Njiru Micheni Nthiga (Suing as a legal representative and Administrator of the Estate of the Deceased Leonard R.I. Nthiga) v Governor, Tharaka Nithi County Government & 5 others [2019] KEELC 919 (KLR)

Section 7 of the Magistrates' Courts Act merely confers pecuniary limits on the various cadres of magistracy; it nowhere ousts the jurisdiction of the ELC. Article 162 grants the ELC equality of status with the High Court, which enjoys unlimited original jurisdiction in civil matters. Section 13(1) of the ELC Act gives the court original and appellate jurisdiction over all land and environment disputes under Article 162(2)(b). The court also noted it may transfer a suit to a subordinate court under section 18 of the Civil Procedure Act where necessary.

Applying the classic definition in Mukisa Biscuits, a preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded by the other side are correct. Grounds 3, 4 and 5, which alleged the plaintiff built on a road reserve without approvals and could not establish a prima facie case, required ascertainment of facts and merits. Ground 6 was nebulous and raised issues needing canvassing in the main suit.

The court directed parties to address whether the 3rd defendant was properly sued. The 3rd defendant argued no specific allegations were levelled against him, the constitutional duty lies with the state, and orders could not vest against him. The plaintiff opposed, citing particulars of his conduct including holding a baraza and directing marking of the suit property for demolition. The ruling's final orders, however, dealt only with the preliminary objection on jurisdiction, and no express order on the 3rd defendant's removal appears in the disposition.