BACKGROUND
1. The petition concerns Land Reference No. 2935 in Embakasi, Nairobi, originally allocated to the Nairobi City Council and later to the Dupoto/Dafur Settlement Welfare Scheme. The petitioner alleges that after Kenya Railways Corporation compulsorily acquired part of the land for the Standard Gauge Railway project, the remaining land and compensation funds were irregularly handled. Specifically, the petitioner claims that 38 acres were surrendered without compensation; 55 acres were sold without members’ authority, and Kshs. 2.75 billion in compensation was diverted to law firms and individuals while genuine scheme members received nominal payments.
2. The respondents and the 3rd interested party raised preliminary objections, mainly arguing that the High Court lacks jurisdiction because the dispute is fundamentally about land ownership, title, compulsory acquisition, compensation, alienation, and transfer, matters falling within the exclusive jurisdiction of the Environment and Land Court. They also argue that some prayers interfere with the constitutional independence of investigative and prosecutorial agencies, that complaints against advocates should be taken before the proper disciplinary bodies, and that there is already a related pending matter before the ELC, making the petition potentially sub judice .
3. The petitioner opposes the preliminary objections, arguing that the matter is not merely a land dispute but raises serious constitutional issues involving abuse of public power, leadership and integrity, fair administrative action, national values, corruption, and violation of property rights. The petitioner maintains that the objections are not pure points of law because they require factual inquiry, and that alternative remedies such as the EACC or Advocates Disciplinary Tribunal are inadequate to address the full constitutional relief sought.
4. The Preliminary Objection was canvassed via written submissions
SUMMARY OF THE 1ST RESPONDENT’S SUBMISSIONS
5. It is submitted that the Court is absent jurisdiction, the Court ought to down its tools and reference made to the decisions in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 others [2012] eKLR.
6. The 1 st Respondent asserts that the ELC is the competent forum to determine the matter and makes reference to the decision in Republic v Karisa Chengo & 2 others [2017] eKLR and Lydia Nyambura Mbugua v Diamond Trust Bank Kenya Limited & Another as cited in Dominic & 3 others v County Government of Narok & another [2023] KEHC 17908 (KLR) .
SUMMARY OF 2ND RESPONDENTS SUBMISSIONS
7. It is submitted that considering Milimani ELC Case No. E178 Of 2025. Korinke Ole Gisa & 183 Others -Vs-Duputo/Dafur Settlement Welfare Scheme & Others, that is pending before Court the Petition is sub judice .
8. The 2 nd respondent reiterates that the Court lacks jurisdiction and equally refers to Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 others (supra) and Republic v Karisa Chengo(supra) emphasizing that that jurisdiction is strictly determined by law.
SUMMARY OF THE PETITIONER’S SUBMISSIONS
9. The Petitioner submits that the Preliminary Objections do not meet the legal threshold as established in the decisions in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors ltd [1969] EA 696 and Oraro v Mbaja [2005] I KLR 141
10. On jurisdiction, the petitioner argues that the issues raised in the petition are not limited to, nor primarily concerned with, ownership, title, or occupation of land. Rather, it challenges the way public power has been exercised in relation to the subject matter. Particularly, the petition alleges that the respondents who are public officers and state agencies, have acted in a manner that, violates constitutional principles of leadership and integrity under article 73; offends the national values and principles of governance under article 10 and breaches the right to fair administrative action under article 47. It is argued that all these are a preserve for this court by dint of article 165(3)(b) and (d) of the Constitution.
11. The petitioner relies on the decision in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR , where the Court of Appeal affirmed that the High Court retains jurisdiction where a matter raises substantial constitutional questions, even where the subject matter overlaps with other specialized areas. He further relies on Suzanne Butler & 4 Others v Redhill Heights Investments Ltd & Another [2016] eKLR.
12. On justiciable constitutional issues, the petitioner asserts that his petition complies with the constitutional threshold in Anarita Karimi Njeru v Republic [1979] eKLR. It has expressly invoked and pleaded violations of specific constitutional provisions, particularized the manner of infringement of the cited provisions and linked the impugned conduct to specific public actors.
13. The petitioner further cites the decision in Court in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR which clarified that the requirement of precision is not meant to impose a rigid or technical standard that impedes access to justice, emphasizing on a purposive approach that balances clarity with the need to allow litigants to ventilate constitutional grievances. Similar reliance is placed on Trusted Society of Human Rights Alliance v Attorney General & 2 Others [2012] eKLR.
14. The petitioner is of the view that the petition raises questions of public importance, particularly in relation to the conduct of state agencies and the enforcement of constitutional standards in governance which cannot be relegated to ordinary civil litigation.
15. Regarding exhaustion, the petitioner submits that the doctrine is not absolute and cannot be applied mechanistically or in a manner that defeats the ends of justice. He relies on the case of Geoffrey Muthinja & 2 others v Samuel Munga Henry & 1756 Others [2015] eKLR for the proposition that the alternative remedy must be available, adequate and effective, which is not the case herein.
