Njenga & another v National Government Constituencies Development Fund Board & 3 others (Environment & Land Petition E012 of 2024) [2025] KEELC 1488 (KLR)
The bottom line
#Landowners who skipped the NG-CDF Board's statutory dispute process lost their constitutional challenge, with costs awarded against them.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection raised pure points of law
The court was satisfied the objection raised pure points of law since it went to jurisdiction
Applying Mukisa Biscuits and successor authorities, the court held that the grounds challenging jurisdiction, constitutional avoidance and exhaustion did not require ascertainment of facts and therefore qualified as preliminary objections properly so called.
Whether the Petitioners were required to exhaust the dispute resolution mechanism under Section 56 of the NG-CDF Act
Yes; the Petitioners were obligated to first submit the dispute to the NG-CDF Board before filing the Petition
The dispute concerned use, title and occupation of land allegedly taken for construction of a police station. Section 56 requires civil complaints to be forwarded to the Board in the first instance. Relying on the exhaustion doctrine and its affirmation by the Supreme Court in Albert Chaurembo Mumba, the court found the Petitioners ignored the statutory mechanism, amounting to an abuse of process.
Whether the court had jurisdiction over the Petition
The court held it lacked jurisdiction to grant the prayers sought given the unexhausted statutory mechanism
Although the ELC has jurisdiction over land disputes under Article 162(2)(b) and Section 13(2) of the ELC Act, the doctrine of judicial restraint/exhaustion required the Petitioners to first submit the dispