(On the Notice of Motion Application dated 15th May 2025 and 10th September 2025)
1. This is a ruling on the Notice of Motion Applications dated 15th May 2025 and 10th September 2025. Both Applications are brought under Articles 22, 23(3), 27, 40, 47 and 50(1) of the Constitution of Kenya, 2010, and under Order 40 Rules 1 and 2, and Order 22 Rule 4(3) of the Civil Procedure Rules, 2010, and seek conservatory and injunctive relief to preserve the suit property, LR No. NYANDARUA/NANDARASI/214, pending the hearing and determination of the Petition.
2. The Petitioner is Esther Njuhi Ndirangu, suing as the duly appointed Administrator of the Estate of the late Kinyanjui Kangethe. The Respondent was the plaintiff in ELC Case No. 253 of 2012 (formerly Nyahururu CMCC No. 1 of 2008), the decree of which is sought to be executed against Title No. NYANDARUA/NANDARASI/214. The Respondent filed a Replying Affidavit, sworn on 5th November 2025, opposing the Applications. The Petitioner filed an Affidavit in Rejoinder, deponed to on 8th November 2025.
3. The original suit, Nyahururu CMCC No. 1 of 2008 (later EL.C. No. 253 of 2012), was brought by Maria Wangari Muhia, the Respondent's mother, against Wahinya Koibita Kangethe, the father of the late Kinyanjui Kangethe. Kinyanjui Kangethe was not an original party to that suit. The Respondent substituted himself as the Plaintiff in 2001, upon his mother's death, as shown in annexure MM3 to his Replying Affidavit.
4. The Respondent sought leave in EL.C. No. 253 of 2012 to add other persons as defendants. The leave was granted, and he added Kinyanjui Kangethe, against whom judgment was entered in the suit, albeit after his demise.
5. The 4th Interested Party died in 2018, as evidenced by annexure EN13. Notwithstanding her death, execution measures continued to be taken in her name. An inhibition was registered against Title No. NYANDARUA/NANDARASI/214 on 2nd December 2021; a proclamation was scheduled on 7th February 2022; and a 45-day redemption notice together with a notification of sale were issued on 6th March 2024 (annexures EN9 and EN10), naming both the 4th Interested party and Kinyanjui Kangethe as judgment debtors notwithstanding their demise.
6. The Respondent deposes in paragraph 6 of his replying affidavit that LR No. NYANDARUA/NANDARASI/214 is registered in the name of the 1st Interested Party, and that the Petitioner accordingly lacks capacity to bring these proceedings, exhibiting the title deed as MM1. In paragraph 12 of the affidavit, he admits that the auction notice was issued on 6th March 2024 and that no advertisement of sale of the property has since been made.
7. The Respondent admits registering an inhibition over Title No. NYANDARUA/NANDARASI/214 "to protect his family interests" in the sum of Kes 13,177,567 and taking possession of, occupying, and cultivating part of the property and merging part of it with Title No Nyandarua/Mkungi/231 (annexure MM5).
8. The Respondent’s position is that this Court lacks jurisdiction and that the matter is res judicata by reason of the judgment and proceedings in EL.C. No. 253 of 2012.
9. The Respondent's objection goes to the court's jurisdiction. This must be determined first, and, if upheld, disposes of the Applications without recourse to their merits.
10. It is settled that jurisdiction is everything. In Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1, Nyarangi JA held that jurisdiction "is everything and without it, a court has no power to make one more step," and that where a court holds that it has no jurisdiction, it has no jurisdiction to do anything further than to down its tools. It is equally settled that a question of jurisdiction, once raised, must be determined forthwith and on a priority basis, before any other step is taken.
11. Jurisdiction cannot be conferred by the consent or acquiescence of the parties, nor assumed merely because it would be convenient to grant the relief sought. As the Supreme Court held in Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR), a court's jurisdiction flows from the Constitution, or statute, or both, and a court cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.
12. It follows that, however urgent the reliefs sought in the Applications may appear and however concerning the underlying facts, the court should first address the jurisdictional objection before considering whether a prima facie case, irreparable harm, or a favourable balance of convenience has been made out. It shall be in vain for the court to delve into the objections as to res judicata or locus standi raised by the Respondent without first determining the issue of jurisdiction.
