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ELCStruck Out· [2024] KEELC 5482 (KLR)

Mulu & 55 others v National Land Commission & 2 others (Environment & Land Petition E001 of 2023) [2024] KEELC 5482 (KLR)

Environment and Land Court
22 July 2024
5,772 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Landowners disputing compulsory acquisition compensation in Kenya must first go to the Land Acquisition Tribunal, not the Environment and Land Court, or risk having their case struck out.

What this practically means

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Executive summary

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The Petitioners, Project Affected Persons (PAPs) in the compulsory acquisition of land for the Kibwezi-Kitui-Kabati-Migwani (B7) Road, alleged that although notices of award were issued to some and the project was completed, most were never compensated. The Auditor General's report for the year ended 30th June 2022 showed that out of Kshs. 1,924,776,370 payable, only Kshs. 281,540,484 had been paid. They sought 21 declarations of violation of Articles 35, 40 and 47 of the Constitution, provisions of the African Charter, the UN Declaration of Human Rights and Sections 111, 115, 117 and 125 of the Land Act, including that the acquisition was ultra vires and the land grossly undervalued. The 2nd Respondent raised a preliminary objection that under Sections 133C(2), (6) and (8) of the Land Act the Land Acquisition Tribunal has first-instance jurisdiction, ousting that of the Environment and Land Court. The court identified a single issue: whether it has primary jurisdiction over the dispute. Applying Mukisa Biscuit, Owners of Motor Vessel 'Lillian S' and Samuel Kamau Macharia, and the Supreme Court's exhaustion jurisprudence in Abidha Nicholus, Albert Chaurembo Mumbo and NGOs Co-ordination Board, the court held that Section 133C(6) vests first-instance jurisdiction in the Land Acquisition Tribunal and that Section 13(2)(b) of the ELC Act confers only appellate jurisdiction in compulsory acquisition matters. The Tribunal is also competent to hear constitutional complaints under Articles 23(2) and 47(3). The court found the statutory alternative remedy adequate and the jurisdiction prematurely invoked. It struck out the petition, allowed the petitioners to pursue their grievances before the appropriate primary fora, and ordered each party to bear its own costs.

Key legal issues

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01

Whether the Environment and Land Court has primary jurisdiction over disputes arising from compulsory acquisition of land notwithstanding Article 162(2)(b) and Section 13(2)(b) of the ELC Act

Holding

No. Section 133C(6) and 133D of the Land Act vest first-instance jurisdiction in the Land Acquisition Tribunal, leaving the ELC with appellate jurisdiction only.

Reasoning

The court traced the jurisdictional framework: Article 40(3) permits deprivation of property for public purpose with just compensation; Part VIII and VIIIA of the Land Act provide the acquisition and dispute-resolution framework. Section 133C(6) expressly requires matters relating to compulsory acquisition to be referred to the Tribunal at first instance, and Section 133D gives the ELC only appellate jurisdiction on questions of law. Section 13(2)(b) of the ELC Act must therefore be read as conferring appellate jurisdiction in light of those provisions.

p. 11
02

Whether the constitutional rights claims (Articles 35, 40 and 47, ACHPR, and Land Act sections) fall outside the Tribunal's jurisdiction

Holding

No. The Tribunal may hear complaints arising under Articles 23(2) and 47(3) of the Constitution, and the exhaustion doctrine requires recourse to the statutory forum unless exceptional circumstances exist.

Reasoning

Relying on the Supreme Court in Abidha Nicholus, Albert Chaurembo Mumbo and NGOs Co-ordination Board, the court held that alternative statutory remedies do not necessarily bar constitutional relief, but a nuanced approach requires scrutiny of the adequacy of the alternative remedy and the purpose of the suit. The court found the Tribunal remedy adequate and capable of redressing the petitioners' grievances, so the constitutional framing did not confer exclusive jurisdiction on the ELC.

p. 13
03

Definition and application of a preliminary objection on jurisdiction

Holding

The objection was a proper preliminary objection on a point of law capable of disposing of the suit, and it succeeded.

