[1] Upon being granted leave on the 25th April 2025, the ex parte applicants (hereinafter, the applicants) filed the Notice of Motion dated 28th April 2025 under Article 47 of the Constitution of Kenya, Sections 8, 9, 10 and 11 of the Fair Administrative Action Act, Section IA. 1B and 3A of the Civil Procedure Act, Cap 21, Laws of Kenya and other enabling provisions of the law. They prayed for the following orders:
[a] THAT a judicial review order of Certiorari be issued to remove into this court and quash the respondents’ decision of recalling and removing temporary kiosks of the ex parte applicants from Homa Bay Modern Market.
[b] THAT the costs of the application be provided for.
[2] The application was premised on the grounds the applicants were located next to Maranatha S.D.A. Church in Homa Bay Town and along Bank Road from where they were relocated by the County Government of Homa Bay (the 5th respondent) to Homa Bay Modern Market (the Market). They contended that they were all relocated to the Market with their temporary kiosks by the respondents and that since the relocation, they dutifully paid all the taxes demanded by the 5th respondent.
[3] The applicants further contended that sometime in early 2025, the respondents took a decision to have them vacate the Market without offering them any alternative solution. They then engaged the respondents in negotiations that led to rescission of the decision. The applicants were granted permits to operate their businesses for the entire duration of 2025. The applicants were therefore aggrieved that, whereas they were made to believe that the issue of relocation had been resolved, the respondents went ahead and issued verbal notices in April 2025 to vacate the Market; and thereafter served them with the same notice to vacate through WhatsApp Messenger.
[4] The applicants contended that the respondents are out to frustrate them, having caused them to relocate to the Modern Market lawfully. They asserted that the decision by the respondents to have them vacate their current locations without being given alternative business spaces is arbitrary and in breach of their right to fair administrative action. Accordingly, the applicants moved the Court for the order of Certiorari to quash the impugned notice to vacate.
[5] The application was premised on the affidavit of Joan Akinyi Otieno , the 1st applicant herein. She deposed that she had been authorized to make the deposition on behalf of the other applicants and annexed the authority to that effect to her affidavit. The 1st applicant averred that vide a letter dated 22nd April 2024, all the applicants were relocated to the Homa Bay Modern Market by the respondents and permitted to put up temporary kiosks at their new sites. They took issue with the fact that in the early part of 2025, the respondents purported to serve them with notices to vacate the Market without giving them any alternative spaces for their businesses. They annexed to their Supporting Affidavit copies of the initial relocation notices by which they were moved to the Modern Market as well as the authority given by the Manager, Homa Bay Municipality, permitting them to put up temporary kioks at the new location.
[6] In proof of the applicants’ assertion that after the vacation notice was served the parties engaged in negotiations that culminated in the rescission of the decision. The applicants attached copies of their business permits for the year 2025, by which the respondent permitted them to operate their business for the entire year at the Modern Market spaces. The applicants also annexed copies of the screenshots depicting the WhatsApp notices served on them by the respondents in April 2025 after issuing them with business permits for the year 2025. They urged the Court to find that the subsequent decision was arbitrary and therefore ought to be quashed.
[7] The respondents opposed the application vide their Grounds of Opposition dated 7th May 2025 in which they contended that:
[a] The Notice of Motion is incompetent, misconceived, scandalous, vexatious and a total abuse of the court process.
[b] The applicants have not exhausted all the internal appeal mechanisms before moving the Court for judicial review as required by Section 9(2) of the Fair Administrative Action Act.
[c] The applicants’ allegations that they were ordered to move are false and the screenshots produced before the Court do not originate from any of its offices.
[d] In any event, if and when such a decision is made by the respondents, the aggrieved parties have a right of appeal to the Environment and Land Court pursuant to the provisions of Section 13 of the Environment and Land Court Act.
[e] The Notice of Motion dated 28th April 2025 is premature since the jurisdiction of the Court has been challenged.
[8] The application was canvassed by way of written submissions, pursuant to the directions given herein on 10th June 2025. The applicants thereafter filed their written submissions dated 4th July 2025 and proposed one issue for determination, namely, whether an order of Certiorari should issue as prayed by the applicants. In this regard, the applicants relied on Municipal Council of Mombasa v Republic, Umoja Consultants Ltd , Nairobi Civil Appeal No. 185 OF 2007 [2002] eKLR, where the Court of Appeal held that an application for judicial review is only be concerned with the process leading to the making of the decision.
