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Court of AppealDismissedCivil Appeal No. 133 of 2016

Abdulla Akiio & 2 others v Kenya Urban Roads Authority [2018] KECA 767 (KLR)

Court of Appeal
16 February 2018
3,592 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that land disputes belong in the Environment and Land Court, and that switching courts to dodge earlier orders will get your case dismissed.

What this practically means

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Executive summary

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The Court of Appeal (Visram, Karanja and Koome, JJ.A) dismissed this appeal against the decision of Mumbi Ngugi J, who had dismissed the appellants' constitutional petition in Constitutional Petition No. 53 of 2015. The appellants, traders at Tena Community Market in Nairobi, alleged violation of their rights to property and fair administrative action under Articles 40 and 47 of the Constitution after the respondent acquired the land for the expansion of Outer Ring Road and paid them only Ksh 50,000 as a disturbance allowance. The High Court had found the petition to be in the wrong court since the dispute concerned title to and occupation of land, a matter reserved for the Environment and Land Court under Article 162(2)(b), and further found the petition was filed to defeat orders made in ELC No. 1484 of 2014, which the appellants had withdrawn. The Court of Appeal affirmed both findings. It reiterated that jurisdiction is everything, following the Lillian S Caltex line of authority, but clarified that there is no rigid rule requiring a jurisdictional objection to be resolved at the earliest opportunity where the issue is embedded in the evidence. It held the appellants engaged in forum shopping and abuse of process and had no entitlement to a transfer of the petition. On the merits, the court found no violation of Articles 40 or 47: the allotment letters were temporary and conditional, the plot remained the property of the defunct City Council of Nairobi, and consultative meetings on relocation had been held. The appeal was dismissed with no order as to costs, each party bearing its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the petition was filed in the wrong court, given that the dispute fell within the jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution
  2. 2.Whether the petition was an abuse of the court process in view of ELC No. 1484 of 2014 in which certain orders had been made
  3. 3.Whether the appellants were entitled to the declaratory and judicial review orders sought, including whether their rights under Articles 40 and 47 of the Constitution were violated

Key legal issues

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01

Jurisdiction of the High Court over land disputes vis-à-vis the Environment and Land Court

Holding

The principal dispute was about the appellants' right to occupy the suit premises and the quantum of compensation, all of which fall under the jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution

Reasoning

The court applied the established principle that jurisdiction is everything and that a court without jurisdiction must down tools. It endorsed the High Court's finding that disputes on title to land and compulsory acquisition belong to the ELC. The constitutional petition dressed the dispute as a rights violation, but the substance was a land dispute, so the High Court lacked jurisdiction to determine it.

p. 3
02

Timing of determination of jurisdictional objections

Holding

There is no hard and fast rule that a jurisdictional issue must be decided at the earliest opportunity; a court may hear the entire matter and determine all issues where the jurisdictional question is embedded in the evidence

Reasoning

The court acknowledged the Lillian S 'Caltex' principle that jurisdiction must be established first, but tempered it with the overriding objective of facilitating just, expeditious and proportionate resolution of disputes. Where the jurisdictional question is intertwined with the evidence, hearing all issues is justified, as it was here given the complaint of lack of fair hearing before repossession.

p. 3
03

Abuse of court process and forum shopping

Holding

Filing a constitutional petition over the same subject matter after withdrawing a suit before the ELC constituted forum shopping and abuse of process, disentitling the appellants from a transfer of the petition

Reasoning

The court found the two suits concerned the same subject matter and parties. The appellants withdrew the ELC suit after obtaining a limited reprieve and refiled as a constitutional petition, omitting some parties. The court held that a litigant must come to court with clean hands, and the Judge was under no duty to transfer a suit filed to steal a match.

p. 4
04

Alleged violation of Articles 40 and 47 (property and fair administrative action)

Holding

No violation was established: the allotment letters were temporary and conditional, the plot remained the property of the City Council, and consultative meetings on relocation were held with the appellants

