REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTION AND HUMAN RIGHTS DIVISION
PETITION NO. E685 OF 2024
ROBERT WACHIRA KAMAU …………………………. 1 ST PETITIONER
ROCKEY AFRICA LIMITED …………………………… 2 ND PETITIONER
-VERSUS-
KENYA MEAT COMMISSION …………….…………. 1 ST RESPONDENT
HENRY MATALANGA T/A
AUCTIONEERS LIMITED ……...………………….… 2 ND RESPONDENT
JUDGMENT
1. This Petition dated 10 th December 2024 is a constitutional and administrative challenge regarding a jurisdictional dispute in a lower court tenancy case. The Petitioners Robert Wachira Kamau and Rockey Africa Limited seek the following reliefs: -
(a) A declaration that the Hon. Paul Rotich, Senior Principal Magistrate in making a finding on jurisdiction in his Ruling dated 4 th November 2024 acted Ultra vires his powers and thus unlawfully, in violation of Article 47 of the Constitution.
(b) An Order setting aside the decision of the Hon. Paul Rotich, Senior Principal Magistrate in his Ruling dated 4 th November 2024.
(c) An Order for stay of proceedings in Milimani CMCC 339 of 2019, and in the alternative; an Order calling for the record of proceedings in Milimani CMCC 339 of 2019 for further Orders as may be appropriate to ensure the fair administration of justice including but not limited an Order for withdrawal of the suit from the subordinate court and transfer of the same to the Honourable Court for trial and disposal.
(d) An injunction directed at the 1 st & 2 nd Respondents either by themselves, agents, servants, representative or any other person acting pursuant to their instructions be restrained from levying distress for rent or otherwise interfere with the Petitioners' quiet enjoyment of the suit property.
(e) A conservatory order preserving the Petitioners’ possession and quiet enjoyment of the suit property.
2. The Petition is premised on the facts outlined on its face and further supported by the affidavit sworn by the 1 st Petitioner as the Managing Director of Rockey Africa Limited, dated evenly with the Petition. The facts giving rise to the Petition are that the Petitioners leased property known as L.R. No. 4275/40 on Riverside Drive, Nairobi, from the 1 st Respondent Kenya Meat Commission. The 1 st Respondent then issued an eviction notice demanding Kshs. 4,700,000 in rent arrears. The Petitioners claim that the 1 st Respondent actually owes them Kshs. 12,800,000 for advance rent and authorized repairs.
3. The 1 st Petitioner Robert Wachira Kamau deposes that they originally filed suit CMCC 331 of 2019 in the Chief Magistrate's Court to secure interim injunctions to protect their peaceful occupancy of property L.R. No. 4275/40 on Riverside Drive, Nairobi. That although the lower court in a Ruling by Hon. D. W. Mburu (SPM) formally affirmed its pecuniary jurisdiction on 22 nd November 2019 by dismissing the Respondents’ objection, Hon. Paul Rotich issued a contradictory ruling on 4 th November 2024, finding that the court lacked jurisdiction and effectively dismissed the suit. The deponent asserts that the first Ruling by Hon. Mburu was never appealed or reviewed.
4. The deponent states that this 2024 ruling was improper, unlawful because the court was functus officio and ultra vires because the issue of jurisdiction was already settled and was not brought forward through a formal application for review. Additionally, it is pointed out that the ruling improperly relied on a counterclaim that lacked legal standing due to unpaid mandatory court filing fees.
5. It is averred that by unexpectedly discarding the suit and dismantling the protective interlocutory orders without due process, the magistrate violated the Petitioners’ rights to fair administrative action under Article 47 of the Constitution and exposed them to the immediate threat of eviction.
6. Consequently, the Petitioners invoke Articles 23 and 165 of the Constitution to urge the Court to exercise its supervisory authority over the subordinate court and to urgently grant the requested constitutional remedies. It is reiterated that the Petitioners initiated suit vide Milimani CMCC 339 of 2019 and received interim protection against eviction.
Response to the Petition
7. In response to the Petition, the 1 st Respondent filed a Replying Affidavit sworn by Anthony Ademba, the Chief Legal Officer of the 1 st Respondent (Kenya Meat Commission and dated 17 th December 2024 in which he deposes that the High Court lacks jurisdiction over the petition, as the petition arises from a decision made in Nairobi COMM. No. 331 of 2019, which concerns property L.R No. 4275/40, Riverside Drive, Nairobi.
8. The deponent states that the Petitioners have occupied the property for over five years since the expiry of a lease dated 1 st April 2007, without paying rent, relying on a now-lapsed court order.
9. The deponent further asserts that any complaints about the magistrate’s decision should be addressed to the Environment and Land Court, which has the appropriate jurisdiction. He further sets out the procedural history of the dispute between the parties hereto and states that on 27 th November 2024, the magistrate directed the Petitioners to file a supplementary affidavit and submissions within 14 days, but the Petitioners did not comply.
10. The Respondents accuse the Petitioners of acting in bad faith, noting that the petitioners were aware of the Respondents’ Application before the Environment and Land Court in ELC/MISC/E281/2024 before filing the current petition. The Respondents also contend that the Petitioners have repeatedly tried to delay proceedings and avoid paying rent, including filing a suit after lease expiry and resisting rent collection efforts; proposing out-of-court settlement to delay hearings, causing adjournments by claiming lack of service and failing to file required affidavits, prompting warnings from the court.
11. The Respondents urge the court to strike out the Petitioners’ Application for lack of jurisdiction and to award costs to the Respondents.
12. The Petitioners filed a further affidavit sworn on 20 th March, 2025 by Robert Wachira Kamau, the Director of Rockey Africa, opposing the arguments raised by the Respondents in their Replying Affidavit. They assert that the Court has proper jurisdiction to hear and determine the petition because the petition centers on fundamental human rights violations, constitutional breaches and procedural inefficiencies rather than mere property disputes.
13. While acknowledging that the Respondents hold legal ownership of the property (L.R. No. 4275/40 on Riverside Drive, Nairobi it is asserted that the Petitioners’ 35-year occupation was based on lawful grounds, as supported by an August 2019 ruling. It is emphasized that human rights and constitutional grievances fall outside the restrictive procedural scope of the Environment and Land Court, validating the choice to file the petition in the High Court.