[9] They also relied on the Ugandan case of Pastoli v Kabale District Local Government Canal Others [2008] 2 EA 300 as to the elements that an applicant must prove; as well as the case of Kenya National Examinations Council & others v Republic, Ex Parte Geoffrey Gathenji Njoroge and 9 others, Msagha v Chief Justice 7 Others Nbi HCMA NO. 1062 and Onyango Oloo v Attorney General [1989] EA, on the scope and efficacy of judicial review order of Certiorari.
[10] Although no submissions were filed by the respondents it is noteworthy that they raised a pertinent threshold issue on whether or not this is the proper forum for ventilation of the issue of market space allocation. They also raised the question as to whether or not the applicants had exhausted the alternative dispute resolution mechanisms available to them before approaching the Court for relief.
[11] In the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (1989) I KLR the Court of Appeal pointed out that:
“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.”
[12] In the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] KLR the Supreme Court at para. 68 succinctly stated:
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 upon it 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.
[13] This Court derives its jurisdiction principally form Article 165 of the Constitution. Sub-Article (3) thereof provides as follows:
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 of Kenya is explicit that:
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] It was in the light of the foregoing provisions that the respondents questioned the jurisdiction of this Court in the matter, contending that issues to do with allocation of market stalls or spaces ought to have been presented before the Environment and Land Court. Indeed, Article 162(2) and (3) of the Constitution of Kenya provides that:
(2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to:
(a) employment and labour relations; and
(b) the environment and the use and occupation of, and title to, land.
(3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).
[16] And Section 13 of the Environment and Land Court Act provides for the jurisdiction of the court as follows:
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 interests in land; and
e) any other dispute relating to environment and land.
[17] The Supreme Court in R v Karisa Chengo & 2 Others Petition 5 of 2015 [2017] eKLR held as follows:
[52] In addition to the above, we note that pursuant to Article 162(3) of the Constitution, Parliament enacted the Environment and Land Court Act and the Employment and Labour Relations Act and respectively outlined the separate jurisdictions of the ELC and the ELRC as stated above. From a reading of the Constitution and these Acts of Parliament, it is clear that a special cadre of Courts, with suis generis jurisdiction, is provided for. We therefore entirely concur with the Court of Appeal’s decision that such parity of hierarchical stature does not imply that either ELC or ELRC is the High Court or vice versa. The three are different and autonomous Courts and exercise different and distinct jurisdictions. As Article 165(5) precludes the High Court from entertaining matters reserved to the ELC and ELRC, it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High Court.
[18] The Supreme Court restated the above position in Albert Chaurembo & 7 Others v Maurice Munyao & 148 Other [2019] eKLR as follows:
[130] It is clear to us that Article 165(5) of the Constitution ousts certain questions from the jurisdiction of the High Court on matters of employment and labour relations, and matters of environment, use, occupation and title to land by providing thus:
“ (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).”
[131] The clear wording of the debarment of the High Court by the Constitution is that “shall not have jurisdiction in respect of matters falling within the jurisdiction of the courts under Article 162(2)”. On the other hand the ouster of its Jurisdiction under section 12(1) of the primary statue is that the Labour Relations and Employment Court “shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including—disputes relating to or arising out of employment between an employer and an employee;
Had the framers of the Constitution intended to restrict the power of Parliament to enact legislation enlarging the scope of jurisdiction of the High Court and at the same time limiting the jurisdiction of the Employment and Labour Relations Court with respect to certain disputes relating to employment and labour relations, it would have done so in express terms in the same way that the High Court is expressly barred, under Article 165(5), from exercising jurisdiction in respect of matters “falling within the jurisdiction of the courts contemplated in Article 162(2).”
[19] The Supreme further stated:
[135] By jurisdiction, it is clearly meant the authority which a court has to decide matters that are litigated before it or to take cognisance of 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 like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either to the kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which jurisdiction shall extend, or it may partake both these characteristics. If for example, the jurisdiction of an inferior court depends on the existence of a particular state of facts, the court must inquire into the existence of the facts in order to decide whether it has jurisdiction. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to a nullity. Jurisdiction, therefore, must be acquired before judgment is given.
