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ELCPartially AllowedEnvironment & Land Petition 8 of 2022· [2022] KEELC 12801 (KLR)

Sharifow v Agriculture and Food Authority; Habco Agencies Limited & another (Interested Parties)

Environment and Land Court
30 September 2022
LMLucy N. Mbugua
1,051 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled it cannot hear disputes about public procurement compliance, sending a contested land lease case back to the High Court.

What this practically means

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Executive summary

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The petitioner, Abdirahid Abdul Sharifow, filed a petition at the Milimani High Court, Constitution and Human Rights Division, on February 18, 2022, challenging the Agriculture and Food Authority's decision to lease public land, LR No 209/10537 in Nairobi, to the two interested parties. He alleged the lease was effected without compliance with the Public Procurement and Asset Disposal Act and its 2020 Regulations, particularly regulation 180, and that the acting director general lacked authority; he invoked Articles 10 and 61 of the Constitution and international human rights instruments. On February 22, 2022, Mrima J directed that the file be transferred to the Environment and Land Court. The petitioner then moved by application dated June 21, 2022 seeking review and setting aside of those orders and transfer of the suit back to the High Court's Constitution and Human Rights Division, invoking his right to a hearing under Article 50. The application was unopposed; no responses or submissions were filed despite directions of July 5, 2022. Relying on Tullow Oil, Mbugua J nonetheless determined the application on its merits. Extracting the gravamen of the petition, the court held that although the orders sought concern long-term leases, the essence of the dispute is compliance with the PPAD Act, a matter outside the province of the Environment and Land Court and properly for the High Court. The application was allowed with no orders as to costs.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over a procurement/asset-disposal dispute

Holding

The court lacks jurisdiction because the essence of the dispute is non-compliance with the PPAD Act in the leasing of a public asset, which is a matter for the High Court

Reasoning

The court extracted the gravamen of the petition from paragraph B and found that although the final orders sought concern long-term leases, the substance of the complaint is the respondent's failure to follow the PPAD Act and its regulations in disposing of a public asset. Procurement and asset disposal compliance is not within the province of the Environment and Land Court, so the dispute belongs to the High Court.

p. 3

Legal principles established

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  • A court may determine an unopposed application on its merits rather than allow it simply by default
  • Where the gravamen of a dispute is compliance with the PPAD Act, that dispute falls to the High Court, not the Environment and Land Court

Court orders

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  1. 1.The application dated June 21, 2022 is allowed with no orders as to costs
  2. 2.By implication, the suit is for the High Court, consistent with the transfer sought

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50; Article 10(2)(a)(b) & (c); Article 61
  • Public Procurement and Asset Disposal Act (PPAD Act)Sections 2, 4, 68(3), 138, 179; Part XIV (sections 163-166)
  • The Public Procurement and Asset Disposal Regulations, 2020Regulations 176 to 202, particularly regulation 180
  • Universal Declaration of Human RightsArticle 17(1)
  • African Commission on Human and Peoples' Rights instrumentArticle 14

Cases cited (1)

  • Tullow Oil PCL & 3 others v Ps Ministry of Energy & 15 Others
    [2020] eKLR

    That an unopposed application should nonetheless be determined on its merits

Jurisdiction invoked
Environment and Land Court Act jurisdiction; the court found the dispute falls outside its province and belongs to the High Court

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, "Sharifow v Agriculture and Food Authority; Habco Agencies Limited & another (Interested Parties)", Case Analysis (2022). Environment & Land Petition 8 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12801/eng@2022-09-30

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