14. Addressing prior court directives, the deponent expresses grievance over an allegedly unprecedented ruling made by Hon. Paul Rotich during a routine mention date. He avers that this ruling improperly relied on unproven figures from the Defendants’ counterclaim, for which no filing fees had even been paid.
15. That consequently, the Petitioners were unable to meet the set deadlines and now request an extension to properly resolve these issues. It is furthermore, stated that while they were aware of parallel proceedings in the Environment and Land Court, those proceedings do not negate the urgency of their constitutional Petition, which is brought in good faith to seek redress for distinct rights violations.
16. The deponent reiterates that the original Plaint and Notice of Motion filed in July 2019 stem from legitimate legal grounds and should be determined on their merits over mere technicalities. He notes that the Petitioners previously attempted an out-of-court settlement via a September 2022 letter to resolve the matter amicably but received no response from the Respondents. The Petitioners affirm their commitment to complying with all court directions and request that the matter proceeds expeditiously in the interest of justice.
17. The Petition was canvassed by written submissions.
The Petitioners’ Submissions
18. The Petitioners’ submissions are dated 20 th March 2025 in which Counsel submits that the Magistrate’s Court declined jurisdiction due to the high value of the counterclaim (Kshs. 30,000,000), but the Petitioners argue that this was based on unsubstantiated figures. Counsel for the Petitioners raise two main issues:
whether the High Court has supervisory jurisdiction over the matter, and whether the Magistrate erred in his ruling regarding the suit property.
19. The Petitioners rely on Articles 23 and 165 of the Constitution, which empower the High Court to enforce the Bill of Rights and address violations of fundamental rights. It is submitted that Article 50 guarantees the right to a fair hearing, which the Petitioners claim was compromised by the actions of the Respondents and the Magistrate.
20. Counsel for the petitioner cites the case of Protus Buliba Shikuku v Attorney General [2012] eKLR where it was held that Articles 23 and165 of the Constitution grant the High Court authority to address violations of fundamental rights, even if arising from lower court decisions; the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate & 4 others [2013] eKLR (para 12) which affirmed the High Court’s exclusive authority to handle cases involving violations of fundamental right; Alice Sisina v Land Registrar Kajiado & another [2015] eKLR which emphasized the High Court’s supervisory powers under Article 165(6) and (7) to set aside orders that do not meet standards of legality and propriety and Peters v Sunday Post Limited [1958] E.A. which established that appellate courts can review evidence but must exercise caution and respect the trial judge’s advantage in observing witnesses.
21. The petitioners argue that a thorough review of the evidence and the trial court's judgment and a re-evaluation of the facts be undertaken in order to have an independent determination of the petition. While acknowledging that appellate courts can review evidence, they emphasize the importance of the trial court’s findings, given the advantage of observing witnesses and urge this Court to exercise its jurisdiction cautiously, not merely to reach a different conclusion, but to decide whether the trial court’s findings should be upheld.
22. On the second issue, Counsel cites the case of John Teleyio Ole Sawoyo v David Omwenga Maobe [2013] eKLR which outlined the duty of a first appellate court to review both factual and legal aspects, while considering the trial court’s advantage in hearing witnesses. It is submitted that allowing the current decision to stand would prejudice the petitioners by disregarding the prior ruling of the SPM Hon. David Mburu, thereby favoring the respondent and undermining established legal principles. That albeit the Petitioners acknowledge the directions issued by Honourable Mr. Paul Rotich on 26 th November 2024, they remain dissatisfied with the magistrate’s issuance of a substantive ruling on a mention date intended only for procedural matters.
23. The case of Gulam Hussein Jivanji v Jivanji & Another [1929–30] KLR 44 is cited where it was held that a party aggrieved by a judgment must challenge the formal decree or order, not just specific passages in the judgment. The Petitioners submit that Hon. Rotich denied them adequate time to prepare their defense by unexpectedly introducing the matter and issuing directions shortly thereafter, contrary to the guarantees of Article 50(1) on fair hearing. They further argue that this decision undermines equality before the law under Article 27(1), as it compromises their right to a fair hearing and risks prejudicing their case.
24. Citing Francis Karioko Muruatetu & Another v Republic [2017] eKLR where the Supreme Court emphasized that the right to a fair trial is inalienable and non-derogable under Article 25(c) of the Constitution, Counsel for the Petitioners argue that substantive decisions were made during a mention date, which is improper and which led to injustice. They submit that the Magistrate’s actions denied them adequate time to prepare their defense, violating Article 50(1) . It is their further submission that the right to equality before the law under Article 27(1) and a fair hearing are inalienable and are at risk if the decision stands.
25. The Petitioners urge the Court to exercise its supervisory jurisdiction to correct procedural irregularities and uphold their fundamental rights, particularly the right to a fair hearing and due process.
The Respondents’ Submissions
26. The Respondent’s Submissions are dated 14 th July 2025. Counsel outlines the background of the matter and submits that the dispute centers on an expired lease over L.R No. 4275/40 Riverside Drive, Nairobi County, valued at over Kshs. 236,000,000/=. That despite the lease expiring on 1 st April 2019, the Petitioners refused to yield vacant possession and instead initiated Civil Suit No. 331 of 2019 in the Chief Magistrate's Court at Milimani to prevent the 1 st Respondent from exercising its proprietary rights.
27. That by April 2024, the 1 st Respondent had incurred rent arrears exceeding Kshs. 30,000,000/=. That following a consent between the parties, the Trial Court granted leave on 10 th June 2024 for the Respondents to file an Amended Defence and a Counterclaim. That on 4 th November 2024, the Trial Court held that it lacked pecuniary jurisdiction over the Amended Counterclaim and ordered the transfer of the case to the Environment and Land Court (ELC). Consequently, the Respondents filed a transfer application in ELC/MISC/E251/2024 before the ELC at Milimani.
28. It is submitted that despite knowing about the ELC proceedings, the Petitioners sought to review or set aside the transfer order before the Trial Court, thereby causing delay due to the concurrent pendency of the matter in the ELC. That the Petitioners subsequently filed the present Petition and Notice of Motion dated 10 th December 2024, seeking similar review reliefs.
