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)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the Environment and Land Court over disputes concerning the process of compulsory acquisition
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.
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.
Whether a prima facie case was established
No prima facie case was established; the grievances did not disclose a right infringed warranting protection before the appropriate forum.
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.
Whether mandamus can issue at the foot of an interlocutory application
No; mandamus is of a precipitate and substantive nature and cannot issue on an interlocutory application in the manner sought.
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.
Legal principles established
#- 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
#- 1.The Petition and the Application dated the 30th December 2022 be and are hereby struck out, albeit without costs.
- 2.It is so ordered.
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#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.