[20] Where, as is the case herein, the issues concern the allocation, occupation, possession, tenure, use or an enforceable interest in market premises or spaces situated on land, such a dispute falls squarely within the category provided for in Section 13 of the Environment and Land Court Act. It therefore goes without saying that the proper forum in this instance ought to have been the Environment and Land Court.
[21] That the Environment and Land Court has the requisite jurisdiction to handle judicial review matters falling within their mandate for purposes of Section 13 is not in doubt. In Daniel N. Mugendi v Kenyatta University & 3 Others [2013] e KLR, the Court of Appeal held:
“… ... The industrial court can determine industrial and labour relations matters alongside claims of fundamental rights ancillary and incident to those matters, the same should go for the environment and land court, when dealing with disputes involving environment and land with any claims of breaches of fundamental rights associated with the two subjects…In the same token we venture to put forth the position that as we have concluded that the Industrial Court can determine industrial and labour relations matters alongside claims of fundamental rights ancillary and incident to those matters, the same should go for the Environment & Land Court, when dealing with disputes involving environment and land with any claims of breaches of fundamentals rights associated with two subjects.”
[22] Needless to add that judicial review is now a constitutional remedy and is anchored in Article 47 of the Constitution. For instance, in Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others [2017] eKLR, the Court of Appeal held:
"In our considered view presently, judicial review in Kenya has Constitutional underpinning in articles 22 and 23 as read with article 47 of the Constitution and as operationalized through the provisions of the Fair Administrative Action Act . The common law judicial review is now embodied and ensconced into constitutional and statutory judicial review. Order 53 of the Civil Procedure Act and rules is a procedure for applying for remedies under the common law and the Law Reform Act . These common law remedies are now part of the constitutional remedies that the High Court can grant under article 23(3)(c) and (f) of the Constitution . The fusion of common law judicial review remedies into the constitutional and statutory review remedies imply that Kenya has one and not two mutually exclusive systems for judicial review.
[23] It is also trite that a suit filed in a court without jurisdiction is null and void ab initio , and incapable of being transferred. In the Chaurembo case (supra) the Supreme Court held:
[154] …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.”
[24] Likewise, in Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR, 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.”
[25] In the premises, the suit is hereby struck out with no order as to costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF AUGUST 2026
[a] THAT a judicial review order of Certiorari be issued to remove into this court and quash the respondents’ decision of recalling and removing temporary kiosks of the ex parte applicants from Homa Bay Modern Market.
[b] THAT the costs of the application be provided for.
[2] The application was premised on the grounds the applicants were located next to Maranatha S.D.A. Church in Homa Bay Town and along Bank Road from where they were relocated by the County Government of Homa Bay (the 5th respondent) to Homa Bay Modern Market (the Market). They contended that they were all relocated to the Market with their temporary kiosks by the respondents and that since the relocation, they dutifully paid all the taxes demanded by the 5th respondent.
[3] The applicants further contended that sometime in early 2025, the respondents took a decision to have them vacate the Market without offering them any alternative solution. They then engaged the respondents in negotiations that led to rescission of the decision. The applicants were granted permits to operate their businesses for the entire duration of 2025. The applicants were therefore aggrieved that, whereas they were made to believe that the issue of relocation had been resolved, the respondents went ahead and issued verbal notices in April 2025 to vacate the Market; and thereafter served them with the same notice to vacate through WhatsApp Messenger.
[4] The applicants contended that the respondents are out to frustrate them, having caused them to relocate to the Modern Market lawfully. They asserted that the decision by the respondents to have them vacate their current locations without being given alternative business spaces is arbitrary and in breach of their right to fair administrative action. Accordingly, the applicants moved the Court for the order of Certiorari to quash the impugned notice to vacate.
[5] The application was premised on the affidavit of Joan Akinyi Otieno , the 1st applicant herein. She deposed that she had been authorized to make the deposition on behalf of the other applicants and annexed the authority to that effect to her affidavit. The 1st applicant averred that vide a letter dated 22nd April 2024, all the applicants were relocated to the Homa Bay Modern Market by the respondents and permitted to put up temporary kiosks at their new sites. They took issue with the fact that in the early part of 2025, the respondents purported to serve them with notices to vacate the Market without giving them any alternative spaces for their businesses. They annexed to their Supporting Affidavit copies of the initial relocation notices by which they were moved to the Modern Market as well as the authority given by the Manager, Homa Bay Municipality, permitting them to put up temporary kioks at the new location.