13. Article 162(2)(b) of the Constitution of Kenya, 2010 mandates Parliament to establish a court of 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.
14. Parliament gave effect to this through Section 13 of the Environment and Land Court Act, No. 19 of 2011, which vests the Environment and Land Court with original and appellate jurisdiction to hear and determine disputes relating to, among other things, title, tenure and boundaries of land, and public, private and community land and instruments granting enforceable interests in land.
15. The Supreme Court, in Republic v Chengo & 2 others [2017] KESC 15 (KLR) held that the High Court, the Environment and Land Court and the Employment and Labour Relations Court, although courts of equal status, exercise separate and distinct jurisdictions, and that the exclusion operates in both directions. Article 165(5) of the Constitution of Kenya,2010 bars the High Court from entertaining matters reserved for the Environment and Land Court or Employment and Labour Relations Court, so are the two specialized courts barred from entertaining matters reserved to the High Court. The Court at paragraph 50 of its ruling held that status is not the same thing as jurisdiction. The former denotes hierarchy, the latter the sphere of the court's operation.
16. The determinative question, on the authorities, is not whether a Petition invokes constitutional provisions, but what the predominant purpose or substratum of the dispute is. In Ng’ang’a & 11 others v Cabinet Secretary Ministry of Land & Public Works, Housing and Urban Development & another [2025] KEHC 13143 (KLR)the court struck out, for want of jurisdiction, a Petition that combined land-occupation relief with claims under Articles 43 and 47 of the Constitution of Kenya,2010 holding that "the pre-dominant purpose/objective that informs this Petition was land “.... this is a dispute for the Environment and Land Court to adjudicate even if there are ensuing constitutional violations as it touches on land and environment, it is not for the High Court."
17. The position taken by the Court of Appeal in Mugweru & 4 others (Being the administratrices of the Estate of Maaka Mukuhi Mugweru (Deceased))) v National Land Commission & 5 others; Estate of Samuel Mugweru Wathirwa & another (Interested Parties) [2022] KEHC 13252 (KLR) which were similar to the present matter, the Court held that "..where the substratum of a dispute is founded on [land], the matter should be exclusively dealt with in the Environment and Land Court," even where the dispute is said to raise constitutional issues or issues touching on the protection and enforcement of the right to property in land.
18. Applying that test to the present matter, the substratum of both the Petition and the Applications is Title No. NYANDARUA/NANDARASI/214. Every substantive relief sought in the applications is a remedy in relation to the property.
19. The mere citing of Articles 27, 40, 47 and 50 of the Constitution of Kenya,2010 does not clothe this court with jurisdiction to determine the claim. It is on the strength of the authorities cited above, and the combination of land relief dressed in constitutional language, that this Court has repeatedly held that such matters fall to be determined by the Environment and Land Court.
20. The court notes that the decree sought to be executed, and whose execution is impugned as unconstitutional, was issued by the Environment and Land Court in EL.C. Case No. 253 of 2012. The propriety of executing that decree, including compliance with Order 22 Rule 4(3) of the Civil Procedure Rules following the death of judgment debtors, is a matter falling within the execution jurisdiction of the court that issued the decree. A challenge to that execution, brought as a fresh constitutional petition in a different court of equal, but not superior, status, does not confer jurisdiction upon this court.
21. I am alive to the fact that the Environment and Land Court, exercising its jurisdiction under Section 13 of the Environment and Land Court Act, is fully equipped to grant every order sought in the Applications and to determine the constitutional issues raised in the Petition insofar as they are anchored in and arise from the land dispute and the decree in ELC No. 253 of 2012.
22. Having found that this Court lacks jurisdiction to entertain the Applications, I make no finding on prima facie case, irreparable harm, balance of convenience, the validity of execution against deceased persons, locus standi, or res judicata.
23. Accordingly, I make the following orders:
a) The Respondent's objection to the jurisdiction of this Court is upheld;
b) The Notice of Motion dated 15th May 2025 and the Notice of Motion dated 10th September 2025 are hereby struck out for want of jurisdiction; and
c) Each party shall bear its own costs of the Applications.
24. It is so ordered.
Dated and signed at Nairobi this 30th day of July 2026.
