[1] This ruling is in respect of the Preliminary Objection raised herein by the 4 th respondent vide his Notice of Preliminary Objection dated 13 th August 2025. He thereby contended that this Court does not have the jurisdiction to hear and determine the claim as the same lies with the Environment and Land Court. Accordingly, the 4 th respondent prayed that the Petition as against him be dismissed with costs.
[2] The Preliminary Objection was canvassed by way of written submissions, pursuant to the directions given herein on 21 st October 2025. In his written submissions dated 30 th January 2025, the 4 th respondent set out the prayers sought by the petitioner and urged the Court to find that, in essence, the subject matter of the Petition is ownership of land parcel No. KAPTUMO TC PLOT NO. 70 (formerly Plot No. 58) situated at Kaptumo Trading Centre within Nandi County; and that the Petition ought to have been filed before the Environment and Land Court.
[3] The 4 th respondent relied on Article 162(2)(b) of the Constitution of Kenya and Section 13 of the Environment and Land Court Act, 2011, as well as the cases of Bank of Africa (K) Ltd & another v TSS Investments Ltd & 2 others , Civil Appeal NO. E055 of 2022 and Cooperative Bank of Kenya Ltd v Patrick Kangethe Njuguna, Civil Appeal No. 83 of 2016 to support his proposition that any issue surrounding the enforcement of a contract and ownership of land should be filed before the Environment and Land Court and not the High Court. He therefore prayed for the dismissal of the Petition with costs.
[4] The petitioner filed written submissions dated 1 st February 2026, contending that his Petition is properly before this Court as his complaints relate to administrative action and constitutional rights and is not a private proprietary dispute. In his submission, neither Section 13 of the Environment and Land Court Act nor the principle in Honey Creepers Investment Limited v CAB Investment Limited [2020] eKLR ousts the High Court’s jurisdiction over constitutional and administrative violations. The petitioner posited that, in the event the Court finds that it lacks jurisdiction, it may transfer the matter to the Environment and Land Court for hearing and determination in the interest of justice.
[5] In the premises, the petitioner proposed the following issues for determination:
[a] Whether this Court has jurisdiction over the Petition in light of Section 13 of the Environment and Land Court Act.
[b] Whether the principle in Honey Creepers Investment Limited v CAB Investment Limited [2020] eKLR ousts the jurisdiction of this Court.
[c] Whether the Petition is barred under the Limitation of Actions Act, Cap 22, specifically Sections 17 and 37 thereof.
[6] It was the submission of the petitioner that, while Section 13 of the Environment and Land Court Act identifies matters within the exclusive jurisdiction of the Environment and Land Court, it does not strip the High Court of its jurisdiction over constitutional and administrative law claims that may incidentally involve land. He relied on Article 165(3) of the Constitution that expressly empowers the High Court to hear and determine constitutional matters, and Article 159(2)(d) which obliges courts to interpret the law in a manner that promotes substantive justice. In this regard, the petitioner relied on Afrison Export Import Limited & another v National Land Commission & 5 others [2023] KEHC 1706 (KLR) where the court held that both the High Court and the Environment and Land Court have concurrent and/or coordinate jurisdiction and could determine constitutional matters when raised.
[7] On whether the principle in Honey Creepers Investment Ltd v CAB Investment Ltd (supra) ousts the jurisdiction of the High Court, the petitioner submitted that the decision is distinguishable on both facts and the applicable principles. In his submission the Honey Creepers case was purely a proprietary contest between private parties, centering on competing claims to land ownership and interests; and therefore the court was invited to determine rights, interest and entitlement to land, which squarely fell within the jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act.
[8] The petitioner urged the Court to take into account its application for amendment to include additional prayers for damages for violation of Articles 28, 40 and 47 of the Constitution. He posited that jurisdiction is not determined by the label of a suit but by the substance of the claim and the reliefs sought. He made reference in this regard to the decision of the Court of Appeal in Orange Democratic Movement v Yusuf Ali Mohamed & 5 others [2018] eKLR and added that the respondents cannot, by selective reliance, convert a constitutional and administrative law dispute into a proprietary land dispute in order to improperly invoke Honey Creepers.