[6] In proof of the applicants’ assertion that after the vacation notice was served the parties engaged in negotiations that culminated in the rescission of the decision. The applicants attached copies of their business permits for the year 2025, by which the respondent permitted them to operate their business for the entire year at the Modern Market spaces. The applicants also annexed copies of the screenshots depicting the WhatsApp notices served on them by the respondents in April 2025 after issuing them with business permits for the year 2025. They urged the Court to find that the subsequent decision was arbitrary and therefore ought to be quashed.
[7] The respondents opposed the application vide their Grounds of Opposition dated 7th May 2025 in which they contended that:
[a] The Notice of Motion is incompetent, misconceived, scandalous, vexatious and a total abuse of the court process.
[b] The applicants have not exhausted all the internal appeal mechanisms before moving the Court for judicial review as required by Section 9(2) of the Fair Administrative Action Act.
[c] The applicants’ allegations that they were ordered to move are false and the screenshots produced before the Court do not originate from any of its offices.
[d] In any event, if and when such a decision is made by the respondents, the aggrieved parties have a right of appeal to the Environment and Land Court pursuant to the provisions of Section 13 of the Environment and Land Court Act.
[e] The Notice of Motion dated 28th April 2025 is premature since the jurisdiction of the Court has been challenged.
[8] The application was canvassed by way of written submissions, pursuant to the directions given herein on 10th June 2025. The applicants thereafter filed their written submissions dated 4th July 2025 and proposed one issue for determination, namely, whether an order of Certiorari should issue as prayed by the applicants. In this regard, the applicants relied on Municipal Council of Mombasa v Republic, Umoja Consultants Ltd , Nairobi Civil Appeal No. 185 OF 2007 [2002] eKLR, where the Court of Appeal held that an application for judicial review is only be concerned with the process leading to the making of the decision.
[9] They also relied on the Ugandan case of Pastoli v Kabale District Local Government Canal Others [2008] 2 EA 300 as to the elements that an applicant must prove; as well as the case of Kenya National Examinations Council & others v Republic, Ex Parte Geoffrey Gathenji Njoroge and 9 others, Msagha v Chief Justice 7 Others Nbi HCMA NO. 1062 and Onyango Oloo v Attorney General [1989] EA, on the scope and efficacy of judicial review order of Certiorari.
[10] Although no submissions were filed by the respondents it is noteworthy that they raised a pertinent threshold issue on whether or not this is the proper forum for ventilation of the issue of market space allocation. They also raised the question as to whether or not the applicants had exhausted the alternative dispute resolution mechanisms available to them before approaching the Court for relief.
[11] In the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (1989) I KLR the Court of Appeal pointed out that:
“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.”
[12] In the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] KLR the Supreme Court at para. 68 succinctly stated:
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 upon it 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.
[13] This Court derives its jurisdiction principally form Article 165 of the Constitution. Sub-Article (3) thereof provides as follows:
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 of Kenya is explicit that:
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] It was in the light of the foregoing provisions that the respondents questioned the jurisdiction of this Court in the matter, contending that issues to do with allocation of market stalls or spaces ought to have been presented before the Environment and Land Court. Indeed, Article 162(2) and (3) of the Constitution of Kenya provides that:
(2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to:
(a) employment and labour relations; and
(b) the environment and the use and occupation of, and title to, land.
(3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).
[16] And Section 13 of the Environment and Land Court Act provides for the jurisdiction of the court as follows:
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 interests in land; and
e) any other dispute relating to environment and land.
[17] The Supreme Court in R v Karisa Chengo & 2 Others Petition 5 of 2015 [2017] eKLR held as follows:
[52] In addition to the above, we note that pursuant to Article 162(3) of the Constitution, Parliament enacted the Environment and Land Court Act and the Employment and Labour Relations Act and respectively outlined the separate jurisdictions of the ELC and the ELRC as stated above. From a reading of the Constitution and these Acts of Parliament, it is clear that a special cadre of Courts, with suis generis jurisdiction, is provided for. We therefore entirely concur with the Court of Appeal’s decision that such parity of hierarchical stature does not imply that either ELC or ELRC is the High Court or vice versa. The three are different and autonomous Courts and exercise different and distinct jurisdictions. As Article 165(5) precludes the High Court from entertaining matters reserved to the ELC and ELRC, it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High Court.
