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ELCOtherELC Reference No. 1 of 2018· [2019] KEELC 4569 (KLR)

National Land Commission v Afrison Export Import Limited & 10 others [2019] KEELC 4569 (KLR)

Environment and Land Court
1 February 2019
EOE. O. ObagaEBEboso
2,429 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed it can pause criminal cases tied to land disputes, but refused to do so here because the National Land Commission showed no real need.

What this practically means

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Executive summary

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The National Land Commission filed a Reference under Section 127 of the Land Act on 2 August 2018 seeking determination of whether the 13.5-acre portion of LR No. 7879/4, on which Ruaraka High School and Drive In Primary School stand, is public or private land, and moved by Notice of Motion for conservatory orders staying all civil and criminal proceedings arising from the compulsory acquisition, against the background of a part-payment of Kshs.1.5 billion out of Kshs.3,269,040,600 compensation to Afrison Export Import Limited and Huelands Limited and ensuing investigations by the EACC, the DPP and parliamentary committees. The Attorney General and the DPP raised a preliminary objection that the Environment and Land Court lacks jurisdiction to grant conservatory orders touching on criminal prosecution. The court overruled the objection, holding, on the authority of Mugendi and Munya, that a court properly seized of a matter may make ancillary orders, and that the apprehended criminal prosecutions were so intertwined with the acquisition issue before it that they could not be severed. On the merits, however, the court declined the conservatory orders: the NLC failed to show that the various pending civil suits bore on the Reference and the court could not stop a matter pending in the Court of Appeal; and since no prosecution had commenced and the Reference was already heard and awaiting judgment, conservatory orders would be superfluous. The Notice of Motion was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction to grant conservatory orders touching on criminal prosecution

Holding

The preliminary objection on jurisdiction is overruled; the court has jurisdiction where the criminal aspect arises directly from a matter properly pending before it

Reasoning

The court applied the Mugendi and Munya line of authority on ancillary powers: a court seized of a matter within its jurisdiction may make essential or ancillary orders to sustain its mandate. The Reference, properly brought under Section 127 of the Land Act, concerned whether the acquired portion was public or private land; the apprehended prosecutions stemmed from the same acquisition process and could not be severed from the principal question.

p. 3
02

Whether conservatory orders should issue staying civil and criminal proceedings pending determination of the Reference

Holding

Dismissed: no basis was shown for stopping the civil cases, and no prosecution had commenced, making the orders superfluous

Reasoning

The NLC bore the burden of demonstrating that the various pending suits across the courts bore on the Reference and required staying; it failed to do so, and in any event the court could not stop a matter pending in the Court of Appeal. As to criminal proceedings, neither the EACC nor the DPP had taken any precipitate step towards prosecution, and the Reference had been heard with judgment pending, so conservatory relief had become otiose.

p. 3

Legal principles established

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  • A court with jurisdiction over a principal matter may grant conservatory orders ancillary to it, even touching on criminal prosecution, where the criminal aspect is so intertwined with the main issue as not to be separable and just cause is shown

Court orders

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  1. 1.The preliminary objection by the 7th and the 10th interested parties is overruled
  2. 2.The prayer for conservatory orders is declined
  3. 3.Each party to bear their own costs
Jurisdiction invoked
Sections 127 and 128 of the Land Act No. 2 of 2012, with the court's jurisdiction under Article 162(2)(b) of the Constitution and the Environment and Land Court Act in issue

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "National Land Commission v Afrison Export Import Limited & 10 others [2019] KEELC 4569 (KLR)", Case Analysis (2019). ELC Reference No. 1 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4569/eng@2019-02-01

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