RULING ON THE PRELIMINARY OBJECTION DATED 27.1.25
Introduction
1. Before this Court is a Preliminary Objection raised by the 1st and 2nd Respondents dated 27th January, 2025, challenging the jurisdiction of this Court to hear and determine both the Notice of Motion and the Petition herein.
2. The objection is premised on Articles 162(2)(b) and 165(5)(b) of the Constitution of Kenya, 2010 as read together with Section 13(2) of the Environment and Land Court Act, 2011. The Respondents contend that the gist of the dispute is land use, occupation, and administration and therefore falls within the exclusive jurisdiction of the Environment and Land Court (ELC).
3. The Petitioners oppose the objection, contending that their grievance primarily concerns alleged violations of constitutional rights, including the right to property, fair administrative action, fair hearing, equality, and human dignity, thereby properly invoking the jurisdiction of the High Court under Article 165(3)(b) of the Constitution.
Whether the Objection Raises a Proper Preliminary Objection
4. A Preliminary Objection must meet the threshold set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, namely, that it raises a pure point of law which, if argued successfully, may dispose of the suit without the need to ascertain contested facts.
5. An objection on Jurisdiction is a pure point of law and may be raised at any stage of proceedings. The objection before this Court therefore properly qualifies as a preliminary objection.
Issue for Determination
6. The sole issue for determination is whether this Court has jurisdiction to hear and determine the Petition and the accompanying Notice of Motion.
Analysis
7. Jurisdiction is the lifeblood of any judicial proceeding. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, the Court emphatically held that jurisdiction is everything and without it, a court must down its tools.
8. Article 162(2)(b) of the Constitution mandates Parliament to establish courts with the status of the High Court to hear and determine disputes relating to the environment and the use and occupation of, and title to land. Pursuant thereto, the Environment and Land Court was established.
9. Article 165(5)(b) of the Constitution expressly divests the High Court of jurisdiction in matters falling within the purview of the courts contemplated under Article 162(2).
10. Section 13(2) of the Environment and Land Court Act grants the ELC jurisdiction over disputes relating to, inter alia:
• land use planning;
• land administration;
• public, private and community land; and
• any other dispute relating to environment and land.
11. The Petition herein challenges a demolition notice issued in respect of kiosks/stalls situated within Kisii Municipality, as well as the policy and conditions governing the construction, maintenance, and approval of such structures. These kiosks are structures affixed to land and are regulated under municipal land use and planning frameworks.
12. While the Petition is framed as a constitutional petition alleging violations of Articles 27, 28, 40, 47, and 50 of the Constitution, the substratum of the dispute is the legality and propriety of actions taken by the Respondents in the administration and regulation of land use within the municipality.
13. The Court of Appeal in Samuel Kamau Macharia & Another v Attorney General & Others [2018] eKLR affirmed that jurisdiction is conferred by the Constitution and statute, and a court cannot arrogate to itself jurisdiction not so donated.
14. Further, in Suzanne Achieng Butler & 4 Others v Redhill Heights Investments Limited & Another [2018] eKLR, the Court held that where constitutional issues arise incidentally in disputes falling within the jurisdiction of specialised courts, such disputes must be heard and determined by those courts.
15. Similarly, in Malindi Law Society v Attorney General & 4 Others [2016] eKLR, the Court clarified that constitutional petitions touching on land and environmental matters fall within the exclusive jurisdiction of the Environment and Land Court, notwithstanding the invocation of the Bill of Rights.
16. The Environment and Land Court is a court of equal jurisdiction to this court under Article 162 (2) (b) of the Constitution and hence it has jurisdiction he hear and determine allegations of violations of the Bill of Rights regarding land and environment . This Court is therefore persuaded that the issues raised in the Petition relate to land use planning, administration, and occupation, matters which fall squarely within the jurisdiction of the Environment and Land Court.
Disposition
17. In light of the foregoing, this Court finds that it lacks jurisdiction to hear and determine the Petition and the Notice of Motion herein. Article 159(2)(d) of the Constitution is not a panacea for gaps of Jurisdiction as without jurisdiction the court must pen down .
Orders
19. Accordingly, the Court makes the following orders:
a) The Preliminary Objection dated 27th January, 2025 is upheld.
b) This Court hereby downs its tools for want of jurisdiction.
c) The Petition and the Notice of Motion dated 27th January, 2025 are hereby struck out .
d) Costs to the respondent .
T. A ODERA
JUDGE OF THE HIGH COURT
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 3RD DAY OF FEBRUARY 2026 IN THE PRESENCE OF MISS GITHINJI FOR THE RESPONDENT, NO APPEARANCE FOR THE PETITIONERS & CA - MR KIPCHIRCHIR
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Introduction
1. Before this Court is a Preliminary Objection raised by the 1st and 2nd Respondents dated 27th January, 2025, challenging the jurisdiction of this Court to hear and determine both the Notice of Motion and the Petition herein.