[9] On whether the Petition is barred under Sections 17 and 37 of the Limitation of Actions Act, the petitioner urged the Court to be guided by the decision of the Court of Appeal in Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others [2018] eKLR and find that the Limitation of Actions Act does not apply to violations of rights and freedoms guaranteed by the Constitution.
[10] Lastly, the petitioner submitted that, should the Court find that any aspect of his Petition involves matters that fall within the exclusive jurisdiction of the Environment and Land Court, the proper course would be to transfer the matter to the Environment and Land Court rather than strike out the entire Petition. He cited Articles 165(3), 159(2)(d) and 47 of the Constitution and urged the Court to ensure that justice is served and that the Petition is not defeated by technical procedural objections.
[11] The issue of jurisdiction is primordial, and when thus raised as has been done herein, the Court is obliged to make a determination thereon before turning attention to the merits of the matter before it; for without jurisdiction the Court would be acting in vain. This fact was underscored by Hon. Nyarangi, JA, in Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] eKLR thus:
“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction...Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”
[12] And, in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR, the Supreme Court held that:
"A court's jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred by law. We agree with counsel for the first and second Respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings...Where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution confers power on Parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law."
[13] The jurisdiction of the High Court is provided for under Article 165(3) of the Constitution which stipulates that:
(3) Subject to clause (5), the High Court shall have—
(a) unlimited original jurisdiction in criminal and civil matters;
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;
(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—
(i) the question whether any law is inconsistent with or in contravention of this Constitution;
(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;
(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and
(iv) a question relating to conflict of laws under Article 191; and(e)any other jurisdiction, original or appellate, conferred on it by legislation.
[14] Article 165(5) of the Constitution on the other hand, provides that:
(5) The High Court shall not have jurisdiction in respect of matters: -
a) Reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or
b) Falling within the jurisdiction of the courts contemplated in Article 162(2).
[15] Section 13 of the Environment and Land Court Act, an Act of Parliament enacted pursuant to Article 162(2) of the Constitution is explicit that:
1) The court shall have 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 this Act or any other law applicable in Kenya relating to environment and land.
2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes-
a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources.
b) relating to compulsory acquisition of land;
c) relating to land administration and management;
d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interest in land; and
e) any other dispute relating to environment and land.
[16] In Part A of his Petition, the petitioner stated that the Petition seeks to assert his right to the piece of land known as Kaptumo TC Plot Number 70 (formerly Plot No. 58) situated in Kaptumo Centre. He averred that he purchased the property from one Philip Boor (now deceased) and subsequently established a home thereon. At paragraph 6 of the Petition, the petitioner averred that he has had uninterrupted occupation of the property for a period exceeding 24 years; and that his 8 children have been born and raised on the said parcel of land. At paragraph 11, the petitioner averred that he now faces an imminent threat of eviction, which not only violates his constitutional right to property but also undermines the principles of fairness, justice and good governance; and at paragraph 13 he stated that customary law and long-established use of the land by the local community further reinforces his claim to a secure tenure.
[17] It is plain therefore that although the petitioner invoked the constitutional jurisdiction of the Court, the predominant issue raised in his complaint is ownership of the suit property. Needless to say that issues to do with ownership and title are matters that fall within the jurisdiction of the Environment and Land Court. In Delmonte Kenya Limited v County Government of Murang’a & Another [2019] eKLR a multiple bench of the High Court held that:
“89. In the end we find and hold that the dominant issue in the petition is the right to renewal of leases over the suit land. We further find that the issue is intrinsically connected to the use and title to land. The dispute thus falls squarely within the purview of the ELC under Article 162(2) of the Constitution as read with Section 13 of the ELC Act. We also find that although the petitioner claims violation of various constitutional rights, those claims are intertwined with the dominant issue and that the ELC has jurisdiction to deal with the alleged violations.”
[18] Likewise, in Republic v Chief Land Registrar & another [2019] eKLR Hon. Mativo, J ., (as he then was) being of a similar view, held that:
“14. The jurisdiction of the Environment and Land Court is limited to the disputes contemplated under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. In this regard, my view is that the intention of the Constitution is that if an issue arises touching on land in respect of its use, possession, control, title, compulsory acquisition or any other dispute touching on land, then this Court has no jurisdiction. My strong view is that this suit ought to have been transferred to the proper court the moment the Constitution of Kenya 2010 divested this court the jurisdiction to hear the case. Buttressed by the provisions of the Constitution and section 13 of the Environment and Land Court Act, I am clear in my mind that this court cannot properly entertain the application before me.