[18] The Supreme Court restated the above position in Albert Chaurembo & 7 Others v Maurice Munyao & 148 Other [2019] eKLR as follows:
[130] It is clear to us that Article 165(5) of the Constitution ousts certain questions from the jurisdiction of the High Court on matters of employment and labour relations, and matters of environment, use, occupation and title to land by providing thus:
“ (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).”
[131] The clear wording of the debarment of the High Court by the Constitution is that “shall not have jurisdiction in respect of matters falling within the jurisdiction of the courts under Article 162(2)”. On the other hand the ouster of its Jurisdiction under section 12(1) of the primary statue is that the Labour Relations and Employment Court “shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including—disputes relating to or arising out of employment between an employer and an employee;
Had the framers of the Constitution intended to restrict the power of Parliament to enact legislation enlarging the scope of jurisdiction of the High Court and at the same time limiting the jurisdiction of the Employment and Labour Relations Court with respect to certain disputes relating to employment and labour relations, it would have done so in express terms in the same way that the High Court is expressly barred, under Article 165(5), from exercising jurisdiction in respect of matters “falling within the jurisdiction of the courts contemplated in Article 162(2).”
[19] The Supreme further stated:
[135] By jurisdiction, it is clearly meant the authority which a court has to decide matters that are litigated before it or to take cognisance of 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 like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either to the kind and nature of the actions and matters of which the particular court has cognizance, or as to the area over which jurisdiction shall extend, or it may partake both these characteristics. If for example, the jurisdiction of an inferior court depends on the existence of a particular state of facts, the court must inquire into the existence of the facts in order to decide whether it has jurisdiction. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to a nullity. Jurisdiction, therefore, must be acquired before judgment is given.
[20] Where, as is the case herein, the issues concern the allocation, occupation, possession, tenure, use or an enforceable interest in market premises or spaces situated on land, such a dispute falls squarely within the category provided for in Section 13 of the Environment and Land Court Act. It therefore goes without saying that the proper forum in this instance ought to have been the Environment and Land Court.
[21] That the Environment and Land Court has the requisite jurisdiction to handle judicial review matters falling within their mandate for purposes of Section 13 is not in doubt. In Daniel N. Mugendi v Kenyatta University & 3 Others [2013] e KLR, the Court of Appeal held:
“… ... The industrial court can determine industrial and labour relations matters alongside claims of fundamental rights ancillary and incident to those matters, the same should go for the environment and land court, when dealing with disputes involving environment and land with any claims of breaches of fundamental rights associated with the two subjects…In the same token we venture to put forth the position that as we have concluded that the Industrial Court can determine industrial and labour relations matters alongside claims of fundamental rights ancillary and incident to those matters, the same should go for the Environment & Land Court, when dealing with disputes involving environment and land with any claims of breaches of fundamentals rights associated with two subjects.”
[22] Needless to add that judicial review is now a constitutional remedy and is anchored in Article 47 of the Constitution. For instance, in Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others [2017] eKLR, the Court of Appeal held:
"In our considered view presently, judicial review in Kenya has Constitutional underpinning in articles 22 and 23 as read with article 47 of the Constitution and as operationalized through the provisions of the Fair Administrative Action Act . The common law judicial review is now embodied and ensconced into constitutional and statutory judicial review. Order 53 of the Civil Procedure Act and rules is a procedure for applying for remedies under the common law and the Law Reform Act . These common law remedies are now part of the constitutional remedies that the High Court can grant under article 23(3)(c) and (f) of the Constitution . The fusion of common law judicial review remedies into the constitutional and statutory review remedies imply that Kenya has one and not two mutually exclusive systems for judicial review.
[23] It is also trite that a suit filed in a court without jurisdiction is null and void ab initio , and incapable of being transferred. In the Chaurembo case (supra) the Supreme Court held:
[154] …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.”
[24] Likewise, in Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR, 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.”
[25] In the premises, the suit is hereby struck out with no order as to costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF AUGUST 2026