1. The Petitioners filed this Petition claim to be the legal and beneficial owners of all that parcel of land known as Land Parcel No. MN/III/3917 situated in Majengo area within Kilifi County, measuring approximately 45ft by 72ft, (the suit property) where they have constructed a residential and commercial buildings upon obtaining all relevant permits from relevant authorities. The Petitioners allege that sometime in December 2023, the 1st Respondent, proceeded to mark and thus deface the suit property as a prelude to demolition thereof claiming that the same had encroached on a road reserve. The Petitioners claim that that was done in total disregard of the acquisition process, and sought reliefs inter alia, a declaration that they are the rightful owners of the suit property, conservatory orders against the Respondents, and an order for compensation for infringement of their constitutional rights and illegal occupation.
2. The Petitioners claim a violation of Articles 10, 40, 40 (3) and 47 of the Constitution of Kenya, 2010.
3. The 2nd Respondent filed grounds of opposition dated 6/5/2025. The 1st Respondent filed grounds of opposition dated 7/2/2025 and a Notice of Preliminary Objection dated 14/3/2025 setting out the following grounds:
1) The Application and Petition are fraught with mala fide, incurably defective, incompetent, misconceived and otherwise and hinged on the wrong provisions of Law and Procedure;
2) This Honourable Court lacks the jurisdiction to entertain the said Petition as it offends Section 133C of the Land Act, No. 6 of 2012, Laws of Kenya;
3) This Petition is a claim for compensation in regards to compulsory acquisition. The Petitioners’ land identified as Land Parcel No. MN/III/3917 was acquired for the dualing of the Nyali Bridge–Mtwapa–Kawa Kadzengo–Kilifi (A7) Road Section;
4) The legal position established under Sections 133A, 133C,133D of the Land Act states that any disputes regarding compensation of compulsorily acquired land should start with the National Land Commission and then forwarded to the Land Acquisition Tribunal and if dissatisfied with the determination of the Tribunal, then the said party can appeal to the Environment and Land Court on issues of law;
5) The Petitioners herein have thus failed and/or neglected to exhaust the alternative means of dispute resolution as provided by statute;
6) The instant suit is therefore premature, frivolous and an abuse of the court process as this Honourable Court’s jurisdiction has been limited by statute.
4. The Preliminary Objection is the subject of this ruling, and it was directed that it be heard by way of written submissions.
Submissions by the 1st Respondent
5. The submissions identify two key legal issues:
a. Whether this Honourable Court lacks jurisdiction to hear and determine the Petition;
b. whether the Petition ought to be struck out.
6. The 1st Respondent begins by defining the nature of a Preliminary Objection using the classic authority of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where a Preliminary Objection is defined as a pure point of law that, if upheld, may dispose of the suit entirely. Citing Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, the 1st Respondent underscores the principle that jurisdiction is fundamental and must be determined at the earliest opportunity and that a court without jurisdiction must "down its tools" and take no further steps in the matter.
7. Reference is made to Samuel Kamau Macharia & Another v Kenya Commercial Bank & 2 Others [2012] eKLR, where the Supreme Court held that a court’s jurisdiction flows from the Constitution or statute and cannot be assumed or conferred by the parties.
8. The 1st Respondent submits that the Environment and Land Court derives its jurisdiction under Section 13 of the Environment and Land Court Act, which is limited to disputes arising under Article 162(2)(b) of the Constitution and those expressly involving issues of land use, title, environmental protection, and related matters.
9. Crucially, the 1st Respondent submits that this matter involves compulsory acquisition of land, which is a specialized area governed by Part VIII of the Land Act, 2012 and thus falls within the jurisdiction of the Land Acquisition Tribunal established under Section 133A of the Act. The 1st Respondent urges that the jurisdiction of the Tribunal is detailed under Section 133C of the Land Act, which provides that persons aggrieved by decisions of the National Land Commission in matters of compulsory acquisition may appeal to the Tribunal; that such disputes must be referred to the Tribunal in the first instance; that the Tribunal may address compensation-related disputes, procedural irregularities, and constitutional grievances arising under Articles 23(2) and 47(3) of the Constitution.
10. The 1st Respondent thus argues that the instant Petition violates Sections 133C (2), (6), and (8) of the Land Act, and that this Court lacks jurisdiction to entertain the dispute in the first instance.