15. It is beyond argument that a High Court may not determine matters falling squarely under the jurisdiction of the Employment and Labour Relations Court and the Land and Environment Court, whether it is a substantive hearing or an application such as the instant application.
16. Even with that clear-cut jurisdictional demarcation on paper, sometimes matters camouflaged in what may on the surface appear to be a serious constitutional issues or Judicial Review applications or other matters falling in other High Court divisions may, on a closer scrutiny reveal otherwise - that the germane of the application is actually a labour dispute or land issue falling squarely in the forbidden sphere of the specialized courts! Such is the nature of the application before me. A boundary dispute or enforcing an order relating to a boundary dispute falls squarely in the forbidden sphere of the specialized courts, namely, the Environment and Labour Court. The drafters of the Constitution were very clear on the limits of this court's jurisdiction and the jurisdiction of the courts of equal status.
17. Where the constitution and legislation expressly confers jurisdiction to a court as in the present case, invoking this courts vast jurisdiction is inappropriate. The jurisdictional boundaries of the High Court are clearly spelt out under the Constitution. On this ground, I dismiss the Application dated 26th February 2018.”
[19] The petitioner’s argument that this matter raises both constitutional and administrative law issues and therefore falls within the jurisdiction of the High Court lack traction. This is because Section 13(3) and (4) of the Environment and Land Act provides that:
(3) Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and health environment under Articles 42, 69 and 70 of the Constitution.
(4) In addition to the matters referred to in subsections (1) and (2), the Court shall exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court.
[20] It is my finding therefore that this matter ought to have been filed before the Environment and Land Court; and therefore that this Court lacks the jurisdiction to entertain it. In the premises, there would be no justification for considering the other issues raised by the parties, including the issue of limitation, as the Court is obliged to down its tools the moment it determines that it lacks the requisite jurisdiction to entertain the suit.
[21] The petitioner urged the Court to have the Petition transferred to the Environment and Land Court in the interest of justice, instead of an outright striking out. He relied on Article 159(2)(d) of the Constitution and the authority of Munguti & 12 others v Kenya National Highways Authority & another [2022] KEHC 12658 (KLR). However, in Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] KECA 767 (KLR) the Court of Appeal held:
“Decided cases on this issue are legion and we cannot cite all of them…The Court succinctly settled this point in the following words:-
“ When a suit has been filed in a court without jurisdiction, it is a nullity. Many cases have established that; the most famous being Kagenyi v. Musirambo (1968) EA 43. The same would apply to pecuniary jurisdiction in a claim for special damages where the liquidated sum claimed exceeds the court’s pecuniary jurisdiction.
We hold that jurisdiction cannot be conferred at the time of delivery of judgment. Jurisdiction does not operate retroactively. Jurisdiction must exist at the time of filing suit or latest at the commencement of hearing.
20. It is clear from the foregoing that the claim by the respondent was filed before a court devoid of jurisdiction. The suit was a nullity ab initio and was not transferable to another court; jurisdiction cannot be conferred by consent and ultimately, all orders emanating from that suit are null and void. CIVIL APPEAL NO. 6 OF 2018 PHOENIX EAST AFRICA ASSURANCE CO.LTD v. S.M. THIGA T/A NEWSPAPER SERVICES is therefore a nullity as it was based on a nullity.”
[22] The Supreme Court of Kenya restated the position in Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) [2019] eKLR, as follows:
[154] However, as it was well elucidated in the case of Kagenyi v Musiramo & Another (1968) EALR 43, an order for transfer of a suit from one court to another cannot be made unless the suit has been brought, in the first instance, to a court which has jurisdiction to try it. It is therefore irrelevant as parties cannot consent to confer jurisdiction to a Court/tribunal where it is not provided by law.”