29. Counsel for the Respondents isolate the following issues for determination: whether the present Petition dated 10 th December 2024 is competent before this Honourable Court;
whether this Honourable Court is the appropriate forum before which this dispute should be dispensed with; and
whether the Petitioners’ actions in relation to this dispute amount to an abuse of this Honourable Court’s process.
30. The Respondents submit through their Counsel that the Petition is incompetent and bad in law, asserting that the true grievance stems from dissatisfaction with a jurisdictional ruling rather than a genuine violation of constitutional rights or fair administrative action. They further submit that aggrieved parties must pursue appeals through the established statutory mechanisms rather than misusing constitutional Petitions, particularly when allegations like automated Case Tracking Systems filing fee undercharges do not constitute constitutional breaches.
31. Invoking the doctrine of Constitutional Avoidance, the Respondents cite Gabriel Mutava Elizabeth Kwini & Mary Martha Masyuki v Managing Director, Kenya Ports Authority & Kenya Ports Authority [2016] KECA 411 (KLR) , which they argue, warns against turning the Constitution into a "thoroughfare for resolution of every kind of common grievance" when a matter can be resolved without reaching constitutional issues.
32. They also rely on Japheth Ododa Origa v Vice Chancellor, University of Nairobi and 2 others [2018] KEHC 4861 (KLR), in which the Court is said to have affirmed that simple disagreements or disapprovals of public decisions should not automatically trigger constitutional claims unless there is a real infringement of fundamental rights.
33. Further, the Respondents contend that the High Court is the wrong forum. Under Article 162(2)(b) of the Constitution as read with Section 13(2) of the Environment and Land Court Act, for reasons that the ELC holds exclusive jurisdiction over land-related disputes. They rely on Pepe Limited v Kenya Railways Corporation & 3 others [2019] KEELC 4817 (KLR) , where the court is said to have emphasized that claims involving the use and occupation of land including commercial leases fall squarely under the ELC’s jurisdiction rather than the High Court’s, even if framed as constitutional petitions.
34. Finally, the Respondents submit that running parallel proceedings in multiple courts seeking the exact same remedies constitutes a clear abuse of the court process. Citing Joyce Cherop Kaspandoy & 609 others v Kenya Power and Lighting Company [2019] KEHC 11902 (KLR), the Respondents highlight that litigation is not a "game of chess" and pursuing two simultaneous processes to achieve a favorable outcome is impermissible in law. That the Petitioners’ attempt to seek the same review remedies in the High Court while the ELC matter remains pending demonstrates an intent to frustrate proceedings, rendering the Petition fatally defective ab initio and subject to dismissal with costs.
Analysis and Determination
35. Having evaluated the pleadings, affidavits and written submissions of both parties, the following issues arise for determination:
(a) Whether the High Court has jurisdiction to entertain this petition or whether the proper forum is the Environment and Land Court (ELC).
(b) Whether the Petition is competent under the Doctrine of Constitutional Avoidance.
(c) Whether the Petitioners’ actions constitute an abuse of the judicial process.
(a) Whether the High Court has jurisdiction to entertain this Petition or whether the proper forum is the Environment and Land Court (ELC).
36. Jurisdiction refers to the legal authority of a court to hear and determine a matter and it is the foundation upon which judicial power rests. This Court’s jurisdiction is expressly provided for under Article 165 of the Constitution , which empowers the High Court to hear questions relating to violations of rights and freedoms, as well as to interpret the Constitution.
37. The Supreme Court emphasized in Samuel Kamau Macharia v Kenya Commercial Bank & Others [2012] eKLR that jurisdiction flows from the Constitution, statute or both and that without jurisdiction a court of law cannot act. This principle on the importance of jurisdiction was enunciated in the locus classicus Owners of Motor Vessel “Lillian S” v. Caltex Oil (Kenya) Ltd (1989) KLR 1 where it was held thus:
“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.”
38. Article 162 (2) (b) of the Constitution establishes the Environment and Land Court (ELC) to hear and determine disputes relating to (b) the environment and the use and occupation of, and title to, land. Section 13(2) of the Environment and Land Court Act, mandates the ELC to hear disputes relating to the environment, land use, planning, title, tenure and occupation including leases, tenancies, and contracts involving land. Thus, while the ELC has exclusive jurisdiction over matters specifically enumerated under Article 162 and the Environment and Land Court Act, questions of constitutional interpretation and enforcement of fundamental rights and freedoms remain within the original and unlimited jurisdiction of the High Court under Article 165.
39. On whether this Court is clothed with the appropriate jurisdiction to adjudicate over the petition, under section 13(2) of the Environment and Land Court Act, the Environment and Land Court (the ELC) has exclusive jurisdiction over the substratum of the grievance before this Court which stems directly from an expired lease, rent arrears and possessory rights over L.R. No. 4275/40 Riverside Drive.
40. In Suzanne Butler & 4 Others v Redhill Investments & Another (2017) eKLR the Court held that:-
“When faced with a controversy whether a particular case is a dispute about land (which should be litigated at the ELC) or not, the Courts utilize the Pre-dominant Purpose Test: In a transaction involving both a sale of land and other services or goods, jurisdiction lies at the ELC if the transaction is predominantly for land, but the High Court has jurisdiction if the transaction is predominantly for the provision of goods, construction, or works. The Court must first determine whether the pre-dominant purpose of the transaction is the sale of land or construction. Whether the High Court or the ELC has jurisdiction hinges on the predominant purpose of the transaction, that is, whether the contract primarily concerns the sale of land or, in this case, the construction of a townhouse. Ordinarily, the pleadings give the Court sufficient glimpse to examine the transaction to determine whether sale of land or other services was the predominant purpose of the contract. This test accords with what other Courts have done and therefore lends predictability to the issue."
41. In Paul Mwai & another v John Muiruri [2020] KEHC 4946 (KLR) the court emphasized that the High Court cannot usurp the jurisdiction of the ELC and held thus: -
“Notwithstanding the practice directions, section 13(2)(a) and (4) are clear that the Environment and Land Court shall not only hear and determine disputes relating to environmental planning and protection, trade, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources but that it shall also exercise appellate jurisdiction over decisions of subordinate courts or local tribunals relating to these same matters of which it is seized jurisdiction. For our present purposes, it is important to note that disputes over rents are such matters that fall within this court’s jurisdiction, irrespective of whether it is original or appellate.”
