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ELCDismissedNot stated in the judgment· [2024] KEELC 6721 (KLR)

Mephis Limited v Chief Land Registrar & 4 others (Environment & Land Petition 6 of 2023) [2024] KEELC 6721 (KLR)

Environment and Land Court
16 October 2024
1,734 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court in Malindi confirmed landowners can sue the State directly in a constitutional petition when proper compulsory acquisition steps were never followed.

What this practically means

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Executive summary

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The 1st to 4th Respondents raised a preliminary objection dated May 1, 2024 seeking dismissal of the Petitioner's petition on grounds that the court lacked jurisdiction as forum non conveniens, that the petition was premature for failure to exhaust internal mechanisms under the Land Adjudication Act (Cap 284) and the Land Act (No. 6 of 2012), and that the court has only appellate jurisdiction over land adjudication and compulsory acquisition matters. Counsel for the Respondents relied on authorities to argue that adjudication and compulsory acquisition have distinct statutory dispute-resolution processes which the Petitioner bypassed. The Petitioner countered that no compulsory acquisition process under the Land Act was ever commenced and no decision of the National Land Commission existed capable of appeal; that no notice under Section 5 of the Land Adjudication Act was published, so the adjudication appellate procedure was never triggered; and that failure to explore alternative dispute resolution is not a bar to a constitutional petition. Applying the Mukisa Biscuit definition of a preliminary objection and the reasoning in Julius Kailikia Laaru, the court held that since no legal compulsory acquisition was commenced, the Petitioner could not invoke the Land Act mechanisms, and that where a Petitioner's registered title is allegedly breached by a declaration of an adjudication section, redress lies in a plaint or constitutional petition, not the adjudication statutes. The preliminary objection was dismissed, respondents were given 21 days to file responses, and the petition was set down for directions on 20/11/2024. No costs order was made.

Key legal issues

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01

Definition and propriety of a preliminary objection

Holding

A preliminary objection must consist of a point of law which, if argued as a preliminary point, may dispose of the suit, per Mukisa Biscuit.

Reasoning

The court adopted the classic definition in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, framing the objection as raising points of law touching on jurisdiction. The respondents' objection, if successful, would lead to dismissal of the petition on jurisdictional grounds alone, without need to delve into the merits or facts of the dispute.

p. 3
02

Whether the compulsory acquisition dispute-resolution mechanisms under the Land Act apply

Holding

They do not apply, as no compulsory acquisition process was commenced and there was no NLC decision capable of appeal.

Reasoning

The court noted that compulsory acquisition is governed by Sections 107 to 133 of the Land Act, requiring notice and an award of compensation. In the present petition, there was no decision of the National Land Commission and no legally commenced compulsory acquisition process, so the statutory mechanisms could not have been invoked by the Petitioner.

p. 4
03

Whether failure to exhaust the Land Adjudication Act mechanisms barred the petition

Holding

It did not, because the Petitioner's rights were not under adjudication and the alleged declaration of the adjudication section was itself the breach complained of.

Reasoning

The cause of action was that the Government and respondents declared the suit property an adjudication section for squatters without compensation, breaching the Petitioner's registered title. It would be improper for the Petitioner to abandon the constitutional remedy for the adjudication process when its rights were not under adjudication. The declaration itself was the grievance, not a dispute within the adjudication process.

p. 4

Legal principles established

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  • Where no legal compulsory acquisition process is commenced under the Land Act, the Petitioner cannot be required to invoke the dispute resolution mechanisms relating to compulsory acquisition.
  • A claimant asserting registered title whose rights are allegedly breached by a declaration of an adjudication section may pursue a constitutional petition rather than the Land Adjudication Act mechanisms.

Court orders

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  1. 1.The Preliminary Objection dated May 1, 2024 is dismissed
  2. 2.The respondents who have not filed and served their responses to the petition shall do so within 21 days
  3. 3.The petition to be mentioned on 20/11/2024 for directions as to hearing
Jurisdiction invoked
Not expressly invoked; the court considered whether it had jurisdiction over the constitutional petition.

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, "Mephis Limited v Chief Land Registrar & 4 others (Environment & Land Petition 6 of 2023) [2024] KEELC 6721 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6721/eng@2024-10-16

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