Petitioner v Speaker of County Assembly of Siaya & 2 others (Preliminary Objection)
The bottom line
#The Environment and Land Court struck out a historical land injustice petition because the claimant first had to finish the National Land Commission process and lacked legal authority to sue for a deceased person's estate.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court lacks jurisdiction to hear and determine the petition by virtue of the petitioner lodging a claim for historical land injustices with the National Land Commission under section 15 of the National Land Commission Act
- 2.Whether the petitioner was required to exhaust the remedies provided under section 15 of the National Land Commission Act
- 3.Whether the petition discloses any violation of the petitioner's constitutional rights by the 1st and 2nd respondents
Key legal issues
#Whether the ELC has jurisdiction over a claim for historical land injustices already lodged with the NLC
Although the court has jurisdiction over historical injustice claims in general, where the petitioner has already lodged a claim with the NLC under section 15 of the National Land Commission Act and it is pending, the court lacks jurisdiction in the first instance and the exhaustion principle applies
The court accepted that superior courts retain jurisdiction over historical injustice claims, but held that because the petitioner had a pending claim before the NLC under section 15 of the National Land Commission Act, the court would not exercise its jurisdiction in the first instance. Relying on the Karume and Muthinja Kabiru line of authority and the Supreme Court's decision in Chaurembo, it held the petitioner had to await the outcome of the NLC process before approaching the court.
Whether the petitioner had locus standi to prosecute the petition
The petitioner lacked locus standi because he had not obtained a grant of letters of administration for the estate of the deceased
The 3rd respondent argued, and the court agreed, that the petitioner could not mount the petition without a grant of letters of administration, as required by section 82(b) of the Law of Succession Act and the Trouistik Union International v Jane Mbeyu authority. He was also not a legal representative under section 2 of the Civil Procedure Act.
Legal principles established
#- Where alternative dispute mechanisms exist outside court, the court does not have jurisdiction in the first instance and the exhaustion principle applies
- The Environment and Land Court's jurisdiction is anchored on Article 162(2)(b) of the Constitution and operationalized by section 13(1) of the Environment and Land Court Act
Court orders
#- 1.The notice of preliminary objection dated April 26, 2023 is allowed
- 2.The petition is struck out with no orders as to costs
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, operationalized by section 13(1) of the Environment and Land Court Act
Relief refused
#All declaratory and compensatory reliefs sought in the petition (declarations under articles 40 and 27, compensation, general damages, costs)
The court upheld the preliminary objection on jurisdiction and exhaustion, and additionally found the petitioner lacked locus standi for want of a grant of letters of administration
Costs
No orders as to costs - 'the instant petition is hereby struck out with no orders as to costs'
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.
In the premises, I find the notice of preliminary objection dated April 26, 2023 merited. The same is hereby allowed.
In the foregone, the instant petition is hereby struck out with no orders as to costs.
Clearly, the exhaustion principle is applicable in this petition since where mechanisms exist outside court, the court does not have jurisdiction in the first instance in the matter in question.
I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it.
Issues in the judgment
#The judgment appears internally inconsistent: it first endorses Chief Land Registrar v Nathan Tirop Koech (that a court has jurisdiction over historical injustice claims whether or not the NLC is seized) and Wambega (jurisdiction exists but may be deferred), but then concludes the court lacks jurisdiction in the first instance
The 1st and 2nd respondents' preliminary objection is described and determined variously as a 'preliminary objection' and a 'notice of preliminary objection' without a defined notice document; the petitioner is also unnamed in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Petitioner v Speaker of County Assembly of Siaya & 2 others (Preliminary Objection)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1214/eng@2024-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.