Commission for Human Rights & Justice & another v Zia t/a Ibado Enterprises & 11 others
The bottom line
#Kenya's Environment and Land Court rejected an attempt to throw out a land title petition, confirming such objections must be pure points of law.
What this practically means
#Executive summary
#Key legal issues
#Pecuniary and administrative jurisdiction of the ELC
The objection fails; the suit was properly transferred by the High Court and the dispute over title to land falls within ELC jurisdiction under Article 162(2)(b) and Section 13(2) of the ELC Act.
The 5th respondent invoked section 101 of the Land Registration Act to challenge jurisdiction. The court confirmed the matter was transferred by Justice Ogola on 18th March 2021 in the 5th respondent's presence, without appeal or review. The dispute involves change of ownership and nature of title to Mombasa/Mwembelegeza/1473/R, squarely within ELC jurisdiction.
Competence and prematurity for want of leave
The ground is not a pure point of law as the 5th respondent failed to specify the contravened law and persons against whom leave should be sought.
The court applied the Mukisa Biscuit test: an objection requiring factual particularisation is not a proper preliminary objection. The 5th respondent did not identify the provision requiring leave or the persons against whom it should be obtained, so the ground failed as pleaded.
Res judicata and functus officio
Both grounds fail because they required evidence of the prior suits (ECM/ELC No. E.5 of 2021 and ELC 302 of 2017) which cannot be produced on a notice of preliminary objection.
Res judicata under Section 7 of the Civil Procedure Act requires proof that the same parties litigating under the same title had the issue finally determined. The petitioners were not party to the subordinate court suit, and ELC 302 of 2017 was concluded by consent without adjudication on the merits. Documents were not availed, so the court could not determine the objections without evidence.
Specificity of the constitutional petition and constitutional avoidance
The petition meets the Anarita Karimi Njeru specificity test, and a cause of action is disclosed against the 2nd respondent.
The petitioners specified the Articles violated and the manner of violation, satisfying the threshold. On constitutional avoidance, the petitioners explained the 2nd respondent's involvement in concealing deeds and subdividing the suit parcel, which discloses a cause of action against it.
Costs
The 5th respondent, having raised and failed on the preliminary objection, to pay the petitioners' costs.
The court's discretion on costs is rooted in Section 27 of the Civil Procedure Act and case law establishing that costs follow the event subject to judicial discretion. Since the 5th respondent caused the proceedings on the preliminary objection and failed, he should pay the petitioners' costs as successful parties.
Legal principles established
#- A preliminary objection must be a pure point of law assuming the correctness of all facts pleaded; it cannot be raised where facts need ascertainment or judicial discretion is required.
- Jurisdiction is everything for a court; without jurisdiction a court lacks power to proceed.
- The ELC has jurisdiction over disputes relating to use, occupation and title to land under Article 162(2)(b) and Section 13(2) of the ELC Act.
- Res judicata under Section 7 of the Civil Procedure Act requires evidence of the prior suits, which cannot be adduced via a notice of preliminary objection.
Court orders
#- 1.The notice of the 5th respondent's preliminary objection dated 22nd March 2021 is unmerited and is rejected
- 2.The 5th respondent to pay the petitioners' costs of the preliminary objection
- Jurisdiction invoked
- Article 162(2)(b) and (3) of the Constitution of Kenya 2010 and Section 13(2) of the ELC Act No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Commission for Human Rights & Justice & another v Zia t/a Ibado Enterprises & 11 others", Case Analysis (2023). Environment & Land Petition 16 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18949/eng@2023-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.