16. According to the petitioner, EACC is primarily investigative and advisory in nature and does not possess jurisdiction to grant constitutional remedies such as declaration of rights violations or orders enforcing constitutional compliance. The Advocates Disciplinary Tribunal is also limited to matters of professional misconduct. He further relies on the decision in Republic v Independent Electoral and Boundaries Commission (IEBC) ex parte National Super Alliance (NASA) Kenya [2017] eKLR for the exceptions of the doctrine and submits that there is no alternative forum capable of addressing the issues raised and the relief sought in the petition.
17. Regarding violation of articles 157(10) and 245 (4) of the Constitution, the petitioner argues that the independence of the DPP and Inspector General must be exercised within the confines of the Constitution and the law. To that extent he is challenging the legality, constitutionality and propriety of the actions and omissions of exercise of their mandates. He relies on the cases of Director of Public Prosecutions v Martin Maina & 4 others [2017] eKLR and Republic v Commissioner of police& another Exparte Michael Monari [2012] eKLR.
18. On abuse of the court process, it is the petitioner’s position that the same is unsubstantiated. He relies on Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR where the Court held that abuse of process involves situations such as; instituting multiple suits over the same subject matter, engaging in forum shopping and acting in bad faith. None of these elements have been demonstrated in the present case. It is urged that the objections raised be dismissed.
ANALYSIS AND DETERMINATION
19. Arising from the foregoing, I frame the following as the issues for determination?
a. Whether the petition is sub judice
b. Whether the preliminary objections have merit?
c. Is this Court’s Jurisdiction ousted by law?
d. Whether the petition offends the doctrines of constitutional avoidance and exhaustion?
Whether the petition is sub judice?
20. The 2 nd respondent submits that the Petition is sub judice in light of Milimani ELC Case No. E178 of 2025. Korinke Ole Gisa & 183 Others -Vs-Duputo/Dafur Settlement Welfare Scheme & Others which is pending before Court. This issue is raised in the Submissions and not in the Preliminary Objection. The pleadings in Milimani ELC Case No. E178 of 2025. Korinke Ole Gisa & 183 Others -Vs-Duputo/Dafur Settlement Welfare Scheme & Others have not been availed, to enable this Court to make the necessary inquiry under Section 6 of the Civil Procedure Act
21. In Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR the Court of Appeal succinctly clarified that Submissions cannot take the place of evidence stating:
Submissions cannot take the place of evidence. The 1 st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.
22. Consequently, I find that the 2 nd respondent has failed to establish that the Petition is sub judice.
Whether the preliminary objections has merit?
23. The Supreme Court in the decision in Joho & another v Shahbal & 2 others [2014] KESC 34 (KLR) set out the legal threshold for a preliminary objection. It stated;
[31].To restate the relevant principle from the precedent-setting case, Mukisa Biscuit Manufacturing Co Ltd v West End Distributors (1969) EA 696:
a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.. ..a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
24. Further, In Oraro v Mbaja [2005] KEHC 3182(KLR) the court held;
I think the principle is abundantly clear. A “preliminary objection”, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed...
25. The respondents herein challenge the jurisdiction of this Court to adjudicate over the Petition. The Supreme Court in Munene v Kingara and 2 others [2014] eKLR, stated that ‘jurisdiction is a pure question of law’ and should be resolved on priority basis. I find therefore that the Preliminary Objection challenging the jurisdiction of the Court meets the Mukisa test and can therefore proceed to be heard on its merit.
Whether the Jurisdiction of the Court is ousted by law
26. The Respondents and Interested Party seek to oust the jurisdiction on two fronts, first that the matter falls within the exclusive mandate of the Environment and Land Court and Second, that the Petition offends the doctrines of constitutional avoidance and exhaustion of remedies as the Petitioner has not demonstrated that he has exhausted the administrative avenues available to address his grievance. On account of the latter, it is submitted that the Petition is not justiciable.
27. The Supreme Court in Law Society of Kenya v Attorney General & 4 others [2023] KESC 19 (KLR) the Court stated as follows;
[41].This court’s jurisdiction flows from the Constitution and the applicable statutes. See Samuel Kamau Macharia & another v Kenya commercial Bank & 2 others, SC Application No 2 of 2011; [2012] eKLR. Therefore, even if the question of jurisdiction is not brought up by the parties, it is our duty, as a matter of practice to independently satisfy ourselves that we are legitimately seized of each matter before us.
28. Similarly, the Court of Appeal in Public Service Commission & 4 others v Cheruiyot & 20 others [2022] KECA 15 (KLR) pronounced itself thus:
Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. John Beecroft Saunders in “Words and Phrases Legally Defined”, Volume 3 at Page 113 defines court jurisdiction as follows:
By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.
29. The locus classicus on jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S’ v. Caltex Oil (Kenya) Ltd [1989] KLR 1. Nyarangi, JA. relying, inter alia, on the above cited treatise by John Beecroft Saunders held as follows:
…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 tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.
A decision made by a court of law without proper jurisdiction amounts to a nullity ab initio, and such a decision is amenable to setting aside ex debito justitiae.
30. The Supreme Court in In the Matter of Interim Independent Electoral Commission [2011] eKLR, Constitutional Application No. 2 of 2011 decisively held that jurisdiction of courts in Kenya is regulated by the Constitution, statute, and principles laid out in judicial precedent stating
[30]. Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of Legislation is clear and there is no ambiguity.
