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ELCOtherUndated Petition filed August 2, 2021, amended May 24, 2022 (Eldoret Environment and Land Court)· [2024] KEELC 399 (KLR)

Petitioner v 1st Respondent & others (Preliminary Objection ruling re Lembus/Torongo/301)

Environment and Land Court
24 January 2024
4,127 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed a community group's public-land petition to proceed to full hearing, rejecting every attempt to throw it out early.

What this practically means

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Executive summary

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This is a ruling on a preliminary objection in an Environment and Land Court petition at Eldoret in which the Petitioner, acting in public interest as leader of Baringo Human Rights Defenders Community Based Organization, sought declarations that the acquisition of land parcel Lembus/Torongo/301 by the deceased original 1st Respondent (since substituted by his widow) was irregular, illegal and null and void, cancellation of the title, reversion of the land to the public, and compensation for items lost during an alleged unlawful eviction. The 1st Respondent raised a preliminary objection contending the petition was extra-jurisdictional, that the Petitioner lacked locus standi, that the petition failed the Anarita Karimi Njeru and Mumo Matemu threshold, that abuse of office claims could not survive the deceased, that the exhaustion doctrine and sub-judice rule applied, and that the suit was an illegality. The National Land Commission, as 2nd Interested Party, supported the petition save for compensation, contending the land was public land reserved for the Torongo Agricultural Demonstration Farm and therefore unprotected under article 40. The court framed five issues and resolved all against the objector: the ELC has jurisdiction under article 162(2)(b) and section 13 of the ELC Act and the pending succession cause does not oust it; the Petitioner has standing under articles 22 and 258; the petition meets the constitutional threshold; the exhaustion doctrine does not apply because the dispute involves challenge of title on grounds of fraud beyond the Co-operative Tribunal; and the fraud allegations cannot be sustained against the widow. However, the objection failed the Mukisa Biscuits pure-point-of-law test and was dismissed with no order as to costs. The petition now proceeds to hearing on the merits.

Key legal issues

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01

Jurisdiction of the ELC and effect of a pending succession cause

Holding

The court has jurisdiction under Article 162(2)(b) and section 13 of the ELC Act; the pending succession cause does not oust it because ownership of the suit property must first be settled

Reasoning

Article 162(2)(b) and section 13(2) of the Environment and Land Court Act confer power to hear disputes relating to title, land administration and public land. A petition is a competent mode of commencing such disputes. Although a succession matter over the suit property is pending, ownership disputes must be resolved before the succession court can determine what assets form the estate.

p. 5
02

Locus standi of the Petitioner

Holding

The Petitioner, acting in public interest through a community-based organization, has standing under articles 22 and 258 and the Mumo Matemu decision

Reasoning

The 2010 Constitution fundamentally transformed standing; any person may sue in the public interest or in the interest of a group or class. The Petitioner sued as leader of Baringo Human Rights Defenders CBO championing community rights, alleging the suit property is public land. Following Mumo Matemu, standing requirements of demonstrating personal interest are obsolete.

p. 6
03

Sufficiency of the constitutional petition against the Anarita Karimi Njeru test

Holding

The petition meets the threshold; striking out is unwarranted at this stage

Reasoning

The Anarita Karimi Njeru test requires the petitioner to set out with precision the complaint, the provisions said to be infringed and the manner of infringement. The amended petition alleged fraudulent registration of public property contrary to section 75 of the former Constitution, invoking articles 40, 47 and 64. What remains is proof of those allegations at the hearing.

p. 7
04

Sustainability of abuse of office/fraud claims against the widow of the deceased

Holding

Fraud and abuse of office allegations against the deceased cannot be sustained against his widow

Reasoning

Allegations of fraud must be specifically pleaded and strictly proved, and in Peter Owade Ogwang v Jared Obiero Ouya the Court of Appeal held that where the case against a deceased defendant abates, the fraud allegations cannot stand against others without a nexus. The claim here is personal to the deceased and cannot be attributed to or proved against his widow.

p. 8
05

Exhaustion of remedies via the Co-operative Tribunal

Holding

The exhaustion doctrine does not apply; the dispute is not one contemplated by section 76 of the Co-operative Societies Act

Reasoning

Section 76 of the Co-operative Societies Act refers disputes concerning the business of a co-operative society among members or between members and the society to the Tribunal. This dispute challenges title to alleged public land on grounds of fraud, which exceeds the Tribunal's jurisdiction and lies squarely with the ELC.

p. 9
06

Whether the preliminary objection satisfies the Mukisa Biscuits test

Holding

The objection fails the pure-point-of-law test; the fraud ground requires ascertainment of facts and cannot be resolved at the interlocutory stage

Reasoning

Per Mukisa Biscuits, a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded are correct, without ascertainment of facts or exercise of discretion. The only surviving ground concerns fraud allegations against a deceased person, which requires hearing evidence from the parties.

p. 9

Legal principles established

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  • A land/environment dispute may be commenced by constitutional petition and the Environment and Land Court has jurisdiction over it
  • Articles 22 and 258 of the Constitution broadly confer standing, including on persons acting in the public interest
  • A petition that identifies the infringed constitutional provision and the manner of infringement meets the Anarita Karimi Njeru threshold
  • Allegations of fraud/abuse of office against a deceased person cannot be attributed to or proved against his widow or personal representative
  • A challenge to title on grounds of fraud involving alleged public land is beyond the Co-operative Tribunal and falls within the ELC's jurisdiction, so the exhaustion doctrine does not apply

Court orders

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  1. 1.The Preliminary Objection is dismissed.
  2. 2.No order as to costs.
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010 and section 13 of the Environment and Land Court Act, 2011

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, "Petitioner v 1st Respondent & others (Preliminary Objection ruling re Lembus/Torongo/301)", Case Analysis (2024). Undated Petition filed August 2, 2021, amended May 24, 2022 (Eldoret Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/399/eng@2024-01-24

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