Reasoning

The court applied the classic Mukisa Biscuit definition of a preliminary objection and the Owners of Motor Vessel 'Lillian S' and Samuel Kamau Macharia principles that jurisdiction flows from the Constitution or statute and must be determined at the earliest opportunity, with a court downsing its tools once it finds it lacks jurisdiction. The objection challenged jurisdiction pure and simple and could bring the petition to an end.

p. 6

Legal principles established

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  • Section 133C(6) of the Land Act ousts the primary jurisdiction of the Environment and Land Court over disputes on compulsory acquisition of interests in land and vests first-instance jurisdiction in the Land Acquisition Tribunal; the ELC's jurisdiction under Section 13(2)(b) of the ELC Act in such matters is appellate only.
  • Where Parliament has provided an alternative statutory remedy, courts must exercise restraint and give deference to the statutorily established dispute resolution body, unless exceptional circumstances are shown.

Court orders

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  1. 1.The 2nd respondent's preliminary objection dated 6th December 2023 is found to have merit
  2. 2.The petition is struck out on the ground that the jurisdiction of this court has been invoked prematurely
  3. 3.The petitioners shall be at liberty to ventilate their grievances in the appropriate primary adjudication fora established by Law
  4. 4.Parties shall bear their respective costs of the petition

Authorities

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Legislation

  • Constitution of KenyaArticle 23(1), 23(2), 35, 40(3), 42, 47, 47(3), 69, 70, 162(2)(b)
  • Land Act No. 6 of 2012 (as amended, 2019)Sections 111, 115, 117, 125, 127, 128, 133C, 133D, 148(5), Part VIII, Part VIIIA
  • Environment and Land Court ActSection 13
  • Fair Administrative Action ActSections 9(2), 9(4)
  • Civil Procedure ActSection 18
  • African Charter on People and Human RightsArticles 5, 9, 14
  • United Nations Declaration of Human RightsArticle 1

Cases cited (17)

  • Albert Chaurembo Mumbo & 7 others v. Maurice Munyao & 148 others
    SC Petition No.3 of 2016 (2019) eKLR
  • Abidha Nicholus v. Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested parties)
    Petition E007 of 2023 (2023) KESC 113 (KLR) (28th December 2023)
  • Giciri Thuo & 5 others v. National Land Commission (Interested Party) Dorcas Wairimu Kamau & 154 others (Intended Interested Parties)
    (2022) eKLR
  • Okoiti vs Kenya National Highways Authority (KeNHA) & 4 others; Project Affected Persons (PAPs) Ad Hoc Committee (Interested Party)
    (2022) KEELC 2753 (KLR) (Ruling)
  • Karisa Chengo & 2 others vs Republic
    (2015) eKLR
  • Ken Kasinga v Daniel Kiplagat Kirui & 5 others
    (2015) eKLR
  • William Odhiambo Ramogi & 3 others v. Attorney General & 6 others; Muslim for Human Rights & 2 others (Interested Parties)
    (2020) eKLR
  • Damian Belfonte v. The Attorney General
    C.A 84 OF 2004
  • Keroche Breweries Limited & 6 others v. the Attorney General & 10 others
  • Isaac Ngugi v. Nairobi Hospital & another
    Petition No.461 of 2012
  • Benson Ambuti Adega & 2 others v Kibos Distillers Limited & 5 others
    Supreme Court Appeal No. 3 of 2020
  • George Mwongera Mwendameru V Loise Gakii
    Misc Application No. 70 of 2015
  • Mukisa Biscuit Manufacturing Co. Ltd –VS- West End Distributors Ltd.
    [1969] E.A. 696
  • Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Samuel Kamau Macharia & ano v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • NGOs Co-ordination Board v EG & 4 others; Katiba Institute (Amicus Curiae)
    Petition 16 of 2019 [2023] KESC 17 (KLR) (24 February 2023)
  • R v National Environmental Management Authority
    CA No 84 of 2010; [2011] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court Act; Section 133C of the Land Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mulu & 55 others v National Land Commission & 2 others (Environment & Land Petition E001 of 2023) [2024] KEELC 5482 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5482/eng@2024-07-22

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