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ELCDismissedPetition dated 24th September 2021 (Mombasa ELC)· [2022] KEELC 1332 (KLR)

Sparkle Properties Limited v National Land Commission & another [2022] KEELC 1332 (KLR)

Environment and Land Court
22 February 2022
NMN.A. MATHEKA
1,188 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed it can hear compensation claims for land taken for projects like the SGR railway.

What this practically means

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Executive summary

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This was an application dated 2nd November 2021 by the 2nd Respondent (Kenya Railways Corporation) under Sections 1A(1), 3A and 63(e) of the Civil Procedure Act and Order 1 Rule 10(2) and Order 51 Rule 1 of the Civil Procedure Rules, seeking dismissal of the Petitioner's claim against it with costs. The applicant argued that the Environment and Land Court lacked jurisdiction because the Petition raised no bona fide constitutional issue, being an ordinary debt-collection/enforcement claim for compensation of Kshs. 192,015,974 for compulsory acquisition of land for the SGR project; and that under Sections 112, 117(1) and 125(1) of the Land Act the duty to pay compensation and interest lies with the National Land Commission, to which the applicant had already remitted Ksh. 1,223,949,263.20. The court, presided over by N.A. Matheka J, invoked Owners of the Motor Vessel 'Lillian S' and the Supreme Court's decision in Samuel Kamau Macharia, and held that its jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the ELC Act expressly extends to disputes relating to compulsory acquisition of land. The court held that whether the 2nd Respondent bears any duty to compensate are matters for full trial, dismissed the application, and ordered costs to be in the cause. Delivered at Mombasa on 22nd February 2022.

Key legal issues

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01

Whether the ELC has jurisdiction over the Petition challenging compensation for compulsory acquisition

Holding

The court has jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act, which expressly covers disputes relating to compulsory acquisition of land.

Reasoning

Section 13(2) of the Environment and Land Court Act confers power to hear disputes relating to compulsory acquisition of land, land administration and management, and compensation. The Petitioner's claim for compensation for compulsory acquisition of land for the SGR project falls squarely within that jurisdiction. The application was a preliminary objection in substance and was dismissed as unmerited.

p. 2
02

Whether the claim against the 2nd Respondent should be struck out at the preliminary stage for failure to disclose a cause of action

Holding

Whether the 2nd Respondent bears any legal duty to compensate is a matter for full trial, not a preliminary determination.

Reasoning

The 2nd Respondent argued it had remitted compensation funds to the National Land Commission and owed no duty to compensate. The court held that these are contested factual and legal issues that must be determined at full trial rather than on a preliminary application, and dismissed the application with costs in the cause.

p. 2

Legal principles established

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  • A court's jurisdiction flows from the Constitution or legislation, and it cannot expand its jurisdiction through judicial craft or innovation.
  • Jurisdiction must be raised at the earliest opportunity and decided immediately; without jurisdiction a court cannot take any further step.

Court orders

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  1. 1.The 2nd Respondent's application dated 2nd November 2021 is dismissed
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure Act Cap 21Sections 1A(1), 3A, 63(e)
  • Civil Procedure Rules 2010Order 1 Rule 10(2), Order 51 Rule 1
  • Constitution of KenyaArticles 162(2)(b), 162(3), 42, 69, 70
  • Environment and Land Court ActSection 13
  • Land ActSections 112, 117(1), 125(1), Part VIII

Cases cited (2)

  • Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd
    (1989) I KLR
  • Samuel Kamau Macharia & Another vs Kenya Commercial Bank & 2 Others
    Application No.2 of 2011
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 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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Cite this brief

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Cite this brief

Caselaw, "Sparkle Properties Limited v National Land Commission & another [2022] KEELC 1332 (KLR)", Case Analysis (2022). Petition dated 24th September 2021 (Mombasa ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1332/eng@2022-02-22

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