31. The Preliminary Objection state that the Court with the mandate to handle the matter is the Environment and Land Court. The Court in Ng’ang’a & 11 others v Cabinet Secretary Ministry of Land & Public Works, Housing and Urban Development & another [2025] KEHC 13143 (KLR) , examined a similar question. In that case in determining what the predominant issue was the Court made reference to the prayers that the petitioner sought. Adopting a similar approach, I observe that in the STATEMENT OF FACTS at paragraph 16 of the Petition, the Petitioner states
The facts giving rise to this Petition concern the illegal, fraudulent, clandestine, and unconstitutional acquisition, misappropriation, and embezzlement of public land and public funds arising from the compulsory acquisition of part of Land Reference Number 2935, Embakasi, Nairobi County (hereinafter "the Suit Property"), which was lawfully occupied by members of the Dupoto/Dafur Settlement Welfare Scheme, a duly registered Community-Based Organization .
32. Further, the Petitioner seeks the following specific orders inter alia;
a. A declaration that the actions and omissions of the 1 st respondent in orchestrating the illegal surrender, alienation, and disposal of 38 acres of community land without compensation, and in facilitating the fraudulent diversion of Kshs. 2.75 billion in public compensation funds, violated articles 10, 27, 40, 43, 47, 60, 73, 75, and 232 of the Constitution of Kenya, 2010.
b. A declaration that the members of the Dupoto/Dafur Settlement Welfare Scheme are the legitimate and rightful beneficiaries of the Suit Property and the public compensation funds paid by Ministry
c. An order directing a full forensic audit and accounting of the entire compensation process relating to the 93 acres of Land Reference No. 2935, Embakasi, Nairobi, including but not limited to all sums paid, received, disbursed, and beneficiaries thereof.
d. An order compelling the Ministry of Lands, and all relevant Government agencies to produce to this Honourable Court and to the petitioner all documents relating to: The acquisition of the Suit Property, Payments made for the acquisition, Beneficiaries of such payments, Sale Agreements, Transfers, and associated land records.
e. An order of restitution directing that any and all sums unlawfully received by the respondents and their associates from the compensation monies be refunded to the bona fide members of the Dupoto/Dafur Settlement Welfare Scheme through a transparent, court-supervised process.
f. An order of injunction restraining any further dealings, alienation, transfer, or occupation of the Suit Property (including the 38 acres excised) pending the final determination of this petition and/or criminal proceedings arising therefrom.
g. An order compelling the Cabinet Secretary for Lands and the Chief Land Registrar to forthwith cancel any titles, leases, or allotments illegally procured in relation to the 38 acres excised from the Suit Property and to revert the same to the original intended beneficiaries — the members of Dupoto/Dafur Settlement Welfare Scheme
h. An award of general damages, to be assessed by the Honourable Court, for the violation of the constitutional rights of the members of the Settlement Scheme, including their right to property, fair administrative action, dignity, and socio- economic welfare.
i. An award of exemplary and punitive damages against the respondents jointly and severally for their malicious, reckless, and oppressive actions.
j. An award of costs of this petition to the petitioner, to be borne jointly and severally by the respondents.
33. The Petition seeks to impugn both the process by which the subject parcel was compulsorily acquired and the manner in which the resultant compensation was allocated. These questions are neither novel nor unsettled. Courts have, in multiple decisions, confronted materially identical circumstances and have pronounced with finality the proper legal course to be taken.
34. In Mohammed Said v County Council of Nandi [2013] KEELC 139 (KLR) the Court clarified;
The general jurisdiction is set out in Section 13 (1) which emphasizes that the E&LC has both 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 Environment & Land Court Act, or any other law applicable in Kenya relating to environment and land…. A plain reading of Section 13 (3) will demonstrate that the jurisdiction of the court is not limited only to hearing matters touching on violations of Articles 42, 69, and 70 of the Constitution. That section does not state that the E&LC is only to hear the matters set out in Articles 42, 69 and 70 of the Constitution. The section for whatever reason, is emphasizes the jurisdiction of the court to hear petitions touching on the environment. There is no preclusion to hear any other petition, grounded on any other Article of the Constitution, so long as it falls within the purview of land and environment.18.Indeed, the High Court has no jurisdiction in respect of matters that fall within the jurisdiction of the Environment and Land Court or that falling within the jurisdiction and the Industrial Court. This is set out in Article 165 (5) of the Constitution.
35. Further 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) the Court held that:
[134].My interpretation of the preceding Section is that the jurisdiction of the Environment and Land Court is founded on the existence of any dispute with relation to land or environment. In essence therefore where the substratum of a dispute is founded on such, the matter should be exclusively dealt with in the Environment and Land Court…I am guided by the Court of Appeal who speaking to this matter in the case of Chimweli Jangaa Mangale & 3 others v Hamisi Mohamed Mwawasaa & 15 others [2016] eKLR opined as follows:“This Court considered the issue in Prof. Daniel N. Mugendi v. Kenyatta University & Others, CA No 6 of 2012 and in Judicial Service Commission v. Gladys Boss Shollei & Another, CA No 50 of 2014, involving the Labour and Employment Court, which, like the ELC, is a court of equal status as the High Court under Article 162(2) of the Constitution. The Court concluded that the High Court did not have exclusive jurisdiction to enforce the Bill of Rights and that the Constitution contemplates enforcement and protection of fundamental rights and freedoms by other courts, other than the High Court. Accordingly, where issues involving the environment or land raise constitutional issues or issues of protection and enforcement of the right to land as property, the ELC will have jurisdiction to hear and determine the dispute. We are satisfied that the appellant’s claim that the ELC lacks jurisdiction to enforce constitutional rights is totally bereft of merit.
