Makau & another v Nzioka
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Environment and Land Court has jurisdiction over the suit notwithstanding section 18(2) of the Land Registration Act and EMCA
The preliminary objections were premature; the issues require facts to be ascertained and the court has jurisdiction under article 162(2)(b) to deal with all the issues.
The court perused the amended plaint and found the claim revolves around unlawful acquisition of land and illegal erection of a mortuary. Issues such as whether the boundary is fixed, whether there was a valid sale, and whether NEMA licensing was proper cannot be determined without viva voce evidence. Following Mukhisa Biscuit and Taib Investments, a preliminary objection must be a pure point of law; here facts must be ascertained, and the environmental and land issues cannot be dealt with separately, so the ELC is the proper forum.
Legal principles established
#- A preliminary objection cannot be raised where facts have to be ascertained or judicial discretion exercised
- Where environmental and developmental issues in a suit cannot be dealt with separately, the Environment and Land Court under article 162(2)(b) can deal with all those issues
Court orders
#- 1.The two notices of preliminary objection dated February 21, 2022 and April 25, 2022 are disallowed as premature
- 2.Costs will be in the cause
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makau & another v Nzioka", Case Analysis (2022). Environment & Land Case E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/4856/eng@2022-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.