11. Environment and Land Court Act No. 19 of 2011

The law establishes the Environment and Land Court to determine land and environment disputes to reduce the backlog of cases and promote expeditious resolution of disputes.

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· This statute was enacted to establish a superior court (Environment and Land Court) to hear and determine disputes relating to the environment and the use and occupation of, and title to, land, and to make provision for its jurisdiction functions and powers. The law thus effectively replaced Gazette Notice No. 301 of 2007 through which the Judiciary had established an Environment and Land Court Division as a division of the High Court in Nairobi and Mombasa only.

· The statute also repealed the Land Disputes Tribunal Act, No. 18 of 1990 which created Land Disputes Tribunal in every registrable district, which Tribunals adjudicated over land disputes, before their abolishment.

· This law was passed to create specialized courts dedicated to adjudicating over land and environmental disputes, owing to the huge backlog of land disputes which constituted most civil disputes (thereby hindering the release of land for development) as well as the need to have specialized judges well versed in matters of land and environment dealing with such disputes.

· The establishment and operationalization of the courts in 2012 has led to more recruitment of judges for the court and resolution of many land disputes so far, though there is still a backlog. The establishment of these courts, their decentralization and the recruitment of more judicial officers has been associated with more cases/disputes being lodged with them.

· Accordingly, there is a need for more investment through the establishment of more courts in various counties and hiring of more judges and personnel by the Judiciary. As of July 2022, there were 51 ELC judges and 39 ELC court stations in 36 counties. About 78% of the courts had a Case Clearance Rate of 100% in the 2021/2022 financial year ended June 2022. There were however about 4, 406 land and environmental disputes that had been in the court system for over three years.

· Given the establishment of the Environment and Land Court (which has the same status as the High Court), there was uncertainty as to whether the magistrates’ courts (which are inferior courts and spread throughout the country) had jurisdiction to hear and determine environment and land disputes. The High Court in Malindi Law Society v Attorney General & 4 others, Constitutional Petition No. 3 of 2016 held that the magistrates’ courts had no such jurisdiction. If this decision were to stand, it would have meant more clogging of the Environment and Land Court and a slower process of resolving such disputes (especially given the relatively few numbers of these courts compared to magistrates’ courts). However, the Court of Appeal in Law Society of Kenya Nairobi Branch v Malindi Law Society & 6 Others, Civil Appeal No. 287 of 2016 reversed this finding and held that magistrates’ courts could hear environment and land disputes as courts of first instance.