Kenduiywo & 135 others v Cabinet Secretary of Ministry of Defence & 2 others (Environment and Land Constitutional Petition 11 of 2019) [2023] KEELC 100 (KLR)
The bottom line
#The Environment and Land Court dismissed land and shooting-related orders because the applicants had no proven land interest and the court cannot handle criminal matters.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicants disclosed a prima facie case for conservatory orders
No prima facie case was established; the Applicants did not show their interest in the suit property, conceding it was compulsorily acquired by the Commissioner of Lands on behalf of the Ministry of Defence
The court traced the history of LR No. 8406/6: purchased by Kapngetuny Farm Limited in 1971 and partly compulsorily acquired for the Ministry of Defence. The Applicants did not state whether they were shareholders of Kapngetuny Farm Limited, conceded the compulsory acquisition, and produced nothing to show occupation of the remainder. Their claim rested on an alleged presidential directive whose implementation was unclear. The claim was therefore not clearly set out and failed the prima facie case threshold from CREAW and Kevin K. Mwiti.
Whether the court can compel the 1st Respondent to reveal identities of those involved in the shooting
The court declined, holding the request concerns issues of a criminal nature outside the jurisdiction conferred by the Environment and Land Court Act
The court acknowledged the gravity of the killings of 25th December 2021, having viewed the video clips and photographs of three dead men, but held that the 2010 Constitution designated the jurisdiction of each court. The Environment and Land Court's jurisdiction flows from the Environment and Land Court Act, which confers no criminal jurisdiction. Orders compelling disclosure regarding the shooting should be sought from the High Court.
Whether the court should restrain the 1st Respondent from extra-judicial killings
Refused: the court lacks jurisdiction over such orders, and in any event the 25th December 2021 incident was isolated with no indication of recurrence
The court adopted its reasoning on jurisdiction from the second issue. Even assuming jurisdiction, the evidence showed the events of 25th December 2021 were an isolated incident; there was no indication that the perpetrators intended similar action, so a prospective restraining order was not warranted.
Costs
The application was dismissed with no order as to costs
Having found the application devoid of merit apart from the unfortunate loss of lives, the court dismissed it and made no order as to costs.
Legal principles established
#- A party seeking conservatory orders in a constitutional petition must demonstrate a prima facie case with a likelihood of success and real danger of prejudice if the orders are not granted
- The Environment and Land Court lacks jurisdiction to entertain issues of a criminal nature; such matters belong to the High Court
- A prima facie case is not one that must succeed at the hearing of the main case but one that discloses arguable constitutional issues
Court orders
#- 1.The Applicants' notice of motion dated 16th March 2022 is dismissed with no order as to costs
- Jurisdiction invoked
- Environment and Land Court Act (jurisdiction of the Environment and Land Court); original constitutional petition jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenduiywo & 135 others v Cabinet Secretary of Ministry of Defence & 2 others (Environment and Land Constitutional Petition 11 of 2019) [2023] KEELC 100 (KLR)", Case Analysis (2023). Not stated in the judgment (petition related to and consolidated with Petition No. 23 of 2019 and Petition No. 78 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/100/eng@2023-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.