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ELCDismissedNot stated in judgment· [2022] KEELC 3290 (KLR)

Mbatha v Director of Land Adjudication & 4 others (Petition 1 of 2022) [2022] KEELC 3290 (KLR)

Environment and Land Court
28 July 2022
LKLG Kimani
2,955 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed it can hear constitutional petitions protecting property rights in land, not just environmental claims.

What this practically means

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Executive summary

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The 5th respondent filed a preliminary objection dated March 14, 2022 seeking the striking out of the petitioner's petition and notice of motion dated February 21, 2022 on the ground that the Environment and Land Court lacked jurisdiction to adjudicate the petition as presented. The petition concerns land in Ikanga, Kitui County, which the petitioner alleged the 5th respondent, engaged during land adjudication, caused to be fraudulently merged with his own land; the petitioner sought, among other reliefs, an order compelling the 5th respondent to execute a transfer of parcel Ikanga/Ithumula/1696, together with a conservatory order protecting his possession. The 5th respondent argued, relying on section 13(3) of the Environment and Land Court Act and Samuel Kamau Macharia, that the court's constitutional jurisdiction was confined to environmental rights under articles 42, 69 and 70, and that the petitioner should proceed by ordinary suit or judicial review. The petitioner relied on the width of section 13 and on West Kenya Sugar and Paolo Di Maria. The court, applying Mukisa Biscuits and Lillian S, held that section 13(3) is not restrictive but inclusive; section 13(1) confers jurisdiction over all article 162(2)(b) disputes; article 165(5) ousts the High Court from such matters; and the Mutunga Rules include article 162(2) courts within the definition of 'High Court'. Following Omar Tahir Said and Mohammed Said, the court held the ELC can hear constitutional petitions founded on article 40 where the matter relates to land. The preliminary objection was dismissed with costs to the petitioner, payable by the 5th respondent. The substantive petition remains for determination.

Key legal issues

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01

Scope of the Environment and Land Court's jurisdiction over constitutional petitions

Holding

The ELC has jurisdiction to hear constitutional petitions relating to land, including rights under article 40; section 13(3) is inclusive, not restrictive.

Reasoning

Section 13(1) confers original jurisdiction over all disputes under article 162(2)(b) relating to environment and land. Section 13(3) merely emphasizes environmental rights under articles 42, 69 and 70 without excluding other rights. Article 165(5) ousts the High Court from article 162(2) matters, and the Mutunga Rules define 'High Court' to include article 162(2) courts, so petitions on land-related rights lie in the ELC. Precedent of the High Court supports this reading.

p. 4

Legal principles established

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  • Section 13(3) of the ELC Act does not limit the Environment and Land Court's jurisdiction to petitions under articles 42, 69 and 70; the court may hear constitutional petitions founded on any provision, including article 40, so long as the matter relates to environment and use and occupation of, and title to, land.

Court orders

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  1. 1.The preliminary objection dated March 14, 2022 is dismissed
  2. 2.Costs of the preliminary objection to the petitioner, to be paid by the 5th respondent

Authorities

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Legislation

  • Environment and Land Court Actsection 13(1), (2), (3), (7)(e)
  • Constitution of Kenya, 2010articles 22, 22(3), 23, 24, 40, 42, 69, 70, 162(2)(b), 165, 165(3), 165(5)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)rules 2, 4, 10

Cases cited (7)

  • Samuel Kamau Macharia & another v The Official Receiver and 2 others
  • West Kenya Sugar Company Limited v Busia Sugar Industries Limited & 2 others
    [2017] eKLR
  • Paolo Di Maria & 5 others v Alice M Kuria & 5 others
    [2021] eKLR
  • Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd
    [1969] EA 696
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Omar Tahir Said v Registrar of Titles & another
    [2013] eKLR
  • Mohammed Said v County Council of Nandi
    [2013] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and 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, "Mbatha v Director of Land Adjudication & 4 others (Petition 1 of 2022) [2022] KEELC 3290 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3290/eng@2022-07-28

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