2. The objection is premised on Articles 162(2)(b) and 165(5)(b) of the Constitution of Kenya, 2010 as read together with Section 13(2) of the Environment and Land Court Act, 2011. The Respondents contend that the gist of the dispute is land use, occupation, and administration and therefore falls within the exclusive jurisdiction of the Environment and Land Court (ELC).
3. The Petitioners oppose the objection, contending that their grievance primarily concerns alleged violations of constitutional rights, including the right to property, fair administrative action, fair hearing, equality, and human dignity, thereby properly invoking the jurisdiction of the High Court under Article 165(3)(b) of the Constitution.
Whether the Objection Raises a Proper Preliminary Objection
4. A Preliminary Objection must meet the threshold set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, namely, that it raises a pure point of law which, if argued successfully, may dispose of the suit without the need to ascertain contested facts.
5. An objection on Jurisdiction is a pure point of law and may be raised at any stage of proceedings. The objection before this Court therefore properly qualifies as a preliminary objection.
Issue for Determination
6. The sole issue for determination is whether this Court has jurisdiction to hear and determine the Petition and the accompanying Notice of Motion.
Analysis
7. Jurisdiction is the lifeblood of any judicial proceeding. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, the Court emphatically held that jurisdiction is everything and without it, a court must down its tools.
8. Article 162(2)(b) of the Constitution mandates Parliament to establish courts with the status of the High Court to hear and determine disputes relating to the environment and the use and occupation of, and title to land. Pursuant thereto, the Environment and Land Court was established.
9. Article 165(5)(b) of the Constitution expressly divests the High Court of jurisdiction in matters falling within the purview of the courts contemplated under Article 162(2).
10. Section 13(2) of the Environment and Land Court Act grants the ELC jurisdiction over disputes relating to, inter alia:
• land use planning;
• land administration;
• public, private and community land; and
• any other dispute relating to environment and land.
11. The Petition herein challenges a demolition notice issued in respect of kiosks/stalls situated within Kisii Municipality, as well as the policy and conditions governing the construction, maintenance, and approval of such structures. These kiosks are structures affixed to land and are regulated under municipal land use and planning frameworks.
12. While the Petition is framed as a constitutional petition alleging violations of Articles 27, 28, 40, 47, and 50 of the Constitution, the substratum of the dispute is the legality and propriety of actions taken by the Respondents in the administration and regulation of land use within the municipality.
13. The Court of Appeal in Samuel Kamau Macharia & Another v Attorney General & Others [2018] eKLR affirmed that jurisdiction is conferred by the Constitution and statute, and a court cannot arrogate to itself jurisdiction not so donated.
14. Further, in Suzanne Achieng Butler & 4 Others v Redhill Heights Investments Limited & Another [2018] eKLR, the Court held that where constitutional issues arise incidentally in disputes falling within the jurisdiction of specialised courts, such disputes must be heard and determined by those courts.
15. Similarly, in Malindi Law Society v Attorney General & 4 Others [2016] eKLR, the Court clarified that constitutional petitions touching on land and environmental matters fall within the exclusive jurisdiction of the Environment and Land Court, notwithstanding the invocation of the Bill of Rights.
16. The Environment and Land Court is a court of equal jurisdiction to this court under Article 162 (2) (b) of the Constitution and hence it has jurisdiction he hear and determine allegations of violations of the Bill of Rights regarding land and environment . This Court is therefore persuaded that the issues raised in the Petition relate to land use planning, administration, and occupation, matters which fall squarely within the jurisdiction of the Environment and Land Court.
Disposition
17. In light of the foregoing, this Court finds that it lacks jurisdiction to hear and determine the Petition and the Notice of Motion herein. Article 159(2)(d) of the Constitution is not a panacea for gaps of Jurisdiction as without jurisdiction the court must pen down .
Orders
19. Accordingly, the Court makes the following orders:
a) The Preliminary Objection dated 27th January, 2025 is upheld.
b) This Court hereby downs its tools for want of jurisdiction.
c) The Petition and the Notice of Motion dated 27th January, 2025 are hereby struck out .
d) Costs to the respondent .
T. A ODERA
JUDGE OF THE HIGH COURT
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 3RD DAY OF FEBRUARY 2026 IN THE PRESENCE OF MISS GITHINJI FOR THE RESPONDENT, NO APPEARANCE FOR THE PETITIONERS & CA - MR KIPCHIRCHIR
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