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ELCDismissedPetition dated 27th April, 2021· [2022] KEELC 2752 (KLR)

Moseti v Municipal Manager & another (Environment & Land Petition 6 of 2021) [2022] KEELC 2752 (KLR)

Environment and Land Court
11 May 2022
JOJ.M Onyango
2,832 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed it can hear constitutional challenges to demolition notices, so affected property owners should file land-related rights cases there, not the High Court.

What this practically means

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Executive summary

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The Petitioner, registered owner of L.R No. Kisii Municipality/Block 111/177, alleged that the Respondents issued a demolition notice dated 13th April, 2021 under section 20 of the Urban Areas and Cities Act, 2011 purporting to declare his structures unauthorized kiosks. He sought declarations on his rights under Articles 10(2), 20(2), 21(1), 27 and 40, declarations that the Respondents lacked mandate to approve developments or issue demolition notices, certiorari to quash the notice, a permanent injunction, and general damages. The Respondents filed a Notice of Preliminary Objection dated 12th May, 2021 contending that the Environment and Land Court lacked jurisdiction under Articles 23 and 165(2)(b) and (d), that the ELC cannot determine constitutional rights violations, and that the Petition and Notice of Motion were fatally defective. The court directed that the objection be heard first by written submissions. The Petitioner relied on Article 162(2)(b) and section 13 of the Environment and Land Court Act, submitting the demolition notice affected use and occupation of land and threatened his Article 40 rights. The Respondents argued the matter fell to the High Court under Article 165. The court held that Article 165(5) ousts the High Court's jurisdiction over matters reserved to the Article 162(2) courts, and that land rights are Bill of Rights rights within the ELC's exclusive domain. Relying on the USIU and Lillian 'S' decisions, the court found it had jurisdiction, dismissed the Preliminary Objection with costs to the Petitioner, and the Petition remains to be heard on the merits.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over constitutional claims relating to property and land use

Holding

The court has jurisdiction; the demolition notice dispute affects use and occupation of land and property rights under Article 40, matters within the ELC's exclusive domain under Article 162(2)(b) and section 13 of the ELC Act.

Reasoning

The court analysed Articles 162 and 165 and section 13 of the Environment and Land Court Act. Article 165(5) forbids the High Court from exercising jurisdiction over matters falling within the Article 162(2) courts. The Petitioner's complaint concerns a demolition notice affecting use and occupation of land and his Article 40 property rights, which falls squarely within the ELC's jurisdiction. Allowing the High Court to entertain such incidental constitutional matters would permit it to supervise a superior court contrary to Article 165(6).

p. 7

Legal principles established

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  • The Environment and Land Court has jurisdiction to hear constitutional claims concerning threats to property and land use, since Article 165(5) ousts the High Court's jurisdiction over matters within the Article 162(2) courts.
  • Constitutional provisions must be read harmoniously as an integrated whole when allocating jurisdiction between superior courts.

Court orders

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  1. 1.The Preliminary Objection dated 12th May, 2021 is dismissed
  2. 2.Costs of the Preliminary Objection to the Petitioner

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10(2), 20(2), 21(1), 23, 27, 40, 42, 69, 70, 162(2)(b), 165(2), (3), (5), (6)
  • Constitution of Kenya, 2010Fourth Schedule, section 8, part 2
  • Urban Areas and Cities Act, 2011section 20
  • Environment and Land Court Act, No. 19 of 2011section 13(1), (2), (3), 13(7)
  • Physical Planning Act No. 6 of 1996section 29

Cases cited (11)

  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    (2012) eKLR
  • Pepe Limited v Kenya Railways Corporation & 3 Others; Kenya Revenue Protection Services & Another Interested Parties
    (2019) eKLR
  • Kuria Kiarie Kiromo v Settlement Fund Trustees & 3 Others
    (2021) eKLR
  • The Speaker of the National Assembly v Hon. James Njenga Karume
    Civil Application No. 92 of 1992 (unreported)
  • Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai Estate & 4 Others
    (2013) eKLR
  • Centre for Human Rights and Democracy & Another v The Judges and Magistrates Vetting Board & 2 Others
  • Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & Another
    (2016) eKLR
  • Kakuta Maimai Hamisi v Peris Pesi Tobiko & 3 Others
    (2013) eKLR
  • The Owners of the Motor Vessel Lillian 'S' v Caltex Kenya Ltd
    [1989] KLR 1
  • United States International University (USIU) v Attorney General
    (2012) eKLR
  • Olum v Attorney General of Uganda
    [2002] 2 EA 508
Jurisdiction invoked
Article 162(2)(b) of the Constitution as read with section 13 of the Environment and Land Court Act, 2011

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, "Moseti v Municipal Manager & another (Environment & Land Petition 6 of 2021) [2022] KEELC 2752 (KLR)", Case Analysis (2022). Petition dated 27th April, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2752/eng@2022-05-11

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