36. In Linus Kamunyo Muchina v Speaker Embu County Assembly Majority Leader-Embu County Assembly [2016] KEHC 354 (KLR) the court addressed the jurisdiction of the High Court. It stated: -
[10]. Under Article 23 (1) of the 2010 Constitution of Kenya, the High Court is vested with jurisdiction to enforce the Bill of Rights. It is authorized “to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights”. In exercise of its powers, the court is required to act in accordance with Article 165 (3) of the 2010 Constitution of Kenya. The jurisdiction under Article 165 (3) (b) is “to determine the question whether the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened”. It is clear that this provision gives the High Court original jurisdiction in those matters that are set out in that article. In exercise of its powers under Article 165 (3) the High Court acts as a court of first instance. Furthermore, under Article 165 (6), the High Court “has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court”. It is also clear that Article 165 (6) of the Constitution gives to the High Court supervisory jurisdiction to review decisions of the subordinate tribunals.
37. Finally, in the case of Joyce Mutindi Muthama & another v Josephat Kyololo Wambua & 2 others [2019] eKLR the Court held that:
[16.]It is true, as submitted by the Respondents’ counsel, that under Section 13(3) of the Environment and Land Court Act, the court has the mandate to hear and determine applications for redress of a denial, violation or infringement of, or threat to rights or fundamental freedoms relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution. However, the Act does not limit or preclude the court from hearing applications for redress of a denial or violation of any other right, if that right is in furtherance of a dispute relating to land and the environment.
[17].It is trite that the right to own land and the right to a clean and healthy environment cannot be dealt with in isolation from other rights like the right to a fair hearing, the right not to be discriminated against, the right to a fair administrative action, the right to equal protection and equal benefit of the law, the right to adequate housing, amongst other rights.
[18].All these rights have to be interpreted in the context of the Petitioners’ right to own land and the right to a clean and healthy environment, and not in isolation as argued by the Respondents.
38. The issue then is settled by the Constitution, statute, and judicial precedent. While the Constitution vests jurisdiction in the High Court under Article 165, that jurisdiction is expressly limited by Article 162(2), which delineates the mandate of courts of equal status and assigns to the Environment and Land Court the exclusive original jurisdiction over disputes relating to land, including questions arising from compulsory acquisition, valuation, compensation, and distribution of proceeds. Having found that the proper forum for the determination of this dispute is the Environment and Land Court. The Court cannot arrogate to itself a jurisdiction that the Constitution has withheld, nor can it reopen matters that statute and precedent have already placed within the exclusive remit of the specialised court
The second jurisdictional issue for determination is whether the petition offends the doctrines of constitutional avoidance and exhaustion?
39. In Lugo v Director of Public Prosecutions [2022] KEHC 10574 (KLR) the Court observed as follows:
Courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a court will usually decline to determine whether there has been, in addition, a breach of the Declaration of rights.
Currie and de Waal opine that the principle of constitutional avoidance is of crucial importance in the application of the Bill of Rights. The author states: -
When applying the Bill of Rights in a legal dispute, the principle of avoidance is of crucial importance. As we have seen, the Bill of Rights always applies in a legal dispute. It is usually capable of direct or indirect application and, in a limited number of cases, of indirect application only. The availability of direct application is qualified by the principle that the Bill of Rights should not be applied directly in a legal dispute unless it is necessary to do so.
An important and critical issue arises from the above statements by Currie and de Waal. It is a fact that every legal dispute is capable of either direct or indirect application of the Bill of Rights. Every dispute is essentially a constitutional issue when one looks at it. This arises necessarily because of the principle of constitutional supremacy. One needs to be aware, however, of the singleness of the legal system. This is embodied in the fact that the supremacy of the Constitution does not detract from the usefulness of the rest of the body of law. In essence, all other laws give full expression to the ideals of the Constitution until found to be inconsistent with it.
40. Similarly, in Papinder Kaur Atwal -vs- Manjit Singh Amrit Nairobi Petition No. 236 of 2011 (unreported) after considering several authorities on the issue, Justice Lenaola remarked as follows:
All the authorities above would point to the fact that the constitution is a solemn document, and should not be a substitute for remedying emotional personal questions or mere control of excesses within administrative processes….. I must add the following; Our Bill of Rights is robust. It has been hailed as one of the best in any Constitution in the World. Our Courts must interpret it [with] all the liberalism they can marshall. However, not every pain can be addressed through the Bill of Rights and alleged violation thereof.