11. On whether the Petition ought to be struck out, the 1st Respondent invokes the Doctrine of Exhaustion, asserting that the Petitioner has not exhausted the alternative statutory dispute resolution mechanisms available under the Land Act before approaching this Court. Reference is made to the Supreme Court decision in Albert Chaurembo Mumbo & 7 Others v Maurice Munyao & 148 Others [2019] eKLR, which emphasized that litigants must first approach the appropriate administrative or quasi-judicial bodies established under law before seeking relief in the superior courts.
12. The submissions also rely on the Environment and Land Court’s own decision in Mulu & 55 Others v National Land Commission & 2 Others [2023] eKLR, where the court held that where a statute has established a specific dispute resolution process, courts must defer to that process and avoid assuming jurisdiction prematurely.
13. Additional reliance is placed on the cases of Abraham Mwangi Wamigwi v Simon Mbiriri Wanjiku & Another [2012] eKLR, which held that a matter filed in a forum without jurisdiction is a nullity and cannot be transferred; and Phoenix of East Africa Assurance Co. Ltd v S.M. Thiga t/a Newspaper Service [2019] eKLR, where the court held that jurisdiction must exist at the time of filing. A suit filed without jurisdiction is “dead on arrival” and cannot be cured.
14. The 1st Respondent thus urged the Court to strike out the Petition dated 5/4/2024 with costs to it.
Submissions by the Petitioners
15. Like the 1st Respondent, the Petitioners rely on the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [supra], Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd and Samuel Kamau Macharia & Another v Kenya Commercial Bank & 2 Others to highlight the scope of preliminary objections and jurisdiction. The Petitioners argue that in determining the Preliminary Objection, the court is called upon to determine whether the petition meets the threshold before the constitutional court. That this would mean making a determination based on the facts of the Respondent’s infringement of the Petitioners’ rights which will defeat the main essence of a Preliminary Objection. They rely on the case of John Musakali v Speaker of County of Bungoma & 4 Others [2015] eKLR and urge the Court to dismiss the PO.
16. The Petitioners further submit that Article 22 of the Constitution grants each person a right to approach the Court alleging that a right or fundamental freedom has been violated or is threatened to be violated. The Petitioners assert that the threshold for a constitutional petition was determined in the case of Anarita Karimi Njeru v the Republic [1976-1980] KLR 1272, and that the Petitioners have clearly outlined in the Petition the various rights violated by the Respondents.
17. To the Petitioners, the jurisdiction of this court under Article 162 (2) of the Constitution and Section 13 (2) (b) of the ELC Act cannot be ousted by Section 133A and 133B of the Land Act, since the claim herein is not an appeal from a decision of the National Land Commission as envisioned under Section 133B of the Land Act. The Petitioners argue that the Petition is solely based on an unlawful and recurrent trespass by the Respondents. They add that regardless of the above, the Court is clothed with jurisdiction under the aforementioned provisions to determine disputes relating to compulsory acquisition of land.
18. They submit that the provisions of Section 133C of the Land Act limits the jurisdiction of the Tribunal to hearing appeals from decisions of the National Land Commission and that a complaint arising from constitutional violations and inordinate delay of compensation, like the present petition, falls outside the tribunal’s jurisdiction. Reliance is placed on Abidha Nicholus v AG & 12 Others; and William Odhiambo Ramogi & 3 Others v AG & 6 Others [2020] eKLR.
19. The Petitioners urge the court to dismiss the Preliminary Objection for lack of merit and grant costs to the Petitioners.
ANALYSIS AND DETERMINATION
20. The following issues arise for determination:
i. Whether the Preliminary Objection meets the threshold in law;
ii. Whether this Court has jurisdiction to entertain the Petition as filed;
iii. Whether the Petition should be struck out at this stage.
21. The 1st Respondent invokes the authority of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [supra] and Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [supra], to assert that jurisdiction is a pure point of law and can be raised by way of preliminary objection. I agree. Jurisdiction is foundational and a court must determine whether it is properly seized before proceeding further. It follows therefore that the objection herein raises a point of law and is therefore properly before the Court.
22. The 1st Respondent argues that the Petition concerns compensation for compulsory acquisition of land earmarked for a public project — the dualing of the Nyali Bridge–Mtwapa–Kilifi road. It submits that such disputes fall within the exclusive jurisdiction of the Land Acquisition Tribunal as established under Section 133A of the Land Act, and that appeals may lie to this Court only on points of law as provided in Section 133C (8) thereof.
