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ELCStruck OutEnvironment and Land Judicial Review Case E1 of 2023· [2023] KEELC 17649 (KLR)

Republic v Director of Public Prosecutions & 2 others; Mungai (Exparte Applicant); Ndirangu (Interested Party)

Environment and Land Court
24 May 2023
2,626 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a bid to block criminal charges, ruling it cannot hear cases whose real issue is criminal conduct, not land.

What this practically means

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Executive summary

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The ex-parte applicant, Luka Ngugi Mungai, moved the Environment and Land Court at Nakuru by Notice of Motion dated 27 February 2023 seeking an order of prohibition restraining the Director of Public Prosecutions, the OCS Lanet Police Station and the In-Charge of Ndege-Ndimu Police Post from instituting criminal proceedings against him. He alleged that the interested party, in cohorts with the police officers, sought to abuse the criminal justice system to address a boundary dispute: the interested party had allegedly attempted to close a public road separating their parcels (Dundori/Lanet Block 2/745 and 2/579), and the police threatened to arrest the applicant on trumped-up malicious damage charges to perpetuate the closure. The 3rd respondent deponed that he received and investigated a genuine malicious damage report. The respondents opposed, arguing the DPP's independence under Article 157, that anticipatory bail was the proper remedy, that administrative-action remedies under Article 47 and the Fair Administrative Action Act lay only after completion of the act, and that the ELC lacked jurisdiction since Section 13 of the ELC Act does not confer judicial review powers. The court framed three issues: jurisdiction, entitlement to the orders, and costs. It held that although the ELC can hear judicial review matters relating to the use and occupation of, and title to, land, the dominant theme here was the threatened arrest and prosecution for alleged criminal damage to property, which is not land. Granting the orders would usurp criminal jurisdiction. The court struck out the motion for want of jurisdiction and made no orders as to costs.

Key legal issues

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01

Whether the ELC has jurisdiction to grant prohibition restraining criminal proceedings

Holding

The court struck out the motion for want of jurisdiction; the dominant theme was criminal (malicious damage allegations), not land use or title

Reasoning

The court accepted that it has original jurisdiction over land matters and can hear judicial review applications relating to land under Article 162(2)(b) and Section 13 of the ELC Act. However, it found the dominant theme here was the threatened arrest and prosecution of the applicant for malicious damage to property, which is not land. Exercising jurisdiction would usurp criminal jurisdiction belonging to other courts.

p. 6
02

Whether alternative remedies had to be exhausted

Holding

Anticipatory bail was a viable alternative remedy, but it had to be sought in a court with criminal jurisdiction

Reasoning

The respondents argued the applicant had not exhausted alternative remedies and that anticipatory bail was the salutary remedy. The court agreed anticipatory bail seemed a good alternative but noted it must be sought in a court with criminal jurisdiction, reinforcing its own lack of jurisdiction over the substance of the complaint.

p. 6

Legal principles established

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  • The ELC has jurisdiction over judicial review matters only where they concern the use and occupation of, and title to, land
  • Where the dominant theme of a dispute is criminal conduct, the ELC lacks jurisdiction even if land is the background

Court orders

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  1. 1.Notice of motion application dated 27/2/2023 struck out for want of jurisdiction on the part of the court
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 157
  • Constitution of Kenya, 2010Article 47
  • Environment and Land Court Act, 2012Section 13
  • Fair Administrative Action ActSection 9
  • Public Roads and Roads of Access ActSection 2

Cases cited (4)

  • Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
    [1989] eKLR

    Jurisdiction is everything; a court must down tools the moment it finds it lacks jurisdiction

  • Wilfred Limiri Mukuchia & 11 Others v County Government of Meru
    2019 eKLR

    Relied on by ex-parte applicant regarding public road rights

  • Dellian Langata Limited v Symon Thuo Muhia & 4 Others
    Nairobi CA No 144 of 2014 [2018] eKLR

    Relied on by ex-parte applicant regarding public road rights

  • Law Society of Kenya v Office of the Attorney General & Another
    2021 KEHC 454

    Cited by respondents on judicial restraint and non-interference with independent institutions

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2012

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, "Republic v Director of Public Prosecutions & 2 others; Mungai (Exparte Applicant); Ndirangu (Interested Party)", Case Analysis (2023). Environment and Land Judicial Review Case E1 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17649/eng@2023-05-24

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