Kenya National Highway Authority v Kamlesh Pandya & 1 other
The bottom line
#Kenya's Court of Appeal ruled that land ownership disputes belong in the Environment and Land Court, even when filed as constitutional petitions in the High Court.
What this practically means
#Executive summary
#Key legal issues
#Whether jurisdiction can be raised for the first time on appeal
Yes. Jurisdiction is a fundamental point of law that may be raised at any stage of the proceedings and by any party, even for the first time on appeal.
Relying on the Supreme Court's decision in Dina Management Limited v County Government of Mombasa, the Court held that because jurisdiction is a threshold and fundamental issue, a party is not estopped from raising it even at the appellate stage, and a court must always satisfy itself that it has jurisdiction regardless of whether the issue appears in the pleadings.
Whether the High Court had jurisdiction over a petition whose dominant substance was title to, and compulsory acquisition of, land
No. The petition was concerned first and foremost with title to land and land acquisition, matters reserved to the Environment and Land Court under Article 162(2)(b) and Section 13 of the Environment and Land Court Act.
Although the respondent framed the petition as enforcement of Article 40 property rights, the declarations sought asked the court to declare who the rightful owner of the suit land was and whether compulsory acquisition was justified. Under Article 165(5)(b) the High Court is barred from matters falling within the jurisdiction of courts contemplated under Article 162(2), which include disputes relating to environment and the use and occupation of, and title to, land.
Whether the constitutional framing of a land dispute ousts the ELC's exclusive jurisdiction
No. A party cannot confer jurisdiction on the High Court by dressing a title and land-ownership dispute as a constitutional rights petition.
The Court was not convinced that the predominant purpose of the petition was solely to enforce Article 40 rights; the proposed issues for determination and the declarations sought showed the real dispute concerned validity of title, ownership, use and occupation of land and compulsory acquisition, all within the ELC's statutory mandate under Section 13 of the Environment and Land Court Act.
Legal principles established
#- The issue of jurisdiction is fundamental, being a point of law, and can be raised at any stage of the case and by any party, including for the first time on appeal.
- A court is bound to always satisfy itself whether or not it has jurisdiction to hear and determine a matter before it, even where jurisdiction is not raised in the pleadings.
- The High Court has no jurisdiction under Article 165(5)(b) of the Constitution to determine disputes relating to the use and occupation of, and title to, land; such disputes are the exclusive preserve of the Environment and Land Court.
Court orders
#- 1.The appellant's appeal is allowed
- 2.The judgment of the High Court (E. Ogola, J.) dated 4th February 2021 is set aside together with all the consequential orders
- 3.The Petition (Mombasa High Court Petition No. 13 of 2015) is remitted to the Environment and Land Court for hearing and determination to its logical conclusion
- 4.Orders issued on 8th March 2018 maintaining status quo are not interfered with unless set aside by the Environment and Land Court when re-hearing the matter
- 5.The Deputy Registrar of the Court to send the file to the Mombasa Environment and Land Court within 21 days and inform the parties accordingly
- 6.The respondent shall meet the costs of the appeal
- On appeal from
- High Court of Kenya at Mombasa, Constitutional and Human Rights Division
- Constitutional Petition No. 13 of 2015
- Jurisdiction invoked
- First appeal to the Court of Appeal; jurisdictional dispute determined under Article 165(5) and Article 162(2) of the Constitution read with Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya National Highways Authority v Mandev Ltd & another (Environment and Land Appeal E050 of 2025) [2026] KEELC 3949 (KLR)[2026] KEELC 3949 (KLR)30 Jun 2026
Cite this brief
#Cite this brief
Caselaw, "Kenya National Highway Authority v Kamlesh Pandya & 1 other", Case Analysis (2025). Court of Appeal at Mombasa, first appeal against Mombasa High Court Constitutional Petition No. 13 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/287/eng@2025-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.