1. This is a ruling on the Notice of Motion Applications dated 15th May 2025 and 10th September 2025. Both Applications are brought under Articles 22, 23(3), 27, 40, 47 and 50(1) of the Constitution of Kenya, 2010, and under Order 40 Rules 1 and 2, and Order 22 Rule 4(3) of the Civil Procedure Rules, 2010, and seek conservatory and injunctive relief to preserve the suit property, LR No. NYANDARUA/NANDARASI/214, pending the hearing and determination of the Petition.
2. The Petitioner is Esther Njuhi Ndirangu, suing as the duly appointed Administrator of the Estate of the late Kinyanjui Kangethe. The Respondent was the plaintiff in ELC Case No. 253 of 2012 (formerly Nyahururu CMCC No. 1 of 2008), the decree of which is sought to be executed against Title No. NYANDARUA/NANDARASI/214. The Respondent filed a Replying Affidavit, sworn on 5th November 2025, opposing the Applications. The Petitioner filed an Affidavit in Rejoinder, deponed to on 8th November 2025.
3. The original suit, Nyahururu CMCC No. 1 of 2008 (later EL.C. No. 253 of 2012), was brought by Maria Wangari Muhia, the Respondent's mother, against Wahinya Koibita Kangethe, the father of the late Kinyanjui Kangethe. Kinyanjui Kangethe was not an original party to that suit. The Respondent substituted himself as the Plaintiff in 2001, upon his mother's death, as shown in annexure MM3 to his Replying Affidavit.
4. The Respondent sought leave in EL.C. No. 253 of 2012 to add other persons as defendants. The leave was granted, and he added Kinyanjui Kangethe, against whom judgment was entered in the suit, albeit after his demise.
5. The 4th Interested Party died in 2018, as evidenced by annexure EN13. Notwithstanding her death, execution measures continued to be taken in her name. An inhibition was registered against Title No. NYANDARUA/NANDARASI/214 on 2nd December 2021; a proclamation was scheduled on 7th February 2022; and a 45-day redemption notice together with a notification of sale were issued on 6th March 2024 (annexures EN9 and EN10), naming both the 4th Interested party and Kinyanjui Kangethe as judgment debtors notwithstanding their demise.
6. The Respondent deposes in paragraph 6 of his replying affidavit that LR No. NYANDARUA/NANDARASI/214 is registered in the name of the 1st Interested Party, and that the Petitioner accordingly lacks capacity to bring these proceedings, exhibiting the title deed as MM1. In paragraph 12 of the affidavit, he admits that the auction notice was issued on 6th March 2024 and that no advertisement of sale of the property has since been made.
7. The Respondent admits registering an inhibition over Title No. NYANDARUA/NANDARASI/214 "to protect his family interests" in the sum of Kes 13,177,567 and taking possession of, occupying, and cultivating part of the property and merging part of it with Title No Nyandarua/Mkungi/231 (annexure MM5).
8. The Respondent’s position is that this Court lacks jurisdiction and that the matter is res judicata by reason of the judgment and proceedings in EL.C. No. 253 of 2012.
9. The Respondent's objection goes to the court's jurisdiction. This must be determined first, and, if upheld, disposes of the Applications without recourse to their merits.
10. It is settled that jurisdiction is everything. In Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1, Nyarangi JA held that jurisdiction "is everything and without it, a court has no power to make one more step," and that where a court holds that it has no jurisdiction, it has no jurisdiction to do anything further than to down its tools. It is equally settled that a question of jurisdiction, once raised, must be determined forthwith and on a priority basis, before any other step is taken.
11. Jurisdiction cannot be conferred by the consent or acquiescence of the parties, nor assumed merely because it would be convenient to grant the relief sought. As the Supreme Court held in Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR), a court's jurisdiction flows from the Constitution, or statute, or both, and a court cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.
12. It follows that, however urgent the reliefs sought in the Applications may appear and however concerning the underlying facts, the court should first address the jurisdictional objection before considering whether a prima facie case, irreparable harm, or a favourable balance of convenience has been made out. It shall be in vain for the court to delve into the objections as to res judicata or locus standi raised by the Respondent without first determining the issue of jurisdiction.
