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ELCOtherThika ELC Petition (2022) - following Thika ELC Petition Number E010 of 2021· [2022] KEELC 3951 (KLR)

Thuo & 160 others v National Land Commission & 4 others; Kenya Human Rights Commission (Interested Party) (Environment & Land Petition E004 of 2022) [2022] KEELC 3951 (KLR)

Environment and Land Court
5 July 2022
BEB M Eboso
2,875 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court ruled it can hear a land acquisition challenge when the Land Acquisition Tribunal does not yet exist.

What this practically means

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Executive summary

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The petitioners challenged Gazette Notice No 10278 of September 27, 2021, by which the National Land Commission gave notice of intent to compulsorily acquire private land as additional land for Mama Ngina University College in Kiambu County, alleging absence of public participation under Article 10 and non-compliance with Sections 107 and 111 of the Land Act. A predecessor petition (Thika ELC Petition No E010 of 2021) had been struck out on a preliminary objection for premature invocation of the court's jurisdiction, the petitioners being directed to the public inquiry under Section 112 and the Land Acquisition Tribunal under Section 133A of the Land Act. The 2nd and 3rd respondents then raised a preliminary objection to the present petition on grounds of non-exhaustion and failure to seek exemption under Section 9(4) of the Fair Administrative Action Act. The court held that although exhaustion of statutory mechanisms is settled law, the mechanism must be available: the Attorney General confirmed the Land Acquisition Tribunal had not been constituted. Referring the petitioners to a non-existent Tribunal would not serve the interests of justice; the court therefore assumed jurisdiction under Article 162(2)(b) and Section 13 of the Environment and Land Court Act. Prior leave under Section 9(4) was held unnecessary where the alternative forum is not constituted. The preliminary objection was rejected, with costs in the cause, and the court indicated it would refer the dispute to the Tribunal if it is constituted before the petition is concluded.

Key legal issues

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01

Exhaustion of alternative dispute resolution mechanisms

Holding

The petition is properly before the court because the Land Acquisition Tribunal is not constituted and therefore unavailable

Reasoning

Although exhaustion of statutory dispute resolution mechanisms is settled law, the mechanism must be available. The Attorney General confirmed that the Land Acquisition Tribunal had not been constituted. Referring the petitioners to a non-existent Tribunal would not serve the interests of justice, so the court invoked its own jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act.

p. 5
02

Leave under Section 9(4) of the Fair Administrative Action Act

Holding

Prior leave is unnecessary where the alternative forum is not constituted

Reasoning

Leave under Section 9(4) is required only where an alternative mechanism exists but the litigant seeks exemption from exhausting it. Since the Tribunal is yet to be constituted, the alternative mechanism is not available and the question of seeking leave does not arise.

p. 5
03

Future referral to the Tribunal

Holding

If the Tribunal is constituted before the dispute is concluded, the court will refer the dispute to it

Reasoning

The court acknowledged the Land Act vests primary jurisdiction in the Land Acquisition Tribunal and indicated it would refer the dispute if the Tribunal becomes operational before the petition is disposed of.

p. 6

Legal principles established

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  • Where an alternative dispute resolution forum exists but is yet to be constituted, exhaustion does not apply and the court retains jurisdiction

Court orders

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  1. 1.Preliminary objection dated May 11, 2022 rejected
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Land ActSections 107, 111, 112, 133A, 133C
  • Fair Administrative Action ActSections 9(2), 9(4)
  • Environment and Land Court ActSections 13(1) and (2)
  • Constitution of KenyaArticles 10, 23(2), 47(3), 162(2)(b)

Cases cited (3)

  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
  • Benard Murage v Fine Serve Africa Limited & 3 others
    [2015] eKLR
  • Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others
    [2020] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution as read with Sections 13(1) and (2) 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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Later judgments citing this (1)

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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, "Thuo & 160 others v National Land Commission & 4 others; Kenya Human Rights Commission (Interested Party) (Environment & Land Petition E004 of 2022) [2022] KEELC 3951 (KLR)", Case Analysis (2022). Thika ELC Petition (2022) - following Thika ELC Petition Number E010 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3951/eng@2022-07-05

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