42. In the present petition, the Petitioners are asking this Court to determine the dispute between themselves and the Respondents which is essentially a dispute exclusively reserved for the ELC, thereby bypassing the specialized jurisdiction of the ELC simply by clothing a landlord-tenant dispute in the garb of a Constitutional Petition under Articles 23 and 165. Such matters properly fall within the specialized jurisdiction of the ELC and to entertain them under the guise of a constitutional petition would amount to this Court arrogating itself jurisdiction over a matter exclusively reserved for the ELC.
43. It is important to note that Article 165(5) (b) of the Constitution expressly bars the High Court from hearing and determining disputes which are exclusively reserved for the courts contemplated in Article 162(2) and these Courts are the Environment and Land Court and the Employment and Labour Relations Court.
44. In the end, I find and hold that as the dispute between the parties fall entirely within the jurisdiction of the ELC, this Court’s jurisdiction is ousted.
(b) Whether the Petition is competent under the Doctrine of Constitutional Avoidance.
45. Even assuming that the petition was not affected by the jurisdictional issue already determined above, the question is whether the doctrine of Constitutional avoidance applies to the circumstances of this case.
46. The doctrine of constitutional avoidance dictates that where a dispute can be effectively resolved under ordinary law, courts must refrain from converting it into a constitutional question. It is well established that where statutory appellate or review mechanisms exist to remedy a grievance from a subordinate court, a party must pursue those remedies rather than filing a constitutional petition. Mativo J in KKB v SCM & 5 others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR) (22 April 2022) (Ruling) held thus: -
“36. In summation, the doctrines of ripeness and constitutional avoidance shun to deal with a constitutional issue where there exists another legal course which can give the litigant the relief he seeks. In other words, a constitutional issue is not ripe for determination until the determination of the constitutional issue is the only course that can give the litigant the remedy he seeks. Both constitutional avoidance and ripeness avert the determination of the constitutional issues until it becomes very necessary to the extent that it is the only course available to assist the litigant‘s cause. The exceptions to
the application of the doctrine of constitutional avoidance are:
i. where the constitutional violation is so clear and of direct relevance to the matter,
ii. in the absence of an apparent alternative form of ordinary relief and
iii. where it is found that it would be a waste of effort to seek a non-constitutional resolution of the dispute,”
47. The Petitioners’ claim herein is basically a disagreement with a magistrate’s procedural ruling or pecuniary jurisdiction finding. This does not automatically constitute an administrative or constitutional violation under Article 47 or Article 50 . To proceed under Articles 23 and 165 would trivialize constitutional jurisdiction and contravene the principle that without jurisdiction, a court must down its tools.
48. In Gabriel Mutava Elizabeth Kwini & Mary Martha Masyuki v Managing Director, Kenya Ports Authority & another [2016] KECA 411 (KLR), the Court of Appeal emphasized that the Constitution should not be converted into a thoroughfare for ordinary litigation where standard legal processes apply. The Court held thus: -
“……The Constitution is not a general substitute for the normal procedures for invoking judicial control of administrative action. Where infringements of rights can found a claim under substantive law, the proper cause is to bring the claim under that and not under the Constitution.”
49. Similarly, Lord Diplock in the case of Harrikissoon V Atttorney General of Trinidad and Tobago [1980]AC 265 held: -
“The notion that wherever there is a failure by an organ of government or a public officer to comply with the law this necessarily entails the contravention of some human rights or fundamental freedoms guaranteed for individuals by...the constitution is fallacious. The right to apply to the High Court… for redress when any human right or fundamental freedom is or is likely to be contravened, is an important safeguard of those rights and freedoms; but its value will be diminished if it is allowed to be misused as a general substitute for the normal procedures for invoking judicial control of administrative action… the mere allegation that a human right of the applicant has been or is likely to be contravened is not itself sufficient to entitle the applicant to invoke the jurisdiction of the Court…if it is apparent that the allegation is frivolous, vexatious or abuse of the process of Court as being made solely for the purpose of avoiding the necessity of applying the normal way for appropriate judicial remedy for unlawful administrative action which involves no contravention of any human right or fundamental freedom.”
50. The petitioners herein are challenging the subordinate court’s decision which to my mind ought to be addressed on appeal or review. To turn routine disputes or disagreements with judicial decisions to constitutional litigation is a direction that this Court cannot countenance. The dispute over the filing fee calculations on the CTS platform and the magistrate’s order of transfer are matters properly addressable through an appeal or application in the specialized court, not a constitutional petition.
51. As Justice Mativo observed in Joyce Cherop Kaspandoy & 609 others v Kenya Power and Lighting Company [2019] KEHC 11902 (KLR):
“18. Abuse of court process creates a factual scenario where a party is pursuing the same matter by two-court process. In other words, a party by the two-court process is involved in some gamble; a game of chance to get the best in the judicial process. [Justice Niki Tobi JSC of Nigeria.]
19. It is settled law that a litigant has no right to purse paripasua two processes, which will have the same effect in two courts at the same time with a view of obtaining victory in one of the process or in both. Litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps. On the contrary, litigation is a contest by judicial process where the parties place on the table of justice their different position clearly, plainly and without tricks. In my humble view, the two processes are in law not available simultaneously. The pursuit of the two processes at the same time constitutes and amounts to abuse of court/legal process.
20. Thus, the multiplicity of actions on the same matter between the same parties even where there exist a right to bring the action is regarded as an abuse.The abuse lies in the multiplicity and manner of the exercise of the right rather than exercise of right per se. The abuse consists in the intention, purpose and aim of person exercising the right, to harass, irritate, and annoy the adversary and interface with the administration of justice. On this ground alone, this suit is hereby dismissed for being an abuse of court process.
