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ELCStruck OutCase number not stated in the judgment; Notice of Motion Application dated 30th December 2022 within a Constitutional Petition· [2023] KEELC 304 (KLR)

Gitata (suing as the administrator of the Estate of Robert Gitata Gichohi - Deceased) v National Land Commission & 2 others (Environment & Land Petition E064 of 2022) [2023] KEELC 304 (KLR)

Environment and Land Court
26 January 2023
5,618 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that disputes over compulsory land acquisition must first go to the Land Acquisition Tribunal, not the High Court or ELC directly.

What this practically means

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Executive summary

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By a Notice of Motion dated 30th December 2022 lodged within a Constitutional Petition, Charles Jeremy Gichohi Gitata, administrator of the Estate of Robert Gitata Gichohi, sought two temporary injunctions restraining the 1st and 2nd Respondents from executing Gazette Notice No. 3946 of 2020, Gazette Notice No. 7660 and a Notice of Taking Possession published in the Standard Newspaper on 20th December 2022, all concerning the compulsory acquisition of part of Land Reference No. 7022/27, plus an order of mandamus compelling the 1st Respondent to correct the gazette notices via Corrigenda as to the acreage (0.042Ha or 0.19Ha) and the registered owner. Counsel argued no statutory notices were served, no inquiry under Section 112 of the Land Act was held, and compensation of KES 58,305,000 (as independently valued, against the Respondents' KES 21,850,000) had not been paid. The 2nd Respondent objected on jurisdiction, invoking Section 133A-C of the Land Act establishing the Land Acquisition Tribunal. None of the Respondents filed responses, and the 1st and 3rd Respondents' counsel did not appear at the hearing. The court framed three issues: jurisdiction, prima facie case, and whether mandamus could issue interlocutorily. Holding that all disputes on the process of compulsory acquisition fall within the Tribunal's mandate under Section 133C, with the Environment and Land Court exercising only appellate jurisdiction, and applying the exhaustion doctrine per Geoffrey Muthinja, Okal and Mumba, the court held it was divested of jurisdiction. No prima facie case was established, and mandamus could not issue on an interlocutory application. The Petition and application were struck out without costs.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over disputes concerning the process of compulsory acquisition

Holding

The court lacked jurisdiction; such disputes fall within the competence of the Land Acquisition Tribunal under Section 133C of the Land Act, 2012, to which the ELC stands only in an appellate position.

Reasoning

The court reproduced Sections 112, 133A-133E of the Land Act, 2012(2016) and held that disputes about notices, the inquiry and computation of compensation are for the Tribunal. Section 133D confers appellate jurisdiction on the ELC only after a Tribunal determination. Relying on the exhaustion doctrine and Article 159(2)(c), and the decisions in Muthinja, Okal and Mumba, the court held it would be inappropriate to usurp the Tribunal's mandate and declined jurisdiction.

p. 9
02

Whether a prima facie case was established

Holding

No prima facie case was established; the grievances did not disclose a right infringed warranting protection before the appropriate forum.

Reasoning

Applying the definition in Mrao Ltd v First American Bank Ltd, the court held that a prima facie case requires an apparently infringed right ventilated before the appropriate competent forum. Since the court had found itself divested of competence to entertain the dispute in the first instance, the circumstances in the petition and application did not constitute a prima facie case whatsoever.

p. 11
03

Whether mandamus can issue at the foot of an interlocutory application

Holding

No; mandamus is of a precipitate and substantive nature and cannot issue on an interlocutory application in the manner sought.

Reasoning

The court acknowledged that a superior court seized of a constitutional petition may grant reliefs including mandamus under Article 23 of the Constitution, and cited County Government of Nyeri v Cecilia Wangechi Ndungu. However, such an order can only be granted after due evaluation of the merits of each case, and being substantive in nature it could not issue interlocutorily. Even had jurisdiction existed, the mandamus would not have issued.

p. 12

Legal principles established

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  • All disputes pertaining to the process of compulsory acquisition of land, including issuance of notices, the inquiry and computation of compensation, fall within the statutory mandate of the Land Acquisition Tribunal under Section 133C of the Land Act, and the Environment and Land Court has only appellate jurisdiction over the Tribunal.
  • Where an act of Parliament has established a statutory forum for the determination of a particular dispute, a claimant must first approach that forum; the doctrine of exhaustion requires disputes to be handled first before established statutory bodies.
  • An order of mandamus is substantive in nature and cannot issue on an interlocutory application.
  • A court without jurisdiction must down its tools at the earliest moment.

Court orders

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  1. 1.The Petition and the Application dated the 30th December 2022 be and are hereby struck out, albeit without costs.
  2. 2.It is so ordered.

Authorities

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Legislation

  • Land Act, 2012 (2016)Section 112
  • Land Act, 2012 (2016)Section 133A
  • Land Act, 2012 (2016)Section 133B
  • Land Act, 2012 (2016)Section 133C
  • Land Act, 2012 (2016)Section 133D
  • Land Act, 2012 (2016)Section 133E
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 23
  • Constitution of Kenya, 2010Article 159(2)(c)
  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Articles 23(2) and 47(3) (as referenced within Section 133C(8) of the Land Act)

Cases cited (8)

  • Geoffrey Muthinja & another versus Samuel Muguna Henry & 1756 others
    [2015] eKLR
  • Bethwell Allan Omondi Okal versus Telkom (Founders) Ltd
    (2017) eKLR
  • International Centre for Policy and Conflict & 4 others vs The Hon. Uhuru Kenyatta and others
    Petition No. 552 of 2012
  • Speaker of National Assembly vs Njenga Karume
    [2008] 1 KLR 425
  • Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme)
    [2019] eKLR
  • Mrao Ltd versus First American Bank Ltd and Others
    (2003) eKLR
  • County Government of Nyeri & another versus Cecilia Wangechi Ndungu
    [2015] eKLR
  • Owners of Motor Vessel Lilian S versus Caltex K Ltd
    (1989) eKLR
Jurisdiction invoked
Constitution of Kenya 2010 (Articles 22, 23, 40 and 159(2)(c) discussed); Land Act, 2012 (2016) Sections 112, 133A, 133B, 133C, 133D and 133E

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, "Gitata (suing as the administrator of the Estate of Robert Gitata Gichohi - Deceased) v National Land Commission & 2 others (Environment & Land Petition E064 of 2022) [2023] KEELC 304 (KLR)", Case Analysis (2023). Case number not stated in the judgment; Notice of Motion Application dated 30th December 2022 within a Constitutional Petition. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/304/eng@2023-01-26

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