Mulu & 55 others v National Land Commission & 2 others (Environment & Land Petition E001 of 2023) [2024] KEELC 5482 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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.
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.
Whether the constitutional rights claims (Articles 35, 40 and 47, ACHPR, and Land Act sections) fall outside the Tribunal's jurisdiction
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.
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.
Definition and application of a preliminary objection on jurisdiction
The objection was a proper preliminary objection on a point of law capable of disposing of the suit, and it succeeded.
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.
Legal principles established
#- 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
#- 1.The 2nd respondent's preliminary objection dated 6th December 2023 is found to have merit
- 2.The petition is struck out on the ground that the jurisdiction of this court has been invoked prematurely
- 3.The petitioners shall be at liberty to ventilate their grievances in the appropriate primary adjudication fora established by Law
- 4.Parties shall bear their respective costs of the petition
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya National Highways Authority v Mandev Ltd & another (Environment and Land Appeal E050 of 2025) [2026] KEELC 3949 (KLR)[2026] KEELC 3949 (KLR)30 Jun 2026
- Kigathi v Kenya National Highways Authority & another; National Land Commission (Interested Party) (Environment & Land Petition E062 of 2024) [2025] KEELC 993 (KLR)[2025] KEELC 993 (KLR)28 Feb 2025
Cite this brief
#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.