23. The Petitioners, on the other hand, argue that their dispute is not based on a decision by the National Land Commission. They aver that no acquisition has lawfully occurred, and that the actions of the Respondents amount to a continuing trespass and infringement of constitutional rights, thus attracting the original jurisdiction of this Court under Articles 22 and 162(2)(b) of the Constitution, and Section 13 of the Environment and Land Court Act.
24. This Court is alive to the doctrine of constitutional avoidance and the principle of exhaustion. As held by the Supreme Court in Albert Chaurembo Mumbo & 7 Others v Maurice Munyao & 148 Others [supra], where a statute establishes an effective dispute resolution mechanism, parties ought to pursue such avenues before resorting to the Court.
25. However, the Court is also guided by the exception recognised in Republic v National Environment Management Authority Ex parte Sound Equipment Ltd [2011] eKLR, and reiterated in Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR, to the effect that a court may exercise jurisdiction where the alternative remedy is inadequate, or the dispute involves pure constitutional issues.
26. I have examined the pleadings and note that the Petition does not challenge any decision of the National Land Commission. Rather, it alleges that the Respondents have encroached upon private land without initiating any acquisition process. No evidence of a gazette notice, award of compensation, or formal acquisition has been placed before this Court. There is also no indication that the Tribunal has rendered any determination from which the Petitioners could appeal.
27. In such circumstances, this Court is not persuaded that the Land Acquisition Tribunal has the jurisdiction to deal with an alleged unlawful trespass or continuing violation of the right to property. Indeed, this Court is specifically empowered under Article 23(1) and Section 13 of the ELC Act to hear and determine disputes concerning violations of constitutional rights in relation to land and environment.
28. Accordingly, I find that the Petition raises substantial constitutional questions regarding alleged arbitrary state action, procedural fairness, and violation of property rights, issues which this Court is properly mandated to adjudicate.
29. Having carefully considered the Preliminary Objection and the submissions of the parties, I am not satisfied that the Petition is barred by statute. The Petition raises substantive constitutional issues which this Court is competent to hear and determine.
30. Accordingly, the Preliminary Objection dated 14/3/2025 is dismissed. Costs shall abide the outcome of the main Petition.
31. This matter shall be mentioned on 2/10/2025 for directions.
Dated, signed and delivered at Malindi via electronic mail on this 27th day of June 2025.
2. The Petitioners claim a violation of Articles 10, 40, 40 (3) and 47 of the Constitution of Kenya, 2010.
3. The 2nd Respondent filed grounds of opposition dated 6/5/2025. The 1st Respondent filed grounds of opposition dated 7/2/2025 and a Notice of Preliminary Objection dated 14/3/2025 setting out the following grounds:
1) The Application and Petition are fraught with mala fide, incurably defective, incompetent, misconceived and otherwise and hinged on the wrong provisions of Law and Procedure;
2) This Honourable Court lacks the jurisdiction to entertain the said Petition as it offends Section 133C of the Land Act, No. 6 of 2012, Laws of Kenya;
3) This Petition is a claim for compensation in regards to compulsory acquisition. The Petitioners’ land identified as Land Parcel No. MN/III/3917 was acquired for the dualing of the Nyali Bridge–Mtwapa–Kawa Kadzengo–Kilifi (A7) Road Section;
4) The legal position established under Sections 133A, 133C,133D of the Land Act states that any disputes regarding compensation of compulsorily acquired land should start with the National Land Commission and then forwarded to the Land Acquisition Tribunal and if dissatisfied with the determination of the Tribunal, then the said party can appeal to the Environment and Land Court on issues of law;
5) The Petitioners herein have thus failed and/or neglected to exhaust the alternative means of dispute resolution as provided by statute;
6) The instant suit is therefore premature, frivolous and an abuse of the court process as this Honourable Court’s jurisdiction has been limited by statute.
4. The Preliminary Objection is the subject of this ruling, and it was directed that it be heard by way of written submissions.
Submissions by the 1st Respondent
5. The submissions identify two key legal issues:
a. Whether this Honourable Court lacks jurisdiction to hear and determine the Petition;
b. whether the Petition ought to be struck out.
6. The 1st Respondent begins by defining the nature of a Preliminary Objection using the classic authority of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, where a Preliminary Objection is defined as a pure point of law that, if upheld, may dispose of the suit entirely. Citing Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, the 1st Respondent underscores the principle that jurisdiction is fundamental and must be determined at the earliest opportunity and that a court without jurisdiction must "down its tools" and take no further steps in the matter.
7. Reference is made to Samuel Kamau Macharia & Another v Kenya Commercial Bank & 2 Others [2012] eKLR, where the Supreme Court held that a court’s jurisdiction flows from the Constitution or statute and cannot be assumed or conferred by the parties.
8. The 1st Respondent submits that the Environment and Land Court derives its jurisdiction under Section 13 of the Environment and Land Court Act, which is limited to disputes arising under Article 162(2)(b) of the Constitution and those expressly involving issues of land use, title, environmental protection, and related matters.
9. Crucially, the 1st Respondent submits that this matter involves compulsory acquisition of land, which is a specialized area governed by Part VIII of the Land Act, 2012 and thus falls within the jurisdiction of the Land Acquisition Tribunal established under Section 133A of the Act. The 1st Respondent urges that the jurisdiction of the Tribunal is detailed under Section 133C of the Land Act, which provides that persons aggrieved by decisions of the National Land Commission in matters of compulsory acquisition may appeal to the Tribunal; that such disputes must be referred to the Tribunal in the first instance; that the Tribunal may address compensation-related disputes, procedural irregularities, and constitutional grievances arising under Articles 23(2) and 47(3) of the Constitution.
10. The 1st Respondent thus argues that the instant Petition violates Sections 133C (2), (6), and (8) of the Land Act, and that this Court lacks jurisdiction to entertain the dispute in the first instance.
11. On whether the Petition ought to be struck out, the 1st Respondent invokes the Doctrine of Exhaustion, asserting that the Petitioner has not exhausted the alternative statutory dispute resolution mechanisms available under the Land Act before approaching this Court. Reference is made to the Supreme Court decision in Albert Chaurembo Mumbo & 7 Others v Maurice Munyao & 148 Others [2019] eKLR, which emphasized that litigants must first approach the appropriate administrative or quasi-judicial bodies established under law before seeking relief in the superior courts.
12. The submissions also rely on the Environment and Land Court’s own decision in Mulu & 55 Others v National Land Commission & 2 Others [2023] eKLR, where the court held that where a statute has established a specific dispute resolution process, courts must defer to that process and avoid assuming jurisdiction prematurely.
13. Additional reliance is placed on the cases of Abraham Mwangi Wamigwi v Simon Mbiriri Wanjiku & Another [2012] eKLR, which held that a matter filed in a forum without jurisdiction is a nullity and cannot be transferred; and Phoenix of East Africa Assurance Co. Ltd v S.M. Thiga t/a Newspaper Service [2019] eKLR, where the court held that jurisdiction must exist at the time of filing. A suit filed without jurisdiction is “dead on arrival” and cannot be cured.
14. The 1st Respondent thus urged the Court to strike out the Petition dated 5/4/2024 with costs to it.
Submissions by the Petitioners
15. Like the 1st Respondent, the Petitioners rely on the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [supra], Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd and Samuel Kamau Macharia & Another v Kenya Commercial Bank & 2 Others to highlight the scope of preliminary objections and jurisdiction. The Petitioners argue that in determining the Preliminary Objection, the court is called upon to determine whether the petition meets the threshold before the constitutional court. That this would mean making a determination based on the facts of the Respondent’s infringement of the Petitioners’ rights which will defeat the main essence of a Preliminary Objection. They rely on the case of John Musakali v Speaker of County of Bungoma & 4 Others [2015] eKLR and urge the Court to dismiss the PO.
16. The Petitioners further submit that Article 22 of the Constitution grants each person a right to approach the Court alleging that a right or fundamental freedom has been violated or is threatened to be violated. The Petitioners assert that the threshold for a constitutional petition was determined in the case of Anarita Karimi Njeru v the Republic [1976-1980] KLR 1272, and that the Petitioners have clearly outlined in the Petition the various rights violated by the Respondents.
17. To the Petitioners, the jurisdiction of this court under Article 162 (2) of the Constitution and Section 13 (2) (b) of the ELC Act cannot be ousted by Section 133A and 133B of the Land Act, since the claim herein is not an appeal from a decision of the National Land Commission as envisioned under Section 133B of the Land Act. The Petitioners argue that the Petition is solely based on an unlawful and recurrent trespass by the Respondents. They add that regardless of the above, the Court is clothed with jurisdiction under the aforementioned provisions to determine disputes relating to compulsory acquisition of land.
18. They submit that the provisions of Section 133C of the Land Act limits the jurisdiction of the Tribunal to hearing appeals from decisions of the National Land Commission and that a complaint arising from constitutional violations and inordinate delay of compensation, like the present petition, falls outside the tribunal’s jurisdiction. Reliance is placed on Abidha Nicholus v AG & 12 Others; and William Odhiambo Ramogi & 3 Others v AG & 6 Others [2020] eKLR.
19. The Petitioners urge the court to dismiss the Preliminary Objection for lack of merit and grant costs to the Petitioners.
ANALYSIS AND DETERMINATION
20. The following issues arise for determination:
i. Whether the Preliminary Objection meets the threshold in law;
ii. Whether this Court has jurisdiction to entertain the Petition as filed;
iii. Whether the Petition should be struck out at this stage.
21. The 1st Respondent invokes the authority of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [supra] and Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [supra], to assert that jurisdiction is a pure point of law and can be raised by way of preliminary objection. I agree. Jurisdiction is foundational and a court must determine whether it is properly seized before proceeding further. It follows therefore that the objection herein raises a point of law and is therefore properly before the Court.
22. The 1st Respondent argues that the Petition concerns compensation for compulsory acquisition of land earmarked for a public project — the dualing of the Nyali Bridge–Mtwapa–Kilifi road. It submits that such disputes fall within the exclusive jurisdiction of the Land Acquisition Tribunal as established under Section 133A of the Land Act, and that appeals may lie to this Court only on points of law as provided in Section 133C (8) thereof.
23. The Petitioners, on the other hand, argue that their dispute is not based on a decision by the National Land Commission. They aver that no acquisition has lawfully occurred, and that the actions of the Respondents amount to a continuing trespass and infringement of constitutional rights, thus attracting the original jurisdiction of this Court under Articles 22 and 162(2)(b) of the Constitution, and Section 13 of the Environment and Land Court Act.
24. This Court is alive to the doctrine of constitutional avoidance and the principle of exhaustion. As held by the Supreme Court in Albert Chaurembo Mumbo & 7 Others v Maurice Munyao & 148 Others [supra], where a statute establishes an effective dispute resolution mechanism, parties ought to pursue such avenues before resorting to the Court.
25. However, the Court is also guided by the exception recognised in Republic v National Environment Management Authority Ex parte Sound Equipment Ltd [2011] eKLR, and reiterated in Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR, to the effect that a court may exercise jurisdiction where the alternative remedy is inadequate, or the dispute involves pure constitutional issues.
26. I have examined the pleadings and note that the Petition does not challenge any decision of the National Land Commission. Rather, it alleges that the Respondents have encroached upon private land without initiating any acquisition process. No evidence of a gazette notice, award of compensation, or formal acquisition has been placed before this Court. There is also no indication that the Tribunal has rendered any determination from which the Petitioners could appeal.
27. In such circumstances, this Court is not persuaded that the Land Acquisition Tribunal has the jurisdiction to deal with an alleged unlawful trespass or continuing violation of the right to property. Indeed, this Court is specifically empowered under Article 23(1) and Section 13 of the ELC Act to hear and determine disputes concerning violations of constitutional rights in relation to land and environment.
28. Accordingly, I find that the Petition raises substantial constitutional questions regarding alleged arbitrary state action, procedural fairness, and violation of property rights, issues which this Court is properly mandated to adjudicate.
29. Having carefully considered the Preliminary Objection and the submissions of the parties, I am not satisfied that the Petition is barred by statute. The Petition raises substantive constitutional issues which this Court is competent to hear and determine.
30. Accordingly, the Preliminary Objection dated 14/3/2025 is dismissed. Costs shall abide the outcome of the main Petition.
31. This matter shall be mentioned on 2/10/2025 for directions.
Dated, signed and delivered at Malindi via electronic mail on this 27th day of June 2025.