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ELCStruck OutELC Petition (Naivasha), Application dated 20th March 2025

Kenya Women Microfinance Bank Limited v County Government of Nakuru & another; Hunky Energy Limited (Interested Party) (Environment and Land Petition E007 of 2024) (Environment and Land) [2025] KEELC 4754 (KLR)

Environment and Land Court
26 June 2025
4,962 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a compensation dispute, ruling that Kenya's Land Acquisition Tribunal must hear compulsory acquisition compensation claims first.

What this practically means

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Executive summary

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The Petitioner, a chargee over Land Reference Nos. 396/39 and 396/67, filed a petition and a Notice of Motion dated 8th July 2024 seeking conservatory orders that compensation of Kshs. 206,000,000 plus interest arising from a compulsory acquisition Award dated 19th November 2020 be paid directly to it rather than to the Interested Party, the registered proprietor. The Interested Party filed a Notice of Preliminary Objection dated 11th March 2025 and a Notice of Motion dated 20th March 2025 seeking striking out of the petition and application, contending that under Section 133C of the Land Act the Land Acquisition Tribunal is the primary forum for compulsory acquisition disputes and that the Petitioner had bypassed it. The Petitioner countered that the ELC has jurisdiction under Article 162(2)(b) and Section 13 of the Environment and Land Court Act, that the Tribunal's jurisdiction is limited to compensation quantum and cannot determine constitutional violations, and that the exhaustion doctrine is not absolute. The court framed a single issue: whether it had jurisdiction given Section 133C. Relying on Owners of Motor Vessel 'Lillian S', Mukisa Biscuit, Macharia v Kenya Commercial Bank, Kibos Distillers, Karume and the NGO Co-ordination Board decision on exhaustion, the court held that the dispute essentially concerned delay in compensation in compulsory acquisition, a matter for the Tribunal in the first instance, with the ELC having appellate jurisdiction under Section 133D. The preliminary objection and application were allowed; the petition and application were struck out as prematurely filed, with liberty to resort to the Tribunal and 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 this Court has the requisite jurisdiction to hear and determine the instant Petition in view of the provisions of Section 133C of the Land Act
  2. 2.Whether the Petitioner was required to first exhaust the dispute-resolution mechanism before the Land Acquisition Tribunal

Key legal issues

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01

Whether the ELC has jurisdiction over a petition concerning compulsory acquisition compensation without prior resort to the Land Acquisition Tribunal

Holding

The court lacks jurisdiction; the dispute concerns delay in compensation in compulsory acquisition which can be achieved through the Land Acquisition Tribunal, whose decisions are appealable to the ELC under Section 133D of the Land Act

Reasoning

The court examined Section 13(2)(b) of the Environment and Land Court Act, Sections 127, 128, 148(5), 133C and 133D of the Land Act. Although the ELC's jurisdiction extends to compulsory acquisition, Section 133C designates the Land Acquisition Tribunal as the forum of first instance for such matters, including complaints under Articles 23(2) and 47(3). Applying the exhaustion doctrine per Speaker of National Assembly v Karume, Kibos Distillers and the NGO Co-ordination Board case, the petition was premature.

p. 10
02

Whether the allegations of constitutional rights violations (Article 40) exempted the Petitioner from the exhaustion doctrine

Holding

No; the exceptions to exhaustion did not relieve the Petitioner of the obligation to first approach the Tribunal

Reasoning

The court noted the Petitioner's claim of violation of Article 40 rights and reliance on authorities holding that exhaustion is not absolute. However, following Kibos Distillers and the Karume principle, the court held that where a clear statutory procedure exists it must be strictly followed, and the Tribunal itself can hear constitutional complaints under Section 133C(8).

p. 10

Legal principles established

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  • Where a statute designates a primary forum for a dispute, that procedure must be followed before approaching the court
  • A litigant cannot confer jurisdiction on a court by the drafting of pleadings; original jurisdiction does not oust the jurisdiction of legislatively mandated organs
  • Without jurisdiction a court has no power to proceed

Court orders

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  1. 1.Both the Application and Petition struck out on the ground that the jurisdiction of the court was invoked prematurely
  2. 2.Petitioner at liberty to ventilate their grievances in the appropriate primary adjudication fora established by law
  3. 3.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

Jurisdiction invoked
Article 162(2)(b) of the Constitution; Environment and Land Court Act, Section 13

Relief refused

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Petitioner's Notice of Motion dated 8th July 2024 seeking conservatory orders directing payment of Kshs. 206,000,000 plus interest directly to the Petitioner

Court lacked jurisdiction; matter should first go to the Land Acquisition Tribunal

p. 11

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.

Both the Application and Petition herein are struck out on the ground that the jurisdiction of this court has been invoked prematurely.
p. 11Disposition - striking out for want of exhaustion
The Petitioner shall be at liberty to ventilate their grievances in the appropriate primary adjudication fora established by Law.
p. 11Final orders - liberty to resort to the Tribunal
Jurisdiction is everything. Without it, a court has no power to make one more step.
p. 6Nature of jurisdiction
Original jurisdiction is not an ouster clause that ousts the jurisdiction of other competent organs.
p. 10Exhaustion doctrine and original jurisdiction

Issues in the judgment

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minor

The party roles are confusingly reversed: the party described as the registered proprietor of the suit properties and director of the Interested Party is named Jackson Kariuki Kahungura, yet the Petitioner claims to hold charges over properties owned by the Interested Party while also being referred to as the party compensated on acquisition

minor

The case number of the underlying petition is not stated in the extracted judgment

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, "Kenya Women Microfinance Bank Limited v County Government of Nakuru & another; Hunky Energy Limited (Interested Party) (Environment and Land Petition E007 of 2024)  (Environment and Land) [2025] KEELC 4754 (KLR)", Case Analysis (2025). ELC Petition (Naivasha), Application dated 20th March 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4754/eng@2025-06-26

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