52. The doctrine avoidance precludes the Court from invoking the Constitution to settle controversies that can conveniently be dealt with on any other legal basis other than the Constitution. Disputes that may appropriately be resolved on the basis of a statute or regulatory regime or other established legal principles should thus n
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IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTION AND HUMAN RIGHTS DIVISION
PETITION NO. E685 OF 2024
ROBERT WACHIRA KAMAU …………………………. 1 ST PETITIONER
ROCKEY AFRICA LIMITED …………………………… 2 ND PETITIONER
-VERSUS-
KENYA MEAT COMMISSION …………….…………. 1 ST RESPONDENT
HENRY MATALANGA T/A
AUCTIONEERS LIMITED ……...………………….… 2 ND RESPONDENT
JUDGMENT
1. This Petition dated 10 th December 2024 is a constitutional and administrative challenge regarding a jurisdictional dispute in a lower court tenancy case. The Petitioners Robert Wachira Kamau and Rockey Africa Limited seek the following reliefs: -
(a) A declaration that the Hon. Paul Rotich, Senior Principal Magistrate in making a finding on jurisdiction in his Ruling dated 4 th November 2024 acted Ultra vires his powers and thus unlawfully, in violation of Article 47 of the Constitution.
(b) An Order setting aside the decision of the Hon. Paul Rotich, Senior Principal Magistrate in his Ruling dated 4 th November 2024.
(c) An Order for stay of proceedings in Milimani CMCC 339 of 2019, and in the alternative; an Order calling for the record of proceedings in Milimani CMCC 339 of 2019 for further Orders as may be appropriate to ensure the fair administration of justice including but not limited an Order for withdrawal of the suit from the subordinate court and transfer of the same to the Honourable Court for trial and disposal.
(d) An injunction directed at the 1 st & 2 nd Respondents either by themselves, agents, servants, representative or any other person acting pursuant to their instructions be restrained from levying distress for rent or otherwise interfere with the Petitioners' quiet enjoyment of the suit property.
(e) A conservatory order preserving the Petitioners’ possession and quiet enjoyment of the suit property.
2. The Petition is premised on the facts outlined on its face and further supported by the affidavit sworn by the 1 st Petitioner as the Managing Director of Rockey Africa Limited, dated evenly with the Petition. The facts giving rise to the Petition are that the Petitioners leased property known as L.R. No. 4275/40 on Riverside Drive, Nairobi, from the 1 st Respondent Kenya Meat Commission. The 1 st Respondent then issued an eviction notice demanding Kshs. 4,700,000 in rent arrears. The Petitioners claim that the 1 st Respondent actually owes them Kshs. 12,800,000 for advance rent and authorized repairs.
3. The 1 st Petitioner Robert Wachira Kamau deposes that they originally filed suit CMCC 331 of 2019 in the Chief Magistrate's Court to secure interim injunctions to protect their peaceful occupancy of property L.R. No. 4275/40 on Riverside Drive, Nairobi. That although the lower court in a Ruling by Hon. D. W. Mburu (SPM) formally affirmed its pecuniary jurisdiction on 22 nd November 2019 by dismissing the Respondents’ objection, Hon. Paul Rotich issued a contradictory ruling on 4 th November 2024, finding that the court lacked jurisdiction and effectively dismissed the suit. The deponent asserts that the first Ruling by Hon. Mburu was never appealed or reviewed.
4. The deponent states that this 2024 ruling was improper, unlawful because the court was functus officio and ultra vires because the issue of jurisdiction was already settled and was not brought forward through a formal application for review. Additionally, it is pointed out that the ruling improperly relied on a counterclaim that lacked legal standing due to unpaid mandatory court filing fees.
5. It is averred that by unexpectedly discarding the suit and dismantling the protective interlocutory orders without due process, the magistrate violated the Petitioners’ rights to fair administrative action under Article 47 of the Constitution and exposed them to the immediate threat of eviction.
6. Consequently, the Petitioners invoke Articles 23 and 165 of the Constitution to urge the Court to exercise its supervisory authority over the subordinate court and to urgently grant the requested constitutional remedies. It is reiterated that the Petitioners initiated suit vide Milimani CMCC 339 of 2019 and received interim protection against eviction.
Response to the Petition
7. In response to the Petition, the 1 st Respondent filed a Replying Affidavit sworn by Anthony Ademba, the Chief Legal Officer of the 1 st Respondent (Kenya Meat Commission and dated 17 th December 2024 in which he deposes that the High Court lacks jurisdiction over the petition, as the petition arises from a decision made in Nairobi COMM. No. 331 of 2019, which concerns property L.R No. 4275/40, Riverside Drive, Nairobi.
8. The deponent states that the Petitioners have occupied the property for over five years since the expiry of a lease dated 1 st April 2007, without paying rent, relying on a now-lapsed court order.
9. The deponent further asserts that any complaints about the magistrate’s decision should be addressed to the Environment and Land Court, which has the appropriate jurisdiction. He further sets out the procedural history of the dispute between the parties hereto and states that on 27 th November 2024, the magistrate directed the Petitioners to file a supplementary affidavit and submissions within 14 days, but the Petitioners did not comply.
10. The Respondents accuse the Petitioners of acting in bad faith, noting that the petitioners were aware of the Respondents’ Application before the Environment and Land Court in ELC/MISC/E281/2024 before filing the current petition. The Respondents also contend that the Petitioners have repeatedly tried to delay proceedings and avoid paying rent, including filing a suit after lease expiry and resisting rent collection efforts; proposing out-of-court settlement to delay hearings, causing adjournments by claiming lack of service and failing to file required affidavits, prompting warnings from the court.
11. The Respondents urge the court to strike out the Petitioners’ Application for lack of jurisdiction and to award costs to the Respondents.
12. The Petitioners filed a further affidavit sworn on 20 th March, 2025 by Robert Wachira Kamau, the Director of Rockey Africa, opposing the arguments raised by the Respondents in their Replying Affidavit. They assert that the Court has proper jurisdiction to hear and determine the petition because the petition centers on fundamental human rights violations, constitutional breaches and procedural inefficiencies rather than mere property disputes.
13. While acknowledging that the Respondents hold legal ownership of the property (L.R. No. 4275/40 on Riverside Drive, Nairobi it is asserted that the Petitioners’ 35-year occupation was based on lawful grounds, as supported by an August 2019 ruling. It is emphasized that human rights and constitutional grievances fall outside the restrictive procedural scope of the Environment and Land Court, validating the choice to file the petition in the High Court.
