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ELCStruck OutNot stated in the judgment (Petition dated 2nd September 2021, Malindi)· [2022] KEELC 3141 (KLR)

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)

Environment and Land Court
7 June 2022
3,671 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Malindi (M.A. Odeny J) determines a Preliminary Objection dated 29th September 2021 raised by the 3rd Respondent against a Petition dated 2nd September 2021 in which the Petitioners, whose adverse possession claim over Plot No. 102 Malindi and its subdivisions is pending in Malindi ELC No. 54 of 2020 (OS), sought declarations of rights violations, a permanent injunction against arrest, detention and prosecution, stay or quashing of pending criminal cases, and compensatory damages for assault and torture. The 3rd Respondent and the Interested Parties argued that the ELC lacks jurisdiction over Bill of Rights claims arising from criminal proceedings, lacks supervisory powers over the DPP and subordinate courts, and that concurrency of civil and criminal proceedings is no bar to prosecution under Section 193A of the Criminal Procedure Code. The Petitioners admitted that some issues belong to the High Court and alternatively sought transfer. The court held that jurisdiction must be addressed first; that while the ELC handles quasi-criminal aspects of land disputes case by case, the prayers here predominantly fell to the High Court, notably compensation for torture and mental anguish. A prior judicial review dismissal of a similar application by one Petitioner remained subsisting and unappealed. The court dismissed the injunction application, upheld the Preliminary Objection, and struck out the Petition for lack of jurisdiction with costs to the Respondents.

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction to entertain a Petition seeking redress for violation of fundamental rights arising from criminal proceedings

Holding

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.

Reasoning

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.

p. 8
02

Whether pending criminal cases should be stayed or quashed because of concurrent civil proceedings

Holding

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.

Reasoning

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).

p. 4
03

Whether the Petition should be transferred to the High Court

Holding

The court did not transfer the matter but struck out the Petition for lack of jurisdiction.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 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. 2.The Application for injunction lacks merit and is dismissed
  3. 3.The Petition is struck out for lack of jurisdiction

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(1), (2)(b), (3), (4)
  • Constitution of Kenya, 2010Articles 42, 69, 70
  • Constitution of Kenya, 2010Article 165(2), (6)
  • Constitution of Kenya, 2010Articles 22 & 23
  • Constitution of Kenya, 2010Articles 157, 169, 244, 245
  • Environment and Land Court Act No. 19 of 2011Sections 13(1), (2), (3), (4), (7)
  • Magistrates' Court Act No. 26 of 2015Section 6
  • Criminal Procedure CodeSection 193A
  • Penal CodeSection 223(1)
  • Statute Law (Miscellaneous Amendments) Act 2012Schedule 2
  • Civil Procedure RulesOrder 21(1)

Cases cited (15)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors
    (1969) EA 696
  • The Owners of Motor Vessel "Lillian S" v Caltex Oil Kenya Ltd
    (1989)
  • Benard Nyamanya Mogaka & 2 others v Peter Momanyi Kebati & another; D.C.I Kisii (Interested Party)
    (2021) eKLR
  • Patrick Musimba v National Land Commission & 4 others
    (2015) eKLR
  • Sabina Nyambura Githina & another v Land Registrar, Thika Land Registry & 3 others; Real Capital Ltd (Interested Party)
    (2021) eKLR
  • Republic v Director of Public Prosecutions & another, Chief Magistrates' Court at Malindi & another (interested parties) Ex Parte Salim Omar Mohammed
    [2020] eKLR
  • Garder General Trading Limited v County Government of Kilifi, Department of Lands, Housing and Physical Planning & another
    [2018] eKLR
  • Communications Commission of Kenya & 5 others v Royal Media Services & 5 others
    [2014]
  • Iddi Ramadhan & 5 others v Director of Public Prosecution & Another
    (2020) eKLR
  • Judicial Service Commission v Speaker of the National Assembly & Another
    (2013) eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others
    (2015) eKLR
  • Offshore Trading Company Limited v The Attorney General & Others
    Constitution Petition No. E299 of 2020
  • Mohamed Shally Sese v Edward Mzee Karezi & others
  • National Land Commission v Afrison Export Import Limited & 10 others
    [2019] eKLR
  • Joel Kenduiywo v District Criminal Investigation Officer Nandi & 4 others
    [2019] eKLR
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "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.