4 others; Kenya Human Rights Commission (Interested Party) Dorcas Wairimu Kamau & 154 others (Intended Interested Parties) [2022] KEELC 1162 (KLR)", Case Analysis (2022). Amended Petition dated 1/12/2021 (ELC, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1162/eng@2022-02-21

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