[23] In the circumstances, the Preliminary Objection is hereby upheld and the Petition dated 31 st March 2025 is hereby struck out for want of jurisdiction with no order as to costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT KAPSABET THIS 9 TH DAY OF JULY 2026
[2] The Preliminary Objection was canvassed by way of written submissions, pursuant to the directions given herein on 21 st October 2025. In his written submissions dated 30 th January 2025, the 4 th respondent set out the prayers sought by the petitioner and urged the Court to find that, in essence, the subject matter of the Petition is ownership of land parcel No. KAPTUMO TC PLOT NO. 70 (formerly Plot No. 58) situated at Kaptumo Trading Centre within Nandi County; and that the Petition ought to have been filed before the Environment and Land Court.
[3] The 4 th respondent relied on Article 162(2)(b) of the Constitution of Kenya and Section 13 of the Environment and Land Court Act, 2011, as well as the cases of Bank of Africa (K) Ltd & another v TSS Investments Ltd & 2 others , Civil Appeal NO. E055 of 2022 and Cooperative Bank of Kenya Ltd v Patrick Kangethe Njuguna, Civil Appeal No. 83 of 2016 to support his proposition that any issue surrounding the enforcement of a contract and ownership of land should be filed before the Environment and Land Court and not the High Court. He therefore prayed for the dismissal of the Petition with costs.
[4] The petitioner filed written submissions dated 1 st February 2026, contending that his Petition is properly before this Court as his complaints relate to administrative action and constitutional rights and is not a private proprietary dispute. In his submission, neither Section 13 of the Environment and Land Court Act nor the principle in Honey Creepers Investment Limited v CAB Investment Limited [2020] eKLR ousts the High Court’s jurisdiction over constitutional and administrative violations. The petitioner posited that, in the event the Court finds that it lacks jurisdiction, it may transfer the matter to the Environment and Land Court for hearing and determination in the interest of justice.
[5] In the premises, the petitioner proposed the following issues for determination:
[a] Whether this Court has jurisdiction over the Petition in light of Section 13 of the Environment and Land Court Act.
[b] Whether the principle in Honey Creepers Investment Limited v CAB Investment Limited [2020] eKLR ousts the jurisdiction of this Court.
[c] Whether the Petition is barred under the Limitation of Actions Act, Cap 22, specifically Sections 17 and 37 thereof.
[6] It was the submission of the petitioner that, while Section 13 of the Environment and Land Court Act identifies matters within the exclusive jurisdiction of the Environment and Land Court, it does not strip the High Court of its jurisdiction over constitutional and administrative law claims that may incidentally involve land. He relied on Article 165(3) of the Constitution that expressly empowers the High Court to hear and determine constitutional matters, and Article 159(2)(d) which obliges courts to interpret the law in a manner that promotes substantive justice. In this regard, the petitioner relied on Afrison Export Import Limited & another v National Land Commission & 5 others [2023] KEHC 1706 (KLR) where the court held that both the High Court and the Environment and Land Court have concurrent and/or coordinate jurisdiction and could determine constitutional matters when raised.
[7] On whether the principle in Honey Creepers Investment Ltd v CAB Investment Ltd (supra) ousts the jurisdiction of the High Court, the petitioner submitted that the decision is distinguishable on both facts and the applicable principles. In his submission the Honey Creepers case was purely a proprietary contest between private parties, centering on competing claims to land ownership and interests; and therefore the court was invited to determine rights, interest and entitlement to land, which squarely fell within the jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act.
[8] The petitioner urged the Court to take into account its application for amendment to include additional prayers for damages for violation of Articles 28, 40 and 47 of the Constitution. He posited that jurisdiction is not determined by the label of a suit but by the substance of the claim and the reliefs sought. He made reference in this regard to the decision of the Court of Appeal in Orange Democratic Movement v Yusuf Ali Mohamed & 5 others [2018] eKLR and added that the respondents cannot, by selective reliance, convert a constitutional and administrative law dispute into a proprietary land dispute in order to improperly invoke Honey Creepers.
[9] On whether the Petition is barred under Sections 17 and 37 of the Limitation of Actions Act, the petitioner urged the Court to be guided by the decision of the Court of Appeal in Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others [2018] eKLR and find that the Limitation of Actions Act does not apply to violations of rights and freedoms guaranteed by the Constitution.
