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ELCPartially AllowedPetition dated 21st June 2024 (number not stated in judgment)· [2025] KEELC 4271 (KLR)

Seet Karoi Welfare Group v Eastern Produce Limited & 5 others (Environment & Land Petition E001 of 2024) [2025] KEELC 4271 (KLR)

Environment and Land Court
5 June 2025
2,685 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a land petition because historical land injustice claims must first be decided by the National Land Commission before going to court.

What this practically means

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Executive summary

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By a Notice of Motion dated 29th July 2024 lodged under Rule 3(8) of the Constitution Practice and Procedure Rules 2013 and Section 6 of the Civil Procedure Act, the 1st respondent (supported by the 2nd respondent) sought a declaration that the court lacks jurisdiction over a petition dated 21st June 2024, striking out of the petition, and costs. It argued that the petitioner's historical land injustice claims, NLC/HLI/232, 233, 235, 236, 238, 239, 240, 242, 243 and 247 of 2018, were part heard before the National Land Commission (3rd respondent), rendering the petition sub judice, premature under the exhaustion doctrine, and an abuse of process. The petitioner opposed, contending that sub judice applies only to parallel court proceedings, that the NLC had heard its case by May 2018 but failed to deliver a verdict despite a request by letter dated 12th March 2024, and that strict exhaustion would defeat constitutional rights to fair and expeditious administrative action. Ongondo J framed three issues: sub judice, exhaustion, and appropriate orders. The court held that sub judice under Section 6 of the Civil Procedure Act applies only to matters pending before a court or judge, and the NLC is a Commission, not a court. However, the cause of action was a historical land injustice falling within the NLC's jurisdiction under Article 67(2)(e) and Section 15 of the National Land Commission Act, so the exhaustion principle barred the petition in the first instance. The petition was struck out with each party bearing their own costs, guided by Rai vs Rai (SC).

Key legal issues

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01

Whether the petition is sub judice

Holding

The sub judice doctrine does not apply because the pending historical land injustice claims are before the National Land Commission, a constitutional Commission and not a court of law; sub judice requires a matter before a court or judge

Reasoning

Relying on the definition of sub judice in Black's Law Dictionary 9th Edition and the Supreme Court's exposition in Kenya National Commission on Human Rights v Attorney General, the court held that Section 6 of the Civil Procedure Act contemplates a previously instituted suit pending before a court with jurisdiction to grant the relief claimed. Since the NLC is a Commission under Article 248(2)(b) and not a court, the doctrine is not engaged.

p. 5
02

Whether the exhaustion principle applies

Holding

Yes; the petition concerns historical land injustices which fall within the jurisdiction of the National Land Commission in the first instance, so the High Court/ELC cannot entertain the petition before that mechanism is exhausted

Reasoning

The court examined Article 67(2)(e) of the Constitution and Section 15 of the National Land Commission Act as amended by the Land Laws (Amendment) Act, 2016, which empower the NLC to investigate present or historical land injustices and recommend redress. Reading the petition's wording and reliefs, the court found the cause of action to be a historical land injustice, invoking the Speaker v Karume line of authority and the Supreme Court's exhaustion jurisprudence.

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03

Consequence of premature invocation of the court's jurisdiction

Holding

The court lacks jurisdiction in the first instance and the petition is struck out

Reasoning

Applying the judicial abstention/deference doctrine and the exhaustion principle, the court held that the petitioner should have resorted to the prescribed mechanism for grievances against the NLC's failure to deliver a verdict, including judicial review to compel the Commission to finalise the claims, rather than filing a constitutional petition prematurely.

p. 5

Legal principles established

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  • The doctrine of sub judice under Section 6 of the Civil Procedure Act applies only where the matter in issue is directly and substantially in issue in a previously instituted suit before a court or judge; proceedings before the National Land Commission, a Commission and not a court of law, do not trigger the doctrine
  • Where alternative dispute resolution mechanisms exist outside court, the court does not have jurisdiction in the first instance; historical land injustice claims must first be ventilated before the National Land Commission under Article 67(2)(e) and Section 15 of the National Land Commission Act
  • Even where superior courts have jurisdiction over profound questions of law, the first opportunity must be given to relevant bodies, tribunals or quasi-judicial authorities to deal with the dispute as provided for in the parent statute

Court orders

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  1. 1.The petition dated 21st June 2024 is struck out
  2. 2.Each party to bear their own costs, guided by Rai & 3 others vs Rai & 4 others [2014] eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (jurisdiction of the Environment and Land Court over land disputes); the court determined it lacked jurisdiction in the first instance under the exhaustion doctrine

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, "Seet Karoi Welfare Group v Eastern Produce Limited & 5 others (Environment & Land Petition E001 of 2024) [2025] KEELC 4271 (KLR)", Case Analysis (2025). Petition dated 21st June 2024 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4271/eng@2025-06-05

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