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ELCDismissedNot stated in the excerpt (Petition pending, with Notice of Motion dated 25th November 2024)

Kibii (Suing as the Legal Representative of the Estate of the Late Kibii Boiyo) v Agricultural Developent Corporation & others; Ethics and Anti-Corruption Commission & another (Interested Parties) (Environment & Land Petition E001 of 2023) [2025] KEELC 3667 (KLR)

Environment and Land Court
28 April 2025
3,444 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 Environment and Land Court ruled it cannot stop EACC corruption investigations or prosecutions—only the High Court can, so the case was dismissed with costs.

What this practically means

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Executive summary

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The Petitioner, Daniel Kibet Bii, moved the Environment and Land Court by notice of motion dated 25th November 2024 seeking conservatory orders barring the Ethics and Anti-Corruption Commission from investigating, summoning, arresting or prosecuting him over properties LR No. 5335/23 and LR 4140/4 in Trans Nzoia County, the subject of a pending petition. He also sought cross-examination of one Charles Rasugu, a declaration that his conduct was contemptuous punishable by six months' imprisonment, and a declaration that he was unfit for public office. The Petitioner argued the investigations were calculated to circumvent the ELC's exclusive jurisdiction and his Article 50 right to a fair trial, relying on the Supreme Court's decision in Jirongo v Soy Developers Ltd. The 1st Interested Party (EACC) and the 2nd Interested Party responded that the Commission was exercising its constitutional and statutory mandate under Section 11(1)(d) of the EACC Act and Section 35 of the Anti-Corruption and Economic Crimes Act. The 2nd to 4th Respondents raised a preliminary objection contending the application was frivolous and that the Court lacked jurisdiction and power to supervise the EACC. The Court framed three issues: whether the application was frivolous and mischievous; whether it had jurisdiction; and costs. Applying Mukhisa Biscuit, it held the frivolousness ground was not a pure point of law and failed. On jurisdiction, invoking Lillian S and Equity Bank v Mutuku, it held that under Article 162(2)(b) and Section 13 of the ELC Act its mandate is confined to land and environment matters, while criminal matters and supervision of bodies exercising quasi-judicial functions belong to the High Court under Article 165(3) and (6). Upholding the preliminary objection, the Court dismissed the application with costs to the objecting parties and directed that the related application on additional documents be delivered on 4th June 2025.

Questions the Court framed

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

  1. 1.Whether the application is frivolous and mischievous
  2. 2.Whether this Court has jurisdiction to hear and determine the instant matter
  3. 3.Who should bear the costs of the application

Key legal issues

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01

Whether the ground that the application was frivolous and mischievous was a proper preliminary objection

Holding

It was not a pure point of law and failed

Reasoning

Applying the Mukhisa Biscuit definition, the Court held that determining whether a motion is frivolous or mischievous requires examining the facts of the application and weighing them against the law, which takes it outside the realm of a pure point of law. A preliminary objection must be decided on pleadings and law alone.

p. 5
02

Whether the ELC has jurisdiction over the application seeking to restrain EACC investigations and prosecution

Holding

It does not; only the High Court has such jurisdiction

Reasoning

The Court traced its jurisdiction to Article 162(2)(b) and Section 13 of the ELC Act, confined to land and environment matters, with quasi-criminal jurisdiction only in contempt. Article 165(3) vests unlimited original criminal jurisdiction in the High Court and Article 165(6) gives the High Court supervisory powers over bodies exercising quasi-judicial functions. The ELC therefore could not supervise EACC investigations or the processes leading to criminal charges.

p. 6

Legal principles established

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  • The Environment and Land Court has no jurisdiction to determine issues of a criminal nature or supervise processes leading to the institution of criminal charges; that mandate lies with the High Court
  • A preliminary objection must be a pure point of law and fails where facts must be ascertained

Court orders

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  1. 1.The preliminary objection dated 3rd December 2024 was upheld as merited
  2. 2.The application dated 25th November 2024 (referred to in the ruling as 25th November 2025) was dismissed with costs to the parties which supported the objection
  3. 3.The related application relating to the filing of additional documents to be delivered on 4th June 2025

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 162(2)(b) and 165 of the Constitution of Kenya and Section 13 of the Environment and Land Court Act, 2011

Relief refused

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Conservatory orders barring the 1st Interested Party from investigating, summoning, arresting or prosecuting the Petitioner

The Court lacked jurisdiction, criminal matters being within the High Court's unlimited original jurisdiction

p. 7

Summons to Mr. Charles Rasugu for cross-examination

The entire application was dismissed for want of jurisdiction

p. 7

Declaration that Mr. Charles Rasugu's actions were contemptuous and imposition of a six-month jail term

The application was dismissed on jurisdiction

p. 7

Declaration that Mr. Charles Rasugu is unfit to hold public office

The application was dismissed on jurisdiction

p. 7

Costs

Application dismissed with costs to the parties which supported the Preliminary Objection

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.

I dismiss the application dated 25th November 2025 with costs to the parties which supported the Objection.
p. 7Final orders - dismissal of the application
From such a finding, it is clear that this Court does not have the jurisdiction to supervise processes that lead to the institution of criminal charges against any parties, whether such processes are begun by the 2nd Interested Party or any other.
p. 7Lack of jurisdiction over criminal investigation processes
It means that this Court does not have jurisdiction to determine issues of a criminal nature, including the process leading to the institution of such matters in courts.
p. 6Division of jurisdiction between ELC and High Court

Issues in the judgment

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minor

The application is inconsistently dated in the judgment: filed 25th November 2024 but dismissed as dated 25th November 2025

minor

Contradictory dates for the interview invitation letter annexed as DKK1 (letter dated 11th November 2024; interview stated as 27th November 2024 in grounds but 27th November 2021 in the affidavit description)

minor

The identity of the investigating body alternates between the 1st and 2nd Interested Parties without clarification

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kibii (Suing as the Legal Representative of the Estate of the Late Kibii Boiyo) v Agricultural Developent Corporation & others; Ethics and Anti-Corruption Commission & another (Interested Parties) (Environment & Land Petition E001 of 2023) [2025] KEELC 3667 (KLR)", Case Analysis (2025). Not stated in the excerpt (Petition pending, with Notice of Motion dated 25th November 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3667/eng@2025-04-28

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