[10] Lastly, the petitioner submitted that, should the Court find that any aspect of his Petition involves matters that fall within the exclusive jurisdiction of the Environment and Land Court, the proper course would be to transfer the matter to the Environment and Land Court rather than strike out the entire Petition. He cited Articles 165(3), 159(2)(d) and 47 of the Constitution and urged the Court to ensure that justice is served and that the Petition is not defeated by technical procedural objections.
[11] The issue of jurisdiction is primordial, and when thus raised as has been done herein, the Court is obliged to make a determination thereon before turning attention to the merits of the matter before it; for without jurisdiction the Court would be acting in vain. This fact was underscored by Hon. Nyarangi, JA, in Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] eKLR thus:
“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction...Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”
[12] And, in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR, the Supreme Court held that:
"A court's jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred by law. We agree with counsel for the first and second Respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings...Where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution confers power on Parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law."
[13] The jurisdiction of the High Court is provided for under Article 165(3) of the Constitution which stipulates that:
(3) Subject to clause (5), the High Court shall have—
(a) unlimited original jurisdiction in criminal and civil matters;
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;
(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—
(i) the question whether any law is inconsistent with or in contravention of this Constitution;
(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;
(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and
(iv) a question relating to conflict of laws under Article 191; and(e)any other jurisdiction, original or appellate, conferred on it by legislation.
[14] Article 165(5) of the Constitution on the other hand, provides that:
(5) The High Court shall not have jurisdiction in respect of matters: -
a) Reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or
b) Falling within the jurisdiction of the courts contemplated in Article 162(2).
[15] Section 13 of the Environment and Land Court Act, an Act of Parliament enacted pursuant to Article 162(2) of the Constitution is explicit that:
1) The court shall have 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 this Act or any other law applicable in Kenya relating to environment and land.
2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes-
a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources.
b) relating to compulsory acquisition of land;
c) relating to land administration and management;
d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interest in land; and
e) any other dispute relating to environment and land.
[16] In Part A of his Petition, the petitioner stated that the Petition seeks to assert his right to the piece of land known as Kaptumo TC Plot Number 70 (formerly Plot No. 58) situated in Kaptumo Centre. He averred that he purchased the property from one Philip Boor (now deceased) and subsequently established a home thereon. At paragraph 6 of the Petition, the petitioner averred that he has had uninterrupted occupation of the property for a period exceeding 24 years; and that his 8 children have been born and raised on the said parcel of land. At paragraph 11, the petitioner averred that he now faces an imminent threat of eviction, which not only violates his constitutional right to property but also undermines the principles of fairness, justice and good governance; and at paragraph 13 he stated that customary law and long-established use of the land by the local community further reinforces his claim to a secure tenure.
[17] It is plain therefore that although the petitioner invoked the constitutional jurisdiction of the Court, the predominant issue raised in his complaint is ownership of the suit property. Needless to say that issues to do with ownership and title are matters that fall within the jurisdiction of the Environment and Land Court. In Delmonte Kenya Limited v County Government of Murang’a & Another [2019] eKLR a multiple bench of the High Court held that:
“89. In the end we find and hold that the dominant issue in the petition is the right to renewal of leases over the suit land. We further find that the issue is intrinsically connected to the use and title to land. The dispute thus falls squarely within the purview of the ELC under Article 162(2) of the Constitution as read with Section 13 of the ELC Act. We also find that although the petitioner claims violation of various constitutional rights, those claims are intertwined with the dominant issue and that the ELC has jurisdiction to deal with the alleged violations.”
[18] Likewise, in Republic v Chief Land Registrar & another [2019] eKLR Hon. Mativo, J ., (as he then was) being of a similar view, held that:
“14. The jurisdiction of the Environment and Land Court is limited to the disputes contemplated under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. In this regard, my view is that the intention of the Constitution is that if an issue arises touching on land in respect of its use, possession, control, title, compulsory acquisition or any other dispute touching on land, then this Court has no jurisdiction. My strong view is that this suit ought to have been transferred to the proper court the moment the Constitution of Kenya 2010 divested this court the jurisdiction to hear the case. Buttressed by the provisions of the Constitution and section 13 of the Environment and Land Court Act, I am clear in my mind that this court cannot properly entertain the application before me.
