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ELCDismissedNot stated in the judgment (petition related to and consolidated with Petition No. 23 of 2019 and Petition No. 78 of 2019)· [2023] KEELC 100 (KLR)

Kenduiywo & 135 others v Cabinet Secretary of Ministry of Defence & 2 others (Environment and Land Constitutional Petition 11 of 2019) [2023] KEELC 100 (KLR)

Environment and Land Court of Kenya
19 January 2023
1,975 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling by E. O. Obaga J of the Environment and Land Court at Eldoret, delivered on 19th January 2023, on a notice of motion dated 16th March 2022 in a constitutional petition consolidated with Petition No. 23 of 2019 and Petition No. 78 of 2019. The Applicants sought conservatory orders against the 1st Respondent's trespass on LR No. 8406/6 in Uasin Gishu, orders compelling the 1st Respondent to reveal the identities of members of its force involved in the shooting of civilians on 25th December 2021, and orders restraining extra-judicial killings. The dispute concerned land originally owned by Oxbridge Farms Limited, purchased by Kapngetuny Farm Limited in 1971 and partly compulsorily acquired between 1970 and 1980 for the Eldoret Military Barracks. The court framed four issues. On the first, applying CREAW v Attorney General and Kevin K. Mwiti v Kenya School of Law, it held the Applicants failed to demonstrate a prima facie case: they did not show any interest in the land, conceded the compulsory acquisition, and relied on an unverified presidential directive. On the second issue, although the court condemned the killings of 25th December 2021 as unfortunate and viewed the video evidence, it held that the orders sought concerned matters of a criminal nature outside the jurisdiction conferred by the Environment and Land Court Act, the proper forum being the High Court. The third relief failed on the same jurisdictional ground and because the shooting was an isolated incident unlikely to recur. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether the Applicants disclosed a prima facie case for conservatory orders

Holding

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

Reasoning

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.

p. 4
02

Whether the court can compel the 1st Respondent to reveal identities of those involved in the shooting

Holding

The court declined, holding the request concerns issues of a criminal nature outside the jurisdiction conferred by the Environment and Land Court Act

Reasoning

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.

p. 5
03

Whether the court should restrain the 1st Respondent from extra-judicial killings

Holding

Refused: the court lacks jurisdiction over such orders, and in any event the 25th December 2021 incident was isolated with no indication of recurrence

Reasoning

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.

p. 5
04

Costs

Holding

The application was dismissed with no order as to costs

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Applicants' notice of motion dated 16th March 2022 is dismissed with no order as to costs

Authorities

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Legislation

  • Environment and Land Court ActNot specified
  • Constitution of Kenya, 2010Creation and jurisdiction of courts; rights to property, information, dignity
  • Land Compulsory Acquisition instruments - Gazette Notices No. 110 & 111 of 1979Not applicable

Cases cited (2)

  • Center for Rights Education and Awareness (CREAW) and 7 others –vs- Attorney General (2011) eKLR
    (2011) eKLR
  • Kevin K. Mwiti & others – Vs- Kenya School of Law & others
Jurisdiction invoked
Environment and Land Court Act (jurisdiction of the Environment and Land Court); original constitutional petition jurisdiction

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, "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.