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ELCOtherEnvironment & Land Petition 20 of 2022 (Formerly Malindi Pet No. 11 of 2020)· [2023] KEELC 18885 (KLR)

Kakuzi PLC v Attorney General & another; Kakuzi Division Development Association (Interested Party)

Environment and Land Court
12 July 2023
1,805 words in judgment
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The bottom line

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Kenya's Environment and Land Court ended Kakuzi's challenge to NLC land-injustice powers, ruling the question had already been decided and further litigation would be pointless.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (LN Mbugua, J) dealt with two issues: an oral application by the Interested Party that the petition was moot and that a three-judge bench should be empaneled, and the Interested Party's application dated January 30, 2023 seeking transfer of the suit to the ELC at Murang'a. Kakuzi PLC had petitioned for declarations that Sections 15(3)(b)(i) and (ii) of the National Land Commission Act were null and void for contravening Articles 24, 27(1), 40 and 50(1) of the Constitution, and for quashing of ongoing NLC historical land injustice proceedings against it. The Interested Party argued that a Malindi three-judge bench had already upheld the constitutionality of the relevant provisions. The court held that while decisions of concurrent jurisdiction do not bind a single judge, stare decisis counsels following them unless clearly wrong, and that parallel interpretation of the same provision would cause confusion. Finding that the amended petition added nothing beyond the application of Section 15 of the NLC Act, the court held continued litigation would be academic and the issues moot. Transfer was consequently unnecessary. The petition and the transfer application were both marked as spent, subsisting orders including status quo orders were discharged, the decision was extended to ELC Petition 21 of 2022, and each party was ordered to bear its own costs.

Key legal issues

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01

Whether the decision of a three-judge bench of the ELC binds a single judge of the same court

Holding

It does not bind, being a decision of concurrent jurisdiction, but should be followed unless clearly wrong

Reasoning

Relying on Vadag Establishment and Mohamed Abushiri, the court held that one judge and a multi-judge bench of the High Court exercise the same jurisdiction; horizontally, decisions of courts of the same rank are persuasive only, yet stare decisis counsels following them absent clear error.

p. 4
02

Whether the Petition is moot

Holding

Yes; the constitutionality of Section 15 of the NLC Act was already determined by the Malindi bench, so continued litigation would be academic

Reasoning

The amended petition added only prayer (b), but all prayers still related to the application of Section 15 of the NLC Act. Since the Malindi three-judge bench had declared the corresponding provisions constitutional, adjudicating the same question again would produce parallel interpretations and confusion.

p. 4

Legal principles established

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  • A decision of a High Court judge, whether sitting alone or on a bench of more judges, has the same precedential value; courts of concurrent jurisdiction are not bound by each other but should follow decisions of equal jurisdiction unless clearly wrong
  • Parallel interpretation of the constitutionality of a statutory provision by courts of concurrent jurisdiction would bring about confusion and should be avoided

Court orders

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  1. 1.The Application dated January 30, 2023 is marked as Spent
  2. 2.This Petition (ELC Petition 20 of 2022 NBI) is marked as Spent
  3. 3.The decision herein is to apply to the file ELC Petition 21 of 2022
  4. 4.Any orders subsisting herein including orders of status quo are discharged
  5. 5.Each party is to bear their own costs of the suit

Authorities

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Legislation

  • Constitution of KenyaArticles 24, 27(1), 40, 50(1), 67(3)
  • National Land Commission ActSection 15(3)(b)(i) and (ii)
  • Land Laws (Amendment) Act 2016Sections 38, 48, 61, 98
  • Limitation of Actions ActSection 7

Cases cited (5)

  • Malindi Law Society v Attorney General & 2 others
    [2020] eKLR

    Decision of three-judge bench on consolidation; litigation history

  • Malindi Law Society & 12 Others (All Suing as Officers of the Mombasa Law Society on their behalf and on behalf of the membership of the society) v Attorney General & 2 others (Petition 19 & 291 of 2016 (Consolidated))
    [2021] KEELC 4748 (KLR)

    Three-judge bench held Sections 38, 48, 61 and 98 of the Land Laws Amendment Act 2016 valid and constitutional

  • Vadag Establishment v Y A Shretta & Another, Nairobi High Court (Commercial & Admiralty Division) Misc High Court Civil Suit No 559 of 2011
    cited in Wycliffe Ambetsa Oparanya & 2 others v Director Of Public Prosecutions & another [2016] eKLR

    One judge and multi-judge benches of the High Court have equal precedential value

  • Wycliffe Ambetsa Oparanya & 2 others v Director Of Public Prosecutions & another
    [2016] eKLR

    Vehicle for the Vadag Establishment quotation on stare decisis

  • Mohammed Abushiri Mukullu v Minister for Lands and Settlement & 6 others
    [2015] eKLR

    Stare decisis: decisions of concurrent jurisdiction persuasive, to be followed unless clearly wrong

Jurisdiction invoked
Original constitutional jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (petition challenging constitutionality of Section 15 of the National Land Commission Act)

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, "Kakuzi PLC v Attorney General & another; Kakuzi Division Development Association (Interested Party)", Case Analysis (2023). Environment & Land Petition 20 of 2022 (Formerly Malindi Pet No. 11 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18885/eng@2023-07-12

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