14. Addressing prior court directives, the deponent expresses grievance over an allegedly unprecedented ruling made by Hon. Paul Rotich during a routine mention date. He avers that this ruling improperly relied on unproven figures from the Defendants’ counterclaim, for which no filing fees had even been paid.
15. That consequently, the Petitioners were unable to meet the set deadlines and now request an extension to properly resolve these issues. It is furthermore, stated that while they were aware of parallel proceedings in the Environment and Land Court, those proceedings do not negate the urgency of their constitutional Petition, which is brought in good faith to seek redress for distinct rights violations.
16. The deponent reiterates that the original Plaint and Notice of Motion filed in July 2019 stem from legitimate legal grounds and should be determined on their merits over mere technicalities. He notes that the Petitioners previously attempted an out-of-court settlement via a September 2022 letter to resolve the matter amicably but received no response from the Respondents. The Petitioners affirm their commitment to complying with all court directions and request that the matter proceeds expeditiously in the interest of justice.
17. The Petition was canvassed by written submissions.
The Petitioners’ Submissions
18. The Petitioners’ submissions are dated 20 th March 2025 in which Counsel submits that the Magistrate’s Court declined jurisdiction due to the high value of the counterclaim (Kshs. 30,000,000), but the Petitioners argue that this was based on unsubstantiated figures. Counsel for the Petitioners raise two main issues:
whether the High Court has supervisory jurisdiction over the matter, and whether the Magistrate erred in his ruling regarding the suit property.
19. The Petitioners rely on Articles 23 and 165 of the Constitution, which empower the High Court to enforce the Bill of Rights and address violations of fundamental rights. It is submitted that Article 50 guarantees the right to a fair hearing, which the Petitioners claim was compromised by the actions of the Respondents and the Magistrate.
20. Counsel for the petitioner cites the case of Protus Buliba Shikuku v Attorney General [2012] eKLR where it was held that Articles 23 and165 of the Constitution grant the High Court authority to address violations of fundamental rights, even if arising from lower court decisions; the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate & 4 others [2013] eKLR (para 12) which affirmed the High Court’s exclusive authority to handle cases involving violations of fundamental right; Alice Sisina v Land Registrar Kajiado & another [2015] eKLR which emphasized the High Court’s supervisory powers under Article 165(6) and (7) to set aside orders that do not meet standards of legality and propriety and Peters v Sunday Post Limited [1958] E.A. which established that appellate courts can review evidence but must exercise caution and respect the trial judge’s advantage in observing witnesses.
21. The petitioners argue that a thorough review of the evidence and the trial court's judgment and a re-evaluation of the facts be undertaken in order to have an independent determination of the petition. While acknowledging that appellate courts can review evidence, they emphasize the importance of the trial court’s findings, given the advantage of observing witnesses and urge this Court to exercise its jurisdiction cautiously, not merely to reach a different conclusion, but to decide whether the trial court’s findings should be upheld.
22. On the second issue, Counsel cites the case of John Teleyio Ole Sawoyo v David Omwenga Maobe [2013] eKLR which outlined the duty of a first appellate court to review both factual and legal aspects, while considering the trial court’s advantage in hearing witnesses. It is submitted that allowing the current decision to stand would prejudice the petitioners by disregarding the prior ruling of the SPM Hon. David Mburu, thereby favoring the respondent and undermining established legal principles. That albeit the Petitioners acknowledge the directions issued by Honourable Mr. Paul Rotich on 26 th November 2024, they remain dissatisfied with the magistrate’s issuance of a substantive ruling on a mention date intended only for procedural matters.
23. The case of Gulam Hussein Jivanji v Jivanji & Another [1929–30] KLR 44 is cited where it was held that a party aggrieved by a judgment must challenge the formal decree or order, not just specific passages in the judgment. The Petitioners submit that Hon. Rotich denied them adequate time to prepare their defense by unexpectedly introducing the matter and issuing directions shortly thereafter, contrary to the guarantees of Article 50(1) on fair hearing. They further argue that this decision undermines equality before the law under Article 27(1), as it compromises their right to a fair hearing and risks prejudicing their case.
24. Citing Francis Karioko Muruatetu & Another v Republic [2017] eKLR where the Supreme Court emphasized that the right to a fair trial is inalienable and non-derogable under Article 25(c) of the Constitution, Counsel for the Petitioners argue that substantive decisions were made during a mention date, which is improper and which led to injustice. They submit that the Magistrate’s actions denied them adequate time to prepare their defense, violating Article 50(1) . It is their further submission that the right to equality before the law under Article 27(1) and a fair hearing are inalienable and are at risk if the decision stands.
25. The Petitioners urge the Court to exercise its supervisory jurisdiction to correct procedural irregularities and uphold their fundamental rights, particularly the right to a fair hearing and due process.
The Respondents’ Submissions
26. The Respondent’s Submissions are dated 14 th July 2025. Counsel outlines the background of the matter and submits that the dispute centers on an expired lease over L.R No. 4275/40 Riverside Drive, Nairobi County, valued at over Kshs. 236,000,000/=. That despite the lease expiring on 1 st April 2019, the Petitioners refused to yield vacant possession and instead initiated Civil Suit No. 331 of 2019 in the Chief Magistrate's Court at Milimani to prevent the 1 st Respondent from exercising its proprietary rights.
27. That by April 2024, the 1 st Respondent had incurred rent arrears exceeding Kshs. 30,000,000/=. That following a consent between the parties, the Trial Court granted leave on 10 th June 2024 for the Respondents to file an Amended Defence and a Counterclaim. That on 4 th November 2024, the Trial Court held that it lacked pecuniary jurisdiction over the Amended Counterclaim and ordered the transfer of the case to the Environment and Land Court (ELC). Consequently, the Respondents filed a transfer application in ELC/MISC/E251/2024 before the ELC at Milimani.
28. It is submitted that despite knowing about the ELC proceedings, the Petitioners sought to review or set aside the transfer order before the Trial Court, thereby causing delay due to the concurrent pendency of the matter in the ELC. That the Petitioners subsequently filed the present Petition and Notice of Motion dated 10 th December 2024, seeking similar review reliefs.
