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ELCStruck OutNot stated in excerpt· [2024] KEELC 5229 (KLR)

Saha & 45 others v National Land Commission & 2 others (Environment & Land Petition E016 of 2023) [2024] KEELC 5229 (KLR)

Environment and Land Court
10 July 2024
SKS. M. Kibunja
1,504 words in judgment
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The bottom line

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The Environment and Land Court struck out a land petition because the claimants had to first wait for the National Land Commission to decide their pending historical injustice complaint.

What this practically means

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Executive summary

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The 3rd respondent filed a preliminary objection dated 11 October 2023 arguing that the petition offended the doctrine of exhaustion because the petitioners had admitted, in their pleadings, that their historical land injustice claim over the suit property was pending before the National Land Commission, the 1st respondent, which under Article 67(2) of the Constitution may investigate present or historical land injustices and recommend redress. The court framed three issues: whether it had jurisdiction under the doctrine of exhaustion, what orders to issue, and costs. The petitioners contended the court had jurisdiction, relying on authority that neither the Constitution nor the National Land Commission Act ousts the court's jurisdiction, and argued their alleged violations were current, arising from demarcation and allocation of the land by the 2nd and 3rd respondents. The court, however, found from the amended petition and supporting affidavits that the petitioners' root of claim was occupation of the land for three generations since 1900 - a historical injustice claim - and that they had lodged complaints with the Commission in October 2017, September 2021 and November 2022 which remained undetermined when the petition was filed on 12 June 2023. The claimed rights violations were not genuine fundamental-rights breaches capable of the exhaustion exception. The objection met the Mukhisa Biscuit definition of a preliminary objection. The court upheld the objection, struck out the petition for being premature, and directed each party to bear their own costs. Judgment delivered virtually on 10 July 2024 by S. M. Kibunja, J, in Mombasa.

Key legal issues

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01

Whether the doctrine of exhaustion bars the petition

Holding

The petition is barred; the petitioners must await determination of their pending complaints before the National Land Commission

Reasoning

The petitioners admitted lodging historical injustice claims over the same land with the 1st respondent in 2017, 2021 and 2022, which remained undetermined when the petition was filed. Their claim is rooted in generations of occupation since 1900 (historical injustice), not current fundamental-rights violations, so the exhaustion exemptions do not apply. Proceeding would usurp the Commission's Article 67(2) mandate.

p. 4
02

Whether the objection qualifies as a preliminary objection

Holding

It does, as it raises a pure question of law on jurisdiction decidable without factual evidence

Reasoning

The court applied the Mukhisa Biscuit definition: a preliminary objection must rest on clear implications of law from the pleadings, not disputed facts. Here the pendency of complaints before the National Land Commission was drawn from the pleadings and undisputed in submissions, and upholding the objection would dispose of the petition entirely.

p. 3

Legal principles established

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  • Where a suit primarily seeks to enforce fundamental rights and the violations are not mere bootstraps, it is not barred by the doctrine of exhaustion
  • A preliminary objection on jurisdiction is proper where it can be determined without factual evidence

Court orders

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  1. 1.The 3rd respondent's preliminary objection dated the 11th October 2023 has merit and is upheld
  2. 2.The petition is struck out
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 67(2)

Cases cited (6)

  • Henry Wambega & 733 others v The Hon. Attorney General & 9 others
  • Jeremiah Memba Ocharo v Evangeline Njoka & 3 others
    [2022] eKLR
  • Republic v Independent Electoral and Boundaries Commission (IEBC) & others, ex parte The National Super Alliance (NASA)
    eKLR
  • Kenya Ports Authority v William Odhiambo Ramogi & 8 others
    [2019] eKLR (Mombasa Civil Appeal No. 166 of 2018)
  • Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others
    [2018] eKLR
  • Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
Jurisdiction invoked
Article 67(2) of the Constitution 2010 (issue of whether ELC has jurisdiction under doctrine of exhaustion)

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, "Saha & 45 others v National Land Commission & 2 others (Environment & Land Petition E016 of 2023) [2024] KEELC 5229 (KLR)", Case Analysis (2024). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5229/eng@2024-07-10

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