41. The Constitution cannot be used as a general substitute for the normal procedures. The mere allegation that a human right has been contravened is not itself sufficient to entitle the applicant to invoke the jurisdiction of the High Court under Article 165 of the Constitution. The Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR stated with finality: -
[256] The appellants in this case are seeking to invoke the “principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In Sou
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1. The petition concerns Land Reference No. 2935 in Embakasi, Nairobi, originally allocated to the Nairobi City Council and later to the Dupoto/Dafur Settlement Welfare Scheme. The petitioner alleges that after Kenya Railways Corporation compulsorily acquired part of the land for the Standard Gauge Railway project, the remaining land and compensation funds were irregularly handled. Specifically, the petitioner claims that 38 acres were surrendered without compensation; 55 acres were sold without members’ authority, and Kshs. 2.75 billion in compensation was diverted to law firms and individuals while genuine scheme members received nominal payments.
2. The respondents and the 3rd interested party raised preliminary objections, mainly arguing that the High Court lacks jurisdiction because the dispute is fundamentally about land ownership, title, compulsory acquisition, compensation, alienation, and transfer, matters falling within the exclusive jurisdiction of the Environment and Land Court. They also argue that some prayers interfere with the constitutional independence of investigative and prosecutorial agencies, that complaints against advocates should be taken before the proper disciplinary bodies, and that there is already a related pending matter before the ELC, making the petition potentially sub judice .
3. The petitioner opposes the preliminary objections, arguing that the matter is not merely a land dispute but raises serious constitutional issues involving abuse of public power, leadership and integrity, fair administrative action, national values, corruption, and violation of property rights. The petitioner maintains that the objections are not pure points of law because they require factual inquiry, and that alternative remedies such as the EACC or Advocates Disciplinary Tribunal are inadequate to address the full constitutional relief sought.
4. The Preliminary Objection was canvassed via written submissions
SUMMARY OF THE 1ST RESPONDENT’S SUBMISSIONS
5. It is submitted that the Court is absent jurisdiction, the Court ought to down its tools and reference made to the decisions in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 others [2012] eKLR.
6. The 1 st Respondent asserts that the ELC is the competent forum to determine the matter and makes reference to the decision in Republic v Karisa Chengo & 2 others [2017] eKLR and Lydia Nyambura Mbugua v Diamond Trust Bank Kenya Limited & Another as cited in Dominic & 3 others v County Government of Narok & another [2023] KEHC 17908 (KLR) .
SUMMARY OF 2ND RESPONDENTS SUBMISSIONS
7. It is submitted that considering Milimani ELC Case No. E178 Of 2025. Korinke Ole Gisa & 183 Others -Vs-Duputo/Dafur Settlement Welfare Scheme & Others, that is pending before Court the Petition is sub judice .
8. The 2 nd respondent reiterates that the Court lacks jurisdiction and equally refers to Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 others (supra) and Republic v Karisa Chengo(supra) emphasizing that that jurisdiction is strictly determined by law.
SUMMARY OF THE PETITIONER’S SUBMISSIONS
9. The Petitioner submits that the Preliminary Objections do not meet the legal threshold as established in the decisions in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors ltd [1969] EA 696 and Oraro v Mbaja [2005] I KLR 141
10. On jurisdiction, the petitioner argues that the issues raised in the petition are not limited to, nor primarily concerned with, ownership, title, or occupation of land. Rather, it challenges the way public power has been exercised in relation to the subject matter. Particularly, the petition alleges that the respondents who are public officers and state agencies, have acted in a manner that, violates constitutional principles of leadership and integrity under article 73; offends the national values and principles of governance under article 10 and breaches the right to fair administrative action under article 47. It is argued that all these are a preserve for this court by dint of article 165(3)(b) and (d) of the Constitution.
11. The petitioner relies on the decision in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR , where the Court of Appeal affirmed that the High Court retains jurisdiction where a matter raises substantial constitutional questions, even where the subject matter overlaps with other specialized areas. He further relies on Suzanne Butler & 4 Others v Redhill Heights Investments Ltd & Another [2016] eKLR.
12. On justiciable constitutional issues, the petitioner asserts that his petition complies with the constitutional threshold in Anarita Karimi Njeru v Republic [1979] eKLR. It has expressly invoked and pleaded violations of specific constitutional provisions, particularized the manner of infringement of the cited provisions and linked the impugned conduct to specific public actors.
13. The petitioner further cites the decision in Court in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR which clarified that the requirement of precision is not meant to impose a rigid or technical standard that impedes access to justice, emphasizing on a purposive approach that balances clarity with the need to allow litigants to ventilate constitutional grievances. Similar reliance is placed on Trusted Society of Human Rights Alliance v Attorney General & 2 Others [2012] eKLR.
14. The petitioner is of the view that the petition raises questions of public importance, particularly in relation to the conduct of state agencies and the enforcement of constitutional standards in governance which cannot be relegated to ordinary civil litigation.
15. Regarding exhaustion, the petitioner submits that the doctrine is not absolute and cannot be applied mechanistically or in a manner that defeats the ends of justice. He relies on the case of Geoffrey Muthinja & 2 others v Samuel Munga Henry & 1756 Others [2015] eKLR for the proposition that the alternative remedy must be available, adequate and effective, which is not the case herein.