13. Article 162(2)(b) of the Constitution of Kenya, 2010 mandates Parliament to establish a court of 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.
14. Parliament gave effect to this through Section 13 of the Environment and Land Court Act, No. 19 of 2011, which vests the Environment and Land Court with original and appellate jurisdiction to hear and determine disputes relating to, among other things, title, tenure and boundaries of land, and public, private and community land and instruments granting enforceable interests in land.
15. The Supreme Court, in Republic v Chengo & 2 others [2017] KESC 15 (KLR) held that the High Court, the Environment and Land Court and the Employment and Labour Relations Court, although courts of equal status, exercise separate and distinct jurisdictions, and that the exclusion operates in both directions. Article 165(5) of the Constitution of Kenya,2010 bars the High Court from entertaining matters reserved for the Environment and Land Court or Employment and Labour Relations Court, so are the two specialized courts barred from entertaining matters reserved to the High Court. The Court at paragraph 50 of its ruling held that status is not the same thing as jurisdiction. The former denotes hierarchy, the latter the sphere of the court's operation.
16. The determinative question, on the authorities, is not whether a Petition invokes constitutional provisions, but what the predominant purpose or substratum of the dispute is. In Ng’ang’a & 11 others v Cabinet Secretary Ministry of Land & Public Works, Housing and Urban Development & another [2025] KEHC 13143 (KLR)the court struck out, for want of jurisdiction, a Petition that combined land-occupation relief with claims under Articles 43 and 47 of the Constitution of Kenya,2010 holding that "the pre-dominant purpose/objective that informs this Petition was land “.... this is a dispute for the Environment and Land Court to adjudicate even if there are ensuing constitutional violations as it touches on land and environment, it is not for the High Court."
17. The position taken by the Court of Appeal in Mugweru & 4 others (Being the administratrices of the Estate of Maaka Mukuhi Mugweru (Deceased))) v National Land Commission & 5 others; Estate of Samuel Mugweru Wathirwa & another (Interested Parties) [2022] KEHC 13252 (KLR) which were similar to the present matter, the Court held that "..where the substratum of a dispute is founded on [land], the matter should be exclusively dealt with in the Environment and Land Court," even where the dispute is said to raise constitutional issues or issues touching on the protection and enforcement of the right to property in land.
18. Applying that test to the present matter, the substratum of both the Petition and the Applications is Title No. NYANDARUA/NANDARASI/214. Every substantive relief sought in the applications is a remedy in relation to the property.
19. The mere citing of Articles 27, 40, 47 and 50 of the Constitution of Kenya,2010 does not clothe this court with jurisdiction to determine the claim. It is on the strength of the authorities cited above, and the combination of land relief dressed in constitutional language, that this Court has repeatedly held that such matters fall to be determined by the Environment and Land Court.
20. The court notes that the decree sought to be executed, and whose execution is impugned as unconstitutional, was issued by the Environment and Land Court in EL.C. Case No. 253 of 2012. The propriety of executing that decree, including compliance with Order 22 Rule 4(3) of the Civil Procedure Rules following the death of judgment debtors, is a matter falling within the execution jurisdiction of the court that issued the decree. A challenge to that execution, brought as a fresh constitutional petition in a different court of equal, but not superior, status, does not confer jurisdiction upon this court.
21. I am alive to the fact that the Environment and Land Court, exercising its jurisdiction under Section 13 of the Environment and Land Court Act, is fully equipped to grant every order sought in the Applications and to determine the constitutional issues raised in the Petition insofar as they are anchored in and arise from the land dispute and the decree in ELC No. 253 of 2012.
22. Having found that this Court lacks jurisdiction to entertain the Applications, I make no finding on prima facie case, irreparable harm, balance of convenience, the validity of execution against deceased persons, locus standi, or res judicata.
23. Accordingly, I make the following orders:
a) The Respondent's objection to the jurisdiction of this Court is upheld;
b) The Notice of Motion dated 15th May 2025 and the Notice of Motion dated 10th September 2025 are hereby struck out for want of jurisdiction; and
c) Each party shall bear its own costs of the Applications.
24. It is so ordered.
Dated and signed at Nairobi this 30th day of July 2026.