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The Environment and Land Court is a superior court established by Article 162(2) of the Constitution of Kenya.
The Environment and Land Court Act no.19 of 2011 (ELCA) gives effect to Article 162(2) of the Constitution and the court was established to hear and determine disputes relating to the environment and the use and occupation of, and title to land.
The court exercises jurisdiction throughout Kenya. It has original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of the Act or any other written law relating to environment and land.
The court has powers to deal with disputes relating to land administration and management. It is also empowered to hear cases relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land.
The court exercises appellate jurisdiction over the decisions of subordinate courts and local tribunals in respect to matters falling within its jurisdiction.
Some of these tribunals include: National Land Commission, Business Premises Rent Tribunal, Rent Restriction Tribunal, National Environment Tribunal, Cooperative Tribunal ( in as far as the dispute relates to land).
The court further exercises supervisory jurisdiction over the subordinate courts, local tribunals, persons or authorities in accordance with Article 165(6) of the Constitution.
A Presiding Judge of the court, is elected under section 6 of the Environment and Land Court Act by the college of judges for a non-renewable term of five years. He has supervisory powers over the court and reports to the Chief Justice. On administrative matters the Presiding Judge works with the Chief Registrar of the Judiciary.
The Registrar of the court is responsible for the day today administration of the court. There are 37 Environment and Land court stations spread across the country. There are 53 judges of the court led by the Hon Presiding Judge.
The present framework of land law in Kenya culminating in the establishment of Environment and Land Court (ELC) has evolved from a complex mix of African customary law, English property law, and Arabic customary law in the 10-mile coastal strip that was subject to the Sultanate of Zanzibar.
In precolonial Kenya, disputes relating to access, use and customary rights to land were determined by the various political authorities of each community according local rules usage and customs (customary law).
The colonial administration introduced the English Property law and enacted various statutes on the management of land. They created a dual dispute resolution mechanism; one for the settler lands and another for the natives. Disputes arising from lands now governed by English law were settled in the High Court. Those between natives were settled in the African Native Court.
The colonial authorities empowered village elders, Headmen and Chiefs to settle disputes as they had done in the precolonial period, these traditional dispute resolution mechanisms eventually evolved into tribunals which were accorded official recognition in 1907 when the Native Courts Ordinance was promulgated. This ordinance established native tribunals to serve each ethnic group in Kenya.
The segregated system of administration of justice continued until 1962 when the African Courts were transferred from the Provincial Administration to the Judiciary. In 1967 the Judicature Act and The Magistrates Court Act were enacted to streamline the administration of justice.
Land and environment disputes continued to be determined in the High Court and the Magistrates Court. In 1991, the Land Disputes Act was enacted that limited the jurisdiction of the Magistrates Court and created a two-tier system of land dispute tribunals; the Land Dispute Tribunal and the Land Disputes Appeal Committee. The land dispute tribunals dealt with disputes involving division of land and boundary determination, claim to occupy and work land and trespass to land. The other matters continued to be heard by the Magistrates Court and the High Court.
In 2003, the Commission of Inquiry into the illegal/irregular allocation of public land (Ndungu Commission) recommended the establishment of a Land Titles Tribunal to handle the large number of land cases filed in the general courts. The commission recommended that a specialized tribunal to handle cases would lead to expeditious resolution of disputes relating to land. However, instead of creating the tribunal, the Chief Justice vide gazette notice 301 of 2007 established the Environment and Land Division of the High Court, in Nairobi and Mombasa.
Despite the establishment of the divisions which was informed by the increasing number of land cases and the need for specialisation in ever complex land matters, there was no criteria for the appointment of specialized judges to the division. However, this was viewed by stakeholders as watering down the specialisation that was intended for the division. This did not therefore address the issue of caseload and delay and hence, culminated into the proposal to create a specialized court in the Constitution to handle environment and land cases.
The Environment and Land Court was created by the Constitution. It is a Superior Court of record exercising exclusive jurisdiction to determine disputes related to the environment, the use and occupation of, and title to land (Art 162 (b). It was operationalized through the Environment and Land Act (2011) which was later amended in year 2012, 2015.
The Judicial Service Commission appointed the first college of 15 judges in the October 2012. This enabled the Judiciary to establish Environment and Land Court stations at Milimani, Mombasa, Malindi, Kerugoya, Nyeri, Nakuru, Bungoma, Kisumu, Eldoret and Machakos. The judges deployed however, included judges from the High Court. This led to litigation on the jurisdiction of judges appointed to the specialized courts. This issue was settled by Supreme Court in the case Republic v Karisa Chengo & 2 others [2017] eKLR; that a judge appointed to a specialized court can only handle matters in that court.
In 2015 the Environment and Land Court Act was amended to allow the Chief Justice, by notice in the Gazette, appoint certain magistrates to preside over cases involving environment and land matters of any area of the country. Subject to Article 169(2) of the Constitution, the Magistrates appointed by the Chief Justice have jurisdiction to handle disputes relating to offences defined in any Act of Parliament dealing with environment and land; and matters of civil nature involving occupation, title to land, provided that the value of the subject matter does not exceed the pecuniary jurisdiction as set out in the Magistrates’ Courts Act. Appeals on matters from the designated magistrate’s courts lie with the Environment and Land Court.
There are 53 judges of the court led by the Hon Presiding Judge.
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