16. According to the petitioner, EACC is primarily investigative and advisory in nature and does not possess jurisdiction to grant constitutional remedies such as declaration of rights violations or orders enforcing constitutional compliance. The Advocates Disciplinary Tribunal is also limited to matters of professional misconduct. He further relies on the decision in Republic v Independent Electoral and Boundaries Commission (IEBC) ex parte National Super Alliance (NASA) Kenya [2017] eKLR for the exceptions of the doctrine and submits that there is no alternative forum capable of addressing the issues raised and the relief sought in the petition.
17. Regarding violation of articles 157(10) and 245 (4) of the Constitution, the petitioner argues that the independence of the DPP and Inspector General must be exercised within the confines of the Constitution and the law. To that extent he is challenging the legality, constitutionality and propriety of the actions and omissions of exercise of their mandates. He relies on the cases of Director of Public Prosecutions v Martin Maina & 4 others [2017] eKLR and Republic v Commissioner of police& another Exparte Michael Monari [2012] eKLR.
18. On abuse of the court process, it is the petitioner’s position that the same is unsubstantiated. He relies on Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR where the Court held that abuse of process involves situations such as; instituting multiple suits over the same subject matter, engaging in forum shopping and acting in bad faith. None of these elements have been demonstrated in the present case. It is urged that the objections raised be dismissed.
ANALYSIS AND DETERMINATION
19. Arising from the foregoing, I frame the following as the issues for determination?
a. Whether the petition is sub judice
b. Whether the preliminary objections have merit?
c. Is this Court’s Jurisdiction ousted by law?
d. Whether the petition offends the doctrines of constitutional avoidance and exhaustion?
Whether the petition is sub judice?
20. The 2 nd respondent submits that the Petition is sub judice in light of Milimani ELC Case No. E178 of 2025. Korinke Ole Gisa & 183 Others -Vs-Duputo/Dafur Settlement Welfare Scheme & Others which is pending before Court. This issue is raised in the Submissions and not in the Preliminary Objection. The pleadings in Milimani ELC Case No. E178 of 2025. Korinke Ole Gisa & 183 Others -Vs-Duputo/Dafur Settlement Welfare Scheme & Others have not been availed, to enable this Court to make the necessary inquiry under Section 6 of the Civil Procedure Act
21. In Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR the Court of Appeal succinctly clarified that Submissions cannot take the place of evidence stating:
Submissions cannot take the place of evidence. The 1 st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.
22. Consequently, I find that the 2 nd respondent has failed to establish that the Petition is sub judice.
Whether the preliminary objections has merit?
23. The Supreme Court in the decision in Joho & another v Shahbal & 2 others [2014] KESC 34 (KLR) set out the legal threshold for a preliminary objection. It stated;
[31].To restate the relevant principle from the precedent-setting case, Mukisa Biscuit Manufacturing Co Ltd v West End Distributors (1969) EA 696:
a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.. ..a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
24. Further, In Oraro v Mbaja [2005] KEHC 3182(KLR) the court held;
I think the principle is abundantly clear. A “preliminary objection”, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed...
25. The respondents herein challenge the jurisdiction of this Court to adjudicate over the Petition. The Supreme Court in Munene v Kingara and 2 others [2014] eKLR, stated that ‘jurisdiction is a pure question of law’ and should be resolved on priority basis. I find therefore that the Preliminary Objection challenging the jurisdiction of the Court meets the Mukisa test and can therefore proceed to be heard on its merit.
Whether the Jurisdiction of the Court is ousted by law
26. The Respondents and Interested Party seek to oust the jurisdiction on two fronts, first that the matter falls within the exclusive mandate of the Environment and Land Court and Second, that the Petition offends the doctrines of constitutional avoidance and exhaustion of remedies as the Petitioner has not demonstrated that he has exhausted the administrative avenues available to address his grievance. On account of the latter, it is submitted that the Petition is not justiciable.
27. The Supreme Court in Law Society of Kenya v Attorney General & 4 others [2023] KESC 19 (KLR) the Court stated as follows;
[41].This court’s jurisdiction flows from the Constitution and the applicable statutes. See Samuel Kamau Macharia & another v Kenya commercial Bank & 2 others, SC Application No 2 of 2011; [2012] eKLR. Therefore, even if the question of jurisdiction is not brought up by the parties, it is our duty, as a matter of practice to independently satisfy ourselves that we are legitimately seized of each matter before us.
28. Similarly, the Court of Appeal in Public Service Commission & 4 others v Cheruiyot & 20 others [2022] KECA 15 (KLR) pronounced itself thus:
Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. John Beecroft Saunders in “Words and Phrases Legally Defined”, Volume 3 at Page 113 defines court jurisdiction as follows:
By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.
29. The locus classicus on jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S’ v. Caltex Oil (Kenya) Ltd [1989] KLR 1. Nyarangi, JA. relying, inter alia, on the above cited treatise by John Beecroft Saunders held as follows:
…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 tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.
A decision made by a court of law without proper jurisdiction amounts to a nullity ab initio, and such a decision is amenable to setting aside ex debito justitiae.
30. The Supreme Court in In the Matter of Interim Independent Electoral Commission [2011] eKLR, Constitutional Application No. 2 of 2011 decisively held that jurisdiction of courts in Kenya is regulated by the Constitution, statute, and principles laid out in judicial precedent stating
[30]. Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of Legislation is clear and there is no ambiguity.
