Asaa & 61 others v O. C. S, Malindi Police Station & 2 others; Said & another (Interested Parties) (Environment & Land Petition 21 of 2021) [2022] KEELC 3141 (KLR)
The bottom line
#The Environment and Land Court in Malindi struck out a rights petition because most of the remedies sought belong to the High Court, not the land court.
What this practically means
#Executive summary
#Key legal issues
#Whether the Environment and Land Court has jurisdiction to entertain a Petition seeking redress for violation of fundamental rights arising from criminal proceedings
No. The prayers sought predominantly fall within the ambit of the High Court; the ELC's jurisdiction under Section 13(3) is limited to rights relating to a clean and healthy environment under Articles 42, 69 and 70.
The court traced the constitutional and statutory framework under Article 162(2)(b) and Section 13 of the ELC Act. Although the ELC has broad jurisdiction including quasi-criminal aspects of land disputes, the Petition here sought to bar prosecutions for offences such as threatening to kill and incitement to violence, and compensation for assault and torture, which are matters for the High Court. Only the forcible detainer charge and the adverse possession claim fall within ELC jurisdiction.
Whether pending criminal cases should be stayed or quashed because of concurrent civil proceedings
No. Section 193A of the Criminal Procedure Code provides that concurrency of civil and criminal proceedings is not a ground for stay, prohibition or delay of criminal proceedings.
The court noted that the Petitioners sought an open-ended bar on prosecution unrelated to land use and occupation. Their similar application had already been dismissed in judicial review proceedings which they did not appeal, so that decision was subsisting and binding. The best course was to await determination of Malindi ELC No. 54 of 2020 (OS).
Whether the Petition should be transferred to the High Court
The court did not transfer the matter but struck out the Petition for lack of jurisdiction.
The Petitioners' own request for transfer was an admission that the predominant orders sought fall within the High Court's ambit. Rather than transfer, the court exercised its finding that the Petition predominantly lay outside its jurisdiction and struck it out with costs.
Legal principles established
#- Jurisdiction must be determined first; a court without jurisdiction should not take any further step
- The ELC has broad jurisdiction over environment and land disputes and may handle quasi-criminal matters such as land fraud and contempt, but on a case-by-case basis
- A civil proceeding does not stay or bar concurrent criminal proceedings
- The ELC lacks jurisdiction to grant compensation for torture, mental anguish and character assassination
- If charges were purely on forcible detainer, the ELC could stay proceedings pending determination of the ownership dispute
Court orders
#- 1.The Preliminary Objection succeeds to the extent that the prayers sought in the Petition predominantly fall within the ambit of the High Court
- 2.The Application for injunction lacks merit and is dismissed
- 3.The Petition is struck out for lack of jurisdiction
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Sections 13(1), (2), (3) & (7) of the Environment and Land Court Act No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Republic v Inspector General of Police & 3 others; Asanyo & another (Exparte Applicants) (Environment and Land Judicial Review Case E002 of 2024) [2025] KEELC 1260 (KLR)[2025] KEELC 1260 (KLR)17 Mar 2025
- Wanje v County Land Registrar Kilifi County & 10 others[2022] KEELC 4851 (KLR)23 Sept 2022followed
Cite this brief
#Cite this brief
Caselaw, "Asaa & 61 others v O. C. S, Malindi Police Station & 2 others; Said & another (Interested Parties) (Environment & Land Petition 21 of 2021) [2022] KEELC 3141 (KLR)", Case Analysis (2022). Not stated in the judgment (Petition dated 2nd September 2021, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3141/eng@2022-06-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.