Ethics and Anti-Corruption Commission v Wandavuu Limited & another; Wandavuu Limited (Cross Petitioner); County Government of Machakos & 4 others (Respondent); National Land Commission (Interested Party) (Environment and Land Case Civil Suit E089 of 2024) [2025] KEELC 6924 (KLR)
The bottom line
#Kenya's land court confirmed the EACC can sue to recover disputed public land and struck out a defendant's improperly filed cross-constitutional petition.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court has jurisdiction to hear the claim.
- 2.Whether the plaintiff has the legal capacity to lodge and maintain the claim.
- 3.Whether a cross-constitutional petition is properly suited in this matter, and if so, should the 1st defendant be granted leave to file its pleadings out of time?
- 4.Whether the motion dated 28/03/2025 is premature, if not, should it be allowed?
Key legal issues
#Jurisdiction of the ELC over the claim
The court has jurisdiction; the NLC Act does not divest it and the claim is not time-barred
The suit concerns use and occupation of, and title to, land, which falls under Section 13 of the ELC Act. NLC's review power under Section 14(1) NLC Act lapsed on 2/05/2017, and even while subsisting that provision never removed the court's jurisdiction over fraud and illegality claims. Sections 41 and 42 of the Limitation of Actions Act exclude the Act from Government land recovery proceedings and proceedings under ACECA.
Plaintiff's legal capacity to lodge and maintain the claim
The plaintiff (EACC) has capacity
Section 11(1)(j) of the EACC Act read with Section 55 of ACECA and Sections 42(1)(d) and (j) of the Limitation of Actions Act confer mandate on the EACC to investigate corruption and institute civil proceedings for recovery of public property. The Court of Appeal in Boniface Katana Kalaveri confirmed this is an expanded, not curtailed, mandate anchored in Chapter 6 and Article 252 of the Constitution.
Propriety of a cross-constitutional petition in a plaint-based suit
Not properly before the court; struck out
The suit was instituted by plaint under the Civil Procedure Act and Rules, which contemplate a defence and counterclaim, not a cross-constitutional petition. Constitutional petitions are governed by their own strict regime (the 2013 Mutunga Rules). Following Nyutu Agrovet, constitutional breaches cannot be introduced by litigational ingenuity through a wrong procedural vehicle. The cross-petition also contravenes Order 2 Rule 6 CPR.
Whether the 1st defendant should have leave to file pleadings out of time
Leave to file a defence out of time would ordinarily have been granted, but the cross-constitutional petition cannot stand; the amendment motion became unnecessary
The court would have had no difficulty allowing the plea to file a defence out of time in the interests of justice, but the cross-constitutional petition accompanying the defence was fatally flawed and inadmissible. With the defence and cross-petition struck out, the court granted the defendants fresh leave to file defences and counterclaims within 21 days.
Whether the preliminary objection met the Mukisa Biscuit threshold
The court declined to decide the threshold question since a motion raised the same points
Although Mukisa Biscuit establishes that a PO must be a point of law pleaded or arising by clear implication from the pleadings, one of the motions dated 20/01/2025 raised similar points including matters of fact, making it needless to determine whether the PO met the threshold. The court dealt with the substance instead.
Legal principles established
#- The NLC's power under Section 14(1) of the NLC Act to review grants and dispositions of public land lapsed on 2/05/2017; thereafter the propriety or legality of grants falls to the ELC and subordinate courts in recovery proceedings
- Sections 41 and 42 of the Limitation of Actions Act exclude the application of that Act to proceedings by the Government to recover possession of Government land and to recovery proceedings under the Anti-Corruption and Economic Crimes Act
- The EACC has statutory capacity to institute civil proceedings for recovery of public property or confiscation of proceeds of corruption under Section 11(1)(j) of the EACC Act and Section 55 of ACECA
- A cross-constitutional petition without a primary constitutional petition in a suit instituted by plaint is not permitted by law and is an abuse of court process
Court orders
#- 1.The 1st defendant's notice of preliminary objection dated 20/01/2025 and notices of motion respectively dated 20/01/2025, 20/01/2025 and 28/03/2025 are hereby dismissed with costs being in the cause.
- 2.The 1st defendant's defence and cross-constitutional petition dated 21/01/2025 are hereby struck out with costs being in the cause.
- 3.The defendants are hereby granted leave to file their defences and counterclaims (if need be) within 21 days hereof.
- 4.Parties are directed to fully comply with Order 11.
- 5.A mention date shall be given for purposes of pretrial directions.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and the Environment and Land Court Act, Section 13
Relief refused
#1st defendant's prayer for leave to file its defence and cross-constitutional petition out of time and to have them deemed duly filed
The cross-constitutional petition is an abuse of court process and unknown in law as there is no primary constitutional petition to anchor it
1st defendant's motion dated 28/03/2025 for leave to amend its defence and cross-constitutional petition
Made unnecessary by the striking out of the cross-constitutional petition
Costs
The 1st defendant's PO and motions dismissed with costs being in the cause; the 1st defendant's defence and cross-constitutional petition struck out with costs being in the cause.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The 1st defendant's notice of preliminary objection dated 20/01/2025 and notices of motion respectively dated 20/01/2025, 20/01/2025 and 28/03/2025 are hereby dismissed with costs being in the cause.
The 1st defendant's defence and cross-constitutional petition dated 21/01/2025 are hereby struck out with costs being in the cause.
The defendants are hereby granted leave to file their defences and counterclaims (if need be) within 21 days hereof.
the power of the NLC to carry out its mandate under this provision of the law automatically lapsed on 2/05/2017 or thereabouts
this court finds and holds that the cross-constitutional petition is an abuse of court process, it is inadmissible, and it is non-suited in these proceedings
A Court's jurisdiction flows from either the Constitution or legislation or both… It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.
Issues in the judgment
#Duplicate lettered heading: issues (c) and (d) are both labelled 'b.' in the analysis section
Reciprocal typographical errors in the parties' positions: paragraph 28 refers to 'the 1st defendant does not have legal capacity' where the plaintiff's capacity was meant, and the 1st defendant's affidavits are attributed to a 'director' and 'managing director' inconsistently
The case title, case number and parties' names are not stated in the excerpt; the suit is identified only by the roles (plaintiff, 1st defendant, 2nd to 5th respondents) and the subject property Machakos/Municipality Block 1/678
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethics and Anti-Corruption Commission v Wandavuu Limited & another; Wandavuu Limited (Cross Petitioner); County Government of Machakos & 4 others (Respondent); National Land Commission (Interested Party) (Environment and Land Case Civil Suit E089 of 2024) [2025] KEELC 6924 (KLR)", Case Analysis (2025). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6924/eng@2025-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.