31. The Preliminary Objection state that the Court with the mandate to handle the matter is the Environment and Land Court. The Court in Ng’ang’a & 11 others v Cabinet Secretary Ministry of Land & Public Works, Housing and Urban Development & another [2025] KEHC 13143 (KLR) , examined a similar question. In that case in determining what the predominant issue was the Court made reference to the prayers that the petitioner sought. Adopting a similar approach, I observe that in the STATEMENT OF FACTS at paragraph 16 of the Petition, the Petitioner states
The facts giving rise to this Petition concern the illegal, fraudulent, clandestine, and unconstitutional acquisition, misappropriation, and embezzlement of public land and public funds arising from the compulsory acquisition of part of Land Reference Number 2935, Embakasi, Nairobi County (hereinafter "the Suit Property"), which was lawfully occupied by members of the Dupoto/Dafur Settlement Welfare Scheme, a duly registered Community-Based Organization .
32. Further, the Petitioner seeks the following specific orders inter alia;
a. A declaration that the actions and omissions of the 1 st respondent in orchestrating the illegal surrender, alienation, and disposal of 38 acres of community land without compensation, and in facilitating the fraudulent diversion of Kshs. 2.75 billion in public compensation funds, violated articles 10, 27, 40, 43, 47, 60, 73, 75, and 232 of the Constitution of Kenya, 2010.
b. A declaration that the members of the Dupoto/Dafur Settlement Welfare Scheme are the legitimate and rightful beneficiaries of the Suit Property and the public compensation funds paid by Ministry
c. An order directing a full forensic audit and accounting of the entire compensation process relating to the 93 acres of Land Reference No. 2935, Embakasi, Nairobi, including but not limited to all sums paid, received, disbursed, and beneficiaries thereof.
d. An order compelling the Ministry of Lands, and all relevant Government agencies to produce to this Honourable Court and to the petitioner all documents relating to: The acquisition of the Suit Property, Payments made for the acquisition, Beneficiaries of such payments, Sale Agreements, Transfers, and associated land records.
e. An order of restitution directing that any and all sums unlawfully received by the respondents and their associates from the compensation monies be refunded to the bona fide members of the Dupoto/Dafur Settlement Welfare Scheme through a transparent, court-supervised process.
f. An order of injunction restraining any further dealings, alienation, transfer, or occupation of the Suit Property (including the 38 acres excised) pending the final determination of this petition and/or criminal proceedings arising therefrom.
g. An order compelling the Cabinet Secretary for Lands and the Chief Land Registrar to forthwith cancel any titles, leases, or allotments illegally procured in relation to the 38 acres excised from the Suit Property and to revert the same to the original intended beneficiaries — the members of Dupoto/Dafur Settlement Welfare Scheme
h. An award of general damages, to be assessed by the Honourable Court, for the violation of the constitutional rights of the members of the Settlement Scheme, including their right to property, fair administrative action, dignity, and socio- economic welfare.
i. An award of exemplary and punitive damages against the respondents jointly and severally for their malicious, reckless, and oppressive actions.
j. An award of costs of this petition to the petitioner, to be borne jointly and severally by the respondents.
33. The Petition seeks to impugn both the process by which the subject parcel was compulsorily acquired and the manner in which the resultant compensation was allocated. These questions are neither novel nor unsettled. Courts have, in multiple decisions, confronted materially identical circumstances and have pronounced with finality the proper legal course to be taken.
34. In Mohammed Said v County Council of Nandi [2013] KEELC 139 (KLR) the Court clarified;
The general jurisdiction is set out in Section 13 (1) which emphasizes that the E&LC has both 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 Environment & Land Court Act, or any other law applicable in Kenya relating to environment and land…. A plain reading of Section 13 (3) will demonstrate that the jurisdiction of the court is not limited only to hearing matters touching on violations of Articles 42, 69, and 70 of the Constitution. That section does not state that the E&LC is only to hear the matters set out in Articles 42, 69 and 70 of the Constitution. The section for whatever reason, is emphasizes the jurisdiction of the court to hear petitions touching on the environment. There is no preclusion to hear any other petition, grounded on any other Article of the Constitution, so long as it falls within the purview of land and environment.18.Indeed, the High Court has no jurisdiction in respect of matters that fall within the jurisdiction of the Environment and Land Court or that falling within the jurisdiction and the Industrial Court. This is set out in Article 165 (5) of the Constitution.
35. Further 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) the Court held that:
[134].My interpretation of the preceding Section is that the jurisdiction of the Environment and Land Court is founded on the existence of any dispute with relation to land or environment. In essence therefore where the substratum of a dispute is founded on such, the matter should be exclusively dealt with in the Environment and Land Court…I am guided by the Court of Appeal who speaking to this matter in the case of Chimweli Jangaa Mangale & 3 others v Hamisi Mohamed Mwawasaa & 15 others [2016] eKLR opined as follows:“This Court considered the issue in Prof. Daniel N. Mugendi v. Kenyatta University & Others, CA No 6 of 2012 and in Judicial Service Commission v. Gladys Boss Shollei & Another, CA No 50 of 2014, involving the Labour and Employment Court, which, like the ELC, is a court of equal status as the High Court under Article 162(2) of the Constitution. The Court concluded that the High Court did not have exclusive jurisdiction to enforce the Bill of Rights and that the Constitution contemplates enforcement and protection of fundamental rights and freedoms by other courts, other than the High Court. Accordingly, where issues involving the environment or land raise constitutional issues or issues of protection and enforcement of the right to land as property, the ELC will have jurisdiction to hear and determine the dispute. We are satisfied that the appellant’s claim that the ELC lacks jurisdiction to enforce constitutional rights is totally bereft of merit.
