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ELCStruck OutPetition (number not stated in judgment)· [2024] KEELC 3762 (KLR)

Kochipp Agency Limited v National Land Commission & 3 others; Premier Bank Limited (Formerly known as First Community Bank Ltd ) (Interested Party) (Environment and Planning Petition E002 of 2024) [2024] KEELC 3762 (KLR)

Environment and Land Court
7 May 2024
MMM.D. Mwangi
1,109 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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If your Kenyan land was compulsorily acquired, you must first take your dispute to the Land Acquisition Tribunal before going to court.

What this practically means

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Executive summary

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Kochipp Agency Ltd, the registered owner of L.R. No. 209/11889 measuring 1.0 ha, petitioned the Environment and Land Court after discovering in October 2023 that Kenya Railways Corporation was constructing a wall engulfing its property. It learnt that the land had allegedly been acquired from Dupoto/Darfur Settlement Welfare Scheme and surrendered to the National Land Commission for compulsory acquisition, without the Petitioner's involvement or compensation. The Petitioner sought a declaration that its right to property under Article 40 of the Constitution had been violated by the NLC, and an order directing NLC to compensate it. Kenya Railways Corporation raised a preliminary objection, supported by the 3rd Respondent, contending that the Court lacked jurisdiction because the Petitioner had not exhausted the statutory dispute resolution mechanisms under Sections 112 and 133C of the Land Act, and ought first to have moved the Land Acquisition Tribunal established under Section 133A. M.D. Mwangi J agreed, holding that the Court's jurisdiction in compulsory acquisition matters is largely appellate, and that a person dissatisfied with an NLC decision must apply to the Tribunal within thirty days, with power in the Tribunal to extend time. Relying on Giciri Thuo, Njenga Karume, Geoffrey Muthinja Kabiru and Murage, the court held that where a statutory dispute resolution mechanism exists it must be strictly followed, courts being fora of last resort. The petition was struck out for violating the doctrine of exhaustion, but the Petitioner was spared the costs of the petition given the early stage at which proceedings terminated.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over unexhausted compulsory acquisition disputes

Holding

The Court lacks jurisdiction to entertain the petition at first instance; the Petitioner should have applied to the Land Acquisition Tribunal under Section 133C of the Land Act

Reasoning

The Land Act establishes the Land Acquisition Tribunal under Section 133A to hear disputes of persons dissatisfied with NLC decisions in compulsory acquisition. Section 133C requires a dissatisfied person to apply to the Tribunal within thirty days, extendable. The Court's jurisdiction in compulsory acquisition matters is appellate, and the Petitioner bypassed the statutory mechanism.

p. 3
02

Doctrine of exhaustion

Holding

The doctrine applies and the petition is struck out

Reasoning

Relying on Geoffrey Muthinja Kabiru, the court held that where a dispute resolution mechanism exists outside courts, it must be exhausted before invoking the court's jurisdiction; courts are fora of last resort, in line with Article 159 of the Constitution on alternative dispute resolution, a position upheld by the Supreme Court in Murage.

p. 3

Legal principles established

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  • Where there is a clear procedure for redress of any particular grievance prescribed under the Constitution or Statute, that procedure must be strictly followed
  • A court's jurisdiction over disputes on compulsory acquisition of land is largely appellate, so a party must first exhaust the Land Acquisition Tribunal mechanism

Court orders

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  1. 1.The Petition is struck out for violating the doctrine of exhaustion
  2. 2.The Petitioner is spared the costs of the Petition

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 159
  • Land ActSections 112, 133A and 133C

Cases cited (4)

  • Giciri Thuo & 4 others -vs- NLC & 6 others
    [2021] eKLR
  • Speaker of the National Assembly -vs- Njenga Karume
    [1992] eKLR
  • Geoffrey Muthiga Kabiru & 2 Others -vs- Samuel Munga Henry & 1756 others
    (2015) eKLR
  • Bernard Murage vs. Fine Serve Africa Ltd & 3 others
    [2015] eKLR
Jurisdiction invoked
Article 40 of the Constitution of Kenya (as invoked by the Petitioner); jurisdiction contested under Sections 112 & 133C of the Land 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, "Kochipp Agency Limited v National Land Commission & 3 others; Premier Bank Limited (Formerly known as First Community Bank Ltd ) (Interested Party) (Environment and Planning Petition E002 of 2024) [2024] KEELC 3762 (KLR)", Case Analysis (2024). Petition (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3762/eng@2024-05-07

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