Reasoning

The court accepted the respondent's uncontroverted evidence that the City Council ceased renewing temporary occupational licences from 2012, and that traders were offered relocation to existing markets or an ex-gratia disturbance allowance of Ksh 50,000 per stall allottee and Ksh 10,000 for tenants, arrived at after consultative meetings with the appellants' officials.

p. 4

Legal principles established

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  • Disputes relating to the occupation of, and title to, land, including claims to compensation for compulsory acquisition, fall within the jurisdiction of the Environment and Land Court and not the general jurisdiction of the High Court
  • A court may, in appropriate cases, hear an entire matter and determine all issues on merit even where a jurisdictional objection exists, since a jurisdictional issue may be embedded within the evidence and may not be obvious until the matter is interrogated
  • A suit filed in a court without jurisdiction as a device to defeat orders of the court with proper jurisdiction amounts to an abuse of process and the fate of such a suit is dismissal
  • A letter of allotment that is conditional and states that the plot remains the property of the allocating council does not confer an absolute right of ownership

Court orders

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  1. 1.Appeal dismissed
  2. 2.No order as to costs; each party to bear their own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
Constitutional Petition No. 53 of 2015
Jurisdiction invoked
First appellate jurisdiction over the High Court's determination of a constitutional petition (Articles 22, 23, 40 and 47 of the Constitution invoked in the underlying petition); appeal premised on Article 164 of the Constitution

Relief refused

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Allowance of the appeal and setting aside of the High Court's dismissal of the petition

The principal dispute concerned occupation of, and title to, land, which falls within the exclusive jurisdiction of the Environment and Land Court; the petition was also an abuse of process as it was filed after the appellants withdrew a prior suit before the ELC

p. 3

Declaratory and judicial review orders (certiorari and mandamus) and a finding of violation of Articles 40 and 47

The appellants failed to demonstrate any violation of their rights; the allotment letters were temporary, the plot remained the property of the City Council, and consultative meetings were held

p. 4

Transfer of the petition to the appropriate forum instead of dismissal

A party found to have abused the court process by forum shopping has no entitlement to have the suit transferred

p. 4

Costs

No order as to costs; each party shall bear their own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence.
p. 3Jurisdiction
In the upshot, we find no merit in this appeal, which we hereby order dismissed.
p. 4Final orders - dismissal of appeal
Due to the nature of these proceedings that involve individuals who were seeking Constitutional interpretation of what they perceive to be their rights as against a public corporation, we make no order as to costs. Each party shall bear their own costs.
p. 4Final orders - costs
Whatever term one gives it, the proper forum for the determination of the matter was the Environment and land court, not his court.
p. 3Jurisdiction of the Environment and Land Court
By filing two cases in the High Court and ELC, the petitioners must have been forum shopping, while forgetting the cardinal principle that he who seeks justice must do so with clean hands and play the game with all the card facing up and not some hidden in the pocket.
p. 4Forum shopping and abuse of process
The issue may be embedded within the evidence and in keeping with the overarching objective in the administration to facilitate, just, expeditious proportionate and affordable resolution of dispute, a court may wish to hear the entire matter and make a determination of all the issues on merit
p. 3Timing of jurisdictional determinations
A court's jurisdiction flows from either the Constitution or legislation or both. Thus a court of law can only exercise jurisdiction as conferred (to it) by the Constitution or other written law.
p. 3Source of jurisdiction

Issues in the judgment

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minor

The judgment inconsistently refers to the ELC suit number, citing both ELC No. 1484 of 2014 and ELC No 1454 of 2015 for what appears to be the same suit

minor

The citation to South Dakota v North Carolina carries an internally inconsistent year (192 US 268 but stated as 1940)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Abdulla Akiio & 2 others v Kenya Urban Roads Authority [2018] KECA 767 (KLR)", Case Analysis (2018). Civil Appeal No. 133 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/767/eng@2018-02-16

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