36. In Linus Kamunyo Muchina v Speaker Embu County Assembly Majority Leader-Embu County Assembly [2016] KEHC 354 (KLR) the court addressed the jurisdiction of the High Court. It stated: -
[10]. Under Article 23 (1) of the 2010 Constitution of Kenya, the High Court is vested with jurisdiction to enforce the Bill of Rights. It is authorized “to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights”. In exercise of its powers, the court is required to act in accordance with Article 165 (3) of the 2010 Constitution of Kenya. The jurisdiction under Article 165 (3) (b) is “to determine the question whether the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened”. It is clear that this provision gives the High Court original jurisdiction in those matters that are set out in that article. In exercise of its powers under Article 165 (3) the High Court acts as a court of first instance. Furthermore, under Article 165 (6), the High Court “has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court”. It is also clear that Article 165 (6) of the Constitution gives to the High Court supervisory jurisdiction to review decisions of the subordinate tribunals.
37. Finally, in the case of Joyce Mutindi Muthama & another v Josephat Kyololo Wambua & 2 others [2019] eKLR the Court held that:
[16.]It is true, as submitted by the Respondents’ counsel, that under Section 13(3) of the Environment and Land Court Act, the court has the mandate to hear and determine applications for redress of a denial, violation or infringement of, or threat to rights or fundamental freedoms relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution. However, the Act does not limit or preclude the court from hearing applications for redress of a denial or violation of any other right, if that right is in furtherance of a dispute relating to land and the environment.
[17].It is trite that the right to own land and the right to a clean and healthy environment cannot be dealt with in isolation from other rights like the right to a fair hearing, the right not to be discriminated against, the right to a fair administrative action, the right to equal protection and equal benefit of the law, the right to adequate housing, amongst other rights.
[18].All these rights have to be interpreted in the context of the Petitioners’ right to own land and the right to a clean and healthy environment, and not in isolation as argued by the Respondents.
38. The issue then is settled by the Constitution, statute, and judicial precedent. While the Constitution vests jurisdiction in the High Court under Article 165, that jurisdiction is expressly limited by Article 162(2), which delineates the mandate of courts of equal status and assigns to the Environment and Land Court the exclusive original jurisdiction over disputes relating to land, including questions arising from compulsory acquisition, valuation, compensation, and distribution of proceeds. Having found that the proper forum for the determination of this dispute is the Environment and Land Court. The Court cannot arrogate to itself a jurisdiction that the Constitution has withheld, nor can it reopen matters that statute and precedent have already placed within the exclusive remit of the specialised court
The second jurisdictional issue for determination is whether the petition offends the doctrines of constitutional avoidance and exhaustion?
39. In Lugo v Director of Public Prosecutions [2022] KEHC 10574 (KLR) the Court observed as follows:
Courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a court will usually decline to determine whether there has been, in addition, a breach of the Declaration of rights.
Currie and de Waal opine that the principle of constitutional avoidance is of crucial importance in the application of the Bill of Rights. The author states: -
When applying the Bill of Rights in a legal dispute, the principle of avoidance is of crucial importance. As we have seen, the Bill of Rights always applies in a legal dispute. It is usually capable of direct or indirect application and, in a limited number of cases, of indirect application only. The availability of direct application is qualified by the principle that the Bill of Rights should not be applied directly in a legal dispute unless it is necessary to do so.
An important and critical issue arises from the above statements by Currie and de Waal. It is a fact that every legal dispute is capable of either direct or indirect application of the Bill of Rights. Every dispute is essentially a constitutional issue when one looks at it. This arises necessarily because of the principle of constitutional supremacy. One needs to be aware, however, of the singleness of the legal system. This is embodied in the fact that the supremacy of the Constitution does not detract from the usefulness of the rest of the body of law. In essence, all other laws give full expression to the ideals of the Constitution until found to be inconsistent with it.
40. Similarly, in Papinder Kaur Atwal -vs- Manjit Singh Amrit Nairobi Petition No. 236 of 2011 (unreported) after considering several authorities on the issue, Justice Lenaola remarked as follows:
All the authorities above would point to the fact that the constitution is a solemn document, and should not be a substitute for remedying emotional personal questions or mere control of excesses within administrative processes….. I must add the following; Our Bill of Rights is robust. It has been hailed as one of the best in any Constitution in the World. Our Courts must interpret it [with] all the liberalism they can marshall. However, not every pain can be addressed through the Bill of Rights and alleged violation thereof.
41. The Constitution cannot be used as a general substitute for the normal procedures. The mere allegation that a human right has been contravened is not itself sufficient to entitle the applicant to invoke the jurisdiction of the High Court under Article 165 of the Constitution. The Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR stated with finality: -
[256] The appellants in this case are seeking to invoke the “principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In Sou
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