15. It is beyond argument that a High Court may not determine matters falling squarely under the jurisdiction of the Employment and Labour Relations Court and the Land and Environment Court, whether it is a substantive hearing or an application such as the instant application.
16. Even with that clear-cut jurisdictional demarcation on paper, sometimes matters camouflaged in what may on the surface appear to be a serious constitutional issues or Judicial Review applications or other matters falling in other High Court divisions may, on a closer scrutiny reveal otherwise - that the germane of the application is actually a labour dispute or land issue falling squarely in the forbidden sphere of the specialized courts! Such is the nature of the application before me. A boundary dispute or enforcing an order relating to a boundary dispute falls squarely in the forbidden sphere of the specialized courts, namely, the Environment and Labour Court. The drafters of the Constitution were very clear on the limits of this court's jurisdiction and the jurisdiction of the courts of equal status.
17. Where the constitution and legislation expressly confers jurisdiction to a court as in the present case, invoking this courts vast jurisdiction is inappropriate. The jurisdictional boundaries of the High Court are clearly spelt out under the Constitution. On this ground, I dismiss the Application dated 26th February 2018.”
[19] The petitioner’s argument that this matter raises both constitutional and administrative law issues and therefore falls within the jurisdiction of the High Court lack traction. This is because Section 13(3) and (4) of the Environment and Land Act provides that:
(3) Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and health environment under Articles 42, 69 and 70 of the Constitution.
(4) In addition to the matters referred to in subsections (1) and (2), the Court shall exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court.
[20] It is my finding therefore that this matter ought to have been filed before the Environment and Land Court; and therefore that this Court lacks the jurisdiction to entertain it. In the premises, there would be no justification for considering the other issues raised by the parties, including the issue of limitation, as the Court is obliged to down its tools the moment it determines that it lacks the requisite jurisdiction to entertain the suit.
[21] The petitioner urged the Court to have the Petition transferred to the Environment and Land Court in the interest of justice, instead of an outright striking out. He relied on Article 159(2)(d) of the Constitution and the authority of Munguti & 12 others v Kenya National Highways Authority & another [2022] KEHC 12658 (KLR). However, in Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] KECA 767 (KLR) the Court of Appeal held:
“Decided cases on this issue are legion and we cannot cite all of them…The Court succinctly settled this point in the following words:-
“ When a suit has been filed in a court without jurisdiction, it is a nullity. Many cases have established that; the most famous being Kagenyi v. Musirambo (1968) EA 43. The same would apply to pecuniary jurisdiction in a claim for special damages where the liquidated sum claimed exceeds the court’s pecuniary jurisdiction.
We hold that jurisdiction cannot be conferred at the time of delivery of judgment. Jurisdiction does not operate retroactively. Jurisdiction must exist at the time of filing suit or latest at the commencement of hearing.
20. It is clear from the foregoing that the claim by the respondent was filed before a court devoid of jurisdiction. The suit was a nullity ab initio and was not transferable to another court; jurisdiction cannot be conferred by consent and ultimately, all orders emanating from that suit are null and void. CIVIL APPEAL NO. 6 OF 2018 PHOENIX EAST AFRICA ASSURANCE CO.LTD v. S.M. THIGA T/A NEWSPAPER SERVICES is therefore a nullity as it was based on a nullity.”
[22] The Supreme Court of Kenya restated the position in Albert Chaurembo Mumba & 7 others (sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions Scheme) v Maurice Munyao & 148 others (suing on their own behalf and on behalf of the Plaintiffs and other Members/Beneficiaries of the Kenya Ports Authority Pensions Scheme) [2019] eKLR, as follows:
[154] However, as it was well elucidated in the case of Kagenyi v Musiramo & Another (1968) EALR 43, an order for transfer of a suit from one court to another cannot be made unless the suit has been brought, in the first instance, to a court which has jurisdiction to try it. It is therefore irrelevant as parties cannot consent to confer jurisdiction to a Court/tribunal where it is not provided by law.”
[23] In the circumstances, the Preliminary Objection is hereby upheld and the Petition dated 31 st March 2025 is hereby struck out for want of jurisdiction with no order as to costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT KAPSABET THIS 9 TH DAY OF JULY 2026