29. Counsel for the Respondents isolate the following issues for determination: whether the present Petition dated 10 th December 2024 is competent before this Honourable Court;
whether this Honourable Court is the appropriate forum before which this dispute should be dispensed with; and
whether the Petitioners’ actions in relation to this dispute amount to an abuse of this Honourable Court’s process.
30. The Respondents submit through their Counsel that the Petition is incompetent and bad in law, asserting that the true grievance stems from dissatisfaction with a jurisdictional ruling rather than a genuine violation of constitutional rights or fair administrative action. They further submit that aggrieved parties must pursue appeals through the established statutory mechanisms rather than misusing constitutional Petitions, particularly when allegations like automated Case Tracking Systems filing fee undercharges do not constitute constitutional breaches.
31. Invoking the doctrine of Constitutional Avoidance, the Respondents cite Gabriel Mutava Elizabeth Kwini & Mary Martha Masyuki v Managing Director, Kenya Ports Authority & Kenya Ports Authority [2016] KECA 411 (KLR) , which they argue, warns against turning the Constitution into a "thoroughfare for resolution of every kind of common grievance" when a matter can be resolved without reaching constitutional issues.
32. They also rely on Japheth Ododa Origa v Vice Chancellor, University of Nairobi and 2 others [2018] KEHC 4861 (KLR), in which the Court is said to have affirmed that simple disagreements or disapprovals of public decisions should not automatically trigger constitutional claims unless there is a real infringement of fundamental rights.
33. Further, the Respondents contend that the High Court is the wrong forum. Under Article 162(2)(b) of the Constitution as read with Section 13(2) of the Environment and Land Court Act, for reasons that the ELC holds exclusive jurisdiction over land-related disputes. They rely on Pepe Limited v Kenya Railways Corporation & 3 others [2019] KEELC 4817 (KLR) , where the court is said to have emphasized that claims involving the use and occupation of land including commercial leases fall squarely under the ELC’s jurisdiction rather than the High Court’s, even if framed as constitutional petitions.
34. Finally, the Respondents submit that running parallel proceedings in multiple courts seeking the exact same remedies constitutes a clear abuse of the court process. Citing Joyce Cherop Kaspandoy & 609 others v Kenya Power and Lighting Company [2019] KEHC 11902 (KLR), the Respondents highlight that litigation is not a "game of chess" and pursuing two simultaneous processes to achieve a favorable outcome is impermissible in law. That the Petitioners’ attempt to seek the same review remedies in the High Court while the ELC matter remains pending demonstrates an intent to frustrate proceedings, rendering the Petition fatally defective ab initio and subject to dismissal with costs.
Analysis and Determination
35. Having evaluated the pleadings, affidavits and written submissions of both parties, the following issues arise for determination:
(a) Whether the High Court has jurisdiction to entertain this petition or whether the proper forum is the Environment and Land Court (ELC).
(b) Whether the Petition is competent under the Doctrine of Constitutional Avoidance.
(c) Whether the Petitioners’ actions constitute an abuse of the judicial process.
(a) Whether the High Court has jurisdiction to entertain this Petition or whether the proper forum is the Environment and Land Court (ELC).
36. Jurisdiction refers to the legal authority of a court to hear and determine a matter and it is the foundation upon which judicial power rests. This Court’s jurisdiction is expressly provided for under Article 165 of the Constitution , which empowers the High Court to hear questions relating to violations of rights and freedoms, as well as to interpret the Constitution.
37. The Supreme Court emphasized in Samuel Kamau Macharia v Kenya Commercial Bank & Others [2012] eKLR that jurisdiction flows from the Constitution, statute or both and that without jurisdiction a court of law cannot act. This principle on the importance of jurisdiction was enunciated in the locus classicus Owners of Motor Vessel “Lillian S” v. Caltex Oil (Kenya) Ltd (1989) KLR 1 where it was held thus:
“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.”
38. Article 162 (2) (b) of the Constitution establishes the Environment and Land Court (ELC) to hear and determine disputes relating to (b) the environment and the use and occupation of, and title to, land. Section 13(2) of the Environment and Land Court Act, mandates the ELC to hear disputes relating to the environment, land use, planning, title, tenure and occupation including leases, tenancies, and contracts involving land. Thus, while the ELC has exclusive jurisdiction over matters specifically enumerated under Article 162 and the Environment and Land Court Act, questions of constitutional interpretation and enforcement of fundamental rights and freedoms remain within the original and unlimited jurisdiction of the High Court under Article 165.
39. On whether this Court is clothed with the appropriate jurisdiction to adjudicate over the petition, under section 13(2) of the Environment and Land Court Act, the Environment and Land Court (the ELC) has exclusive jurisdiction over the substratum of the grievance before this Court which stems directly from an expired lease, rent arrears and possessory rights over L.R. No. 4275/40 Riverside Drive.
40. In Suzanne Butler & 4 Others v Redhill Investments & Another (2017) eKLR the Court held that:-
“When faced with a controversy whether a particular case is a dispute about land (which should be litigated at the ELC) or not, the Courts utilize the Pre-dominant Purpose Test: In a transaction involving both a sale of land and other services or goods, jurisdiction lies at the ELC if the transaction is predominantly for land, but the High Court has jurisdiction if the transaction is predominantly for the provision of goods, construction, or works. The Court must first determine whether the pre-dominant purpose of the transaction is the sale of land or construction. Whether the High Court or the ELC has jurisdiction hinges on the predominant purpose of the transaction, that is, whether the contract primarily concerns the sale of land or, in this case, the construction of a townhouse. Ordinarily, the pleadings give the Court sufficient glimpse to examine the transaction to determine whether sale of land or other services was the predominant purpose of the contract. This test accords with what other Courts have done and therefore lends predictability to the issue."
41. In Paul Mwai & another v John Muiruri [2020] KEHC 4946 (KLR) the court emphasized that the High Court cannot usurp the jurisdiction of the ELC and held thus: -
“Notwithstanding the practice directions, section 13(2)(a) and (4) are clear that the Environment and Land Court shall not only hear and determine disputes relating to environmental planning and protection, trade, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources but that it shall also exercise appellate jurisdiction over decisions of subordinate courts or local tribunals relating to these same matters of which it is seized jurisdiction. For our present purposes, it is important to note that disputes over rents are such matters that fall within this court’s jurisdiction, irrespective of whether it is original or appellate.”
