Legal Advice Centre t/a Kituo Cha Sheria & another v Attorney General & 7 others; Law Society of Kenya & another (Interested Parties); Kenya Legal and Ethical Issues Network on HIV & Aids (KELIN) & another (Amicus Curiae) (Constitutional Petition 007 of 2022) [2024] KEELC 1521 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled it can hear the Lake Baringo climate change petition directly, rejecting the National Land Commission's bid to have the case referred to it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Section 6 and 15 of the National Land Commission Act can oust the jurisdiction of the Environment and Land Court
- 2.Whether the Petition offends the doctrine of exhaustion
- 3.Whether the 7th Respondent should be struck off the proceedings
- 4.Who should bear the costs of this Application
Key legal issues
#Whether Sections 6 and 15 of the NLC Act can oust the ELC's jurisdiction
No. The provisions do not contain clear statutory words ousting the court's jurisdiction; the NLC's mandate is limited to investigation and recommendation with no effective or enforceable remedy, and the ongoing climate-change grievances fall outside Section 15's definition of historical land injustice
The court applied the principle that ouster clauses are construed strictly and only exclude court access in clear words, citing Pyx Granite, Anisminic and Selex Sistemi Integrati. It examined Sections 6 and 15 and found the NLC can only recommend remedies under Section 15(9)(a)-(k) with no means of enforcement, and Section 15(2)(c) confines historical land injustices to grievances occurring between 15th June 1895 and 27th August 2010, whereas the Petitioners' climate-change grievances are recent and ongoing. The ELC's jurisdiction also extends beyond public land to the full range of rights pleaded.
Whether the Petition offends the doctrine of exhaustion
No. This is an exceptional case where the exhaustion doctrine would not serve constitutional values; the Petition is polycentric and raises fundamental rights that only the court can enforce, and the NLC mechanism offers no appeal
The court reviewed the exhaustion doctrine and its exceptions in Royal Media Services, Karume, NASA and Ramogi. It found the Petition polycentric, involving multiple centres of decision-making which the NLC cannot balance, and that an important constitutional value is at stake since economic and social rights are asserted. The right to a fair trial under Article 25 encompasses an appeal process, which the NLC mechanism does not provide, making the 7th Respondent's assurance of an appeal false.
Whether the 7th Respondent should be struck off the proceedings
No. The NLC is a necessary party because the Petitioners seek reliefs against it, including mandamus relating to reservation and allocation of public land, and no effective decree could be passed in its absence
Applying Order 1 Rule 10(2) of the Civil Procedure Rules and the tests in Werrot & Co and Kizito Lubano, the court noted the Petitioners pleaded specific violations against the 7th Respondent for failing to reserve public land for settlement and sought declarations, compensation and mandamus against it. Since the court may issue orders directed at the 7th Respondent on identification, reservation and allocation of public land, its presence is necessary for effective adjudication. Having found referral refused, no reason remained to strike it out.
Legal principles established
#- The jurisdiction of the court can only be ousted by an ouster clause framed in very clear, unambiguous statutory words
- Where an ouster clause leaves an aggrieved party with no effective remedy at all, it ought to be struck down as being unreasonable
- The ELC has jurisdiction to hear constitutional petitions raising Bill of Rights violations relating to environment and land under Article 162(2)(b) and Section 13(3) of the ELC Act
- Where a suit primarily seeks to enforce fundamental rights and the violations are not mere bootstraps, it is not barred by the doctrine of exhaustion
- The NLC's functions under Article 67(2) and Sections 6 and 15 of the NLC Act are limited to investigations and recommending appropriate actions, and the NLC cannot purport to make determinations
Court orders
#- 1.The 7th Respondent's Notice of Motion dated 24th May, 2023 (filed 26th May, 2023) is dismissed as not merited
- 2.The Petitioners' Notice of Preliminary Objection dated 30th May, 2023 is upheld
- 3.The 7th Respondent remains a necessary party to the proceedings
- 4.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution as read with Sections 13(1) and 13(3) of the Environment and Land Court Act
Relief refused
#Striking out the 7th Respondent from the proceedings
The 7th Respondent is a necessary party as the Petitioners seek reliefs against it concerning reservation of public land, and no sufficient reason for striking it out remained once referral was refused
Referral of the Petition to the NLC for investigation and report
Sections 6 and 15 of the NLC Act are not a clear ouster of the court's jurisdiction, the NLC can only recommend remedies with no enforcement mechanism, the dispute is ongoing and does not qualify as a historical land injustice under Section 15(2)(c), and the Petition is polycentric with important constitutional values at stake
Costs
None of the parties who participated in this Application asked for costs and therefore none shall be awarded.
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.
Consequently, the 7th respondent’s Application dated 26th May, 2023 is not merited and must thus fail. On the other hand, the Petitioners’ Notice of Preliminary Objection is hereby upheld.
None of the parties who participated in this Application asked for costs and therefore none shall be awarded.
we must find that the said Sections 6 and 15 are incapable of eliminating this court’s jurisdiction over the Petition herein, which seeks to address alleged breaches of fundamental rights and freedoms.
Jurisdiction is everything. Without it, a Court has no power to make one more step.
It becomes clear that this is one of the exceptional circumstances where this court must find that the doctrine of exhaustion would not serve the values enshrined in the Constitution or law.
The 7th Respondent is therefore a necessary party to these proceedings and thus it is imperative that it remain a party to the proceedings herein.
Issues in the judgment
#The date of the Notice of Motion is stated inconsistently in the judgment: the application is described as 'dated 24th May, 2023' at the outset and in the prayer, but the disposition refers to 'the 7th respondent’s Application dated 26th May, 2023' (the filing date).
The case number of the Petition is not stated anywhere in the judgment extract.
Citation for Minerva Mills Ltd vs Union of India appears erroneous in the judgment, pairing an Indian case name with an English citation '(1924) 1 KB 171'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Legal Advice Centre t/a Kituo Cha Sheria & another v Attorney General & 7 others; Law Society of Kenya & another (Interested Parties); Kenya Legal and Ethical Issues Network on HIV & Aids (KELIN) & another (Amicus Curiae) (Constitutional Petition 007 of 2022) [2024] KEELC 1521 (KLR)", Case Analysis (2024). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1521/eng@2024-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.