42. In the present petition, the Petitioners are asking this Court to determine the dispute between themselves and the Respondents which is essentially a dispute exclusively reserved for the ELC, thereby bypassing the specialized jurisdiction of the ELC simply by clothing a landlord-tenant dispute in the garb of a Constitutional Petition under Articles 23 and 165. Such matters properly fall within the specialized jurisdiction of the ELC and to entertain them under the guise of a constitutional petition would amount to this Court arrogating itself jurisdiction over a matter exclusively reserved for the ELC.
43. It is important to note that Article 165(5) (b) of the Constitution expressly bars the High Court from hearing and determining disputes which are exclusively reserved for the courts contemplated in Article 162(2) and these Courts are the Environment and Land Court and the Employment and Labour Relations Court.
44. In the end, I find and hold that as the dispute between the parties fall entirely within the jurisdiction of the ELC, this Court’s jurisdiction is ousted.
(b) Whether the Petition is competent under the Doctrine of Constitutional Avoidance.
45. Even assuming that the petition was not affected by the jurisdictional issue already determined above, the question is whether the doctrine of Constitutional avoidance applies to the circumstances of this case.
46. The doctrine of constitutional avoidance dictates that where a dispute can be effectively resolved under ordinary law, courts must refrain from converting it into a constitutional question. It is well established that where statutory appellate or review mechanisms exist to remedy a grievance from a subordinate court, a party must pursue those remedies rather than filing a constitutional petition. Mativo J in KKB v SCM & 5 others (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR) (22 April 2022) (Ruling) held thus: -
“36. In summation, the doctrines of ripeness and constitutional avoidance shun to deal with a constitutional issue where there exists another legal course which can give the litigant the relief he seeks. In other words, a constitutional issue is not ripe for determination until the determination of the constitutional issue is the only course that can give the litigant the remedy he seeks. Both constitutional avoidance and ripeness avert the determination of the constitutional issues until it becomes very necessary to the extent that it is the only course available to assist the litigant‘s cause. The exceptions to
the application of the doctrine of constitutional avoidance are:
i. where the constitutional violation is so clear and of direct relevance to the matter,
ii. in the absence of an apparent alternative form of ordinary relief and
iii. where it is found that it would be a waste of effort to seek a non-constitutional resolution of the dispute,”
47. The Petitioners’ claim herein is basically a disagreement with a magistrate’s procedural ruling or pecuniary jurisdiction finding. This does not automatically constitute an administrative or constitutional violation under Article 47 or Article 50 . To proceed under Articles 23 and 165 would trivialize constitutional jurisdiction and contravene the principle that without jurisdiction, a court must down its tools.
48. In Gabriel Mutava Elizabeth Kwini & Mary Martha Masyuki v Managing Director, Kenya Ports Authority & another [2016] KECA 411 (KLR), the Court of Appeal emphasized that the Constitution should not be converted into a thoroughfare for ordinary litigation where standard legal processes apply. The Court held thus: -
“……The Constitution is not a general substitute for the normal procedures for invoking judicial control of administrative action. Where infringements of rights can found a claim under substantive law, the proper cause is to bring the claim under that and not under the Constitution.”
49. Similarly, Lord Diplock in the case of Harrikissoon V Atttorney General of Trinidad and Tobago [1980]AC 265 held: -
“The notion that wherever there is a failure by an organ of government or a public officer to comply with the law this necessarily entails the contravention of some human rights or fundamental freedoms guaranteed for individuals by...the constitution is fallacious. The right to apply to the High Court… for redress when any human right or fundamental freedom is or is likely to be contravened, is an important safeguard of those rights and freedoms; but its value will be diminished if it is allowed to be misused as a general substitute for the normal procedures for invoking judicial control of administrative action… the mere allegation that a human right of the applicant has been or is likely to be contravened is not itself sufficient to entitle the applicant to invoke the jurisdiction of the Court…if it is apparent that the allegation is frivolous, vexatious or abuse of the process of Court as being made solely for the purpose of avoiding the necessity of applying the normal way for appropriate judicial remedy for unlawful administrative action which involves no contravention of any human right or fundamental freedom.”
50. The petitioners herein are challenging the subordinate court’s decision which to my mind ought to be addressed on appeal or review. To turn routine disputes or disagreements with judicial decisions to constitutional litigation is a direction that this Court cannot countenance. The dispute over the filing fee calculations on the CTS platform and the magistrate’s order of transfer are matters properly addressable through an appeal or application in the specialized court, not a constitutional petition.
51. As Justice Mativo observed in Joyce Cherop Kaspandoy & 609 others v Kenya Power and Lighting Company [2019] KEHC 11902 (KLR):
“18. Abuse of court process creates a factual scenario where a party is pursuing the same matter by two-court process. In other words, a party by the two-court process is involved in some gamble; a game of chance to get the best in the judicial process. [Justice Niki Tobi JSC of Nigeria.]
19. It is settled law that a litigant has no right to purse paripasua two processes, which will have the same effect in two courts at the same time with a view of obtaining victory in one of the process or in both. Litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps. On the contrary, litigation is a contest by judicial process where the parties place on the table of justice their different position clearly, plainly and without tricks. In my humble view, the two processes are in law not available simultaneously. The pursuit of the two processes at the same time constitutes and amounts to abuse of court/legal process.
20. Thus, the multiplicity of actions on the same matter between the same parties even where there exist a right to bring the action is regarded as an abuse.The abuse lies in the multiplicity and manner of the exercise of the right rather than exercise of right per se. The abuse consists in the intention, purpose and aim of person exercising the right, to harass, irritate, and annoy the adversary and interface with the administration of justice. On this ground alone, this suit is hereby dismissed for being an abuse of court process.
52. The doctrine avoidance precludes the Court from invoking the Constitution to settle controversies that can conveniently be dealt with on any other legal basis other than the Constitution. Disputes that may appropriately be resolved on the basis of a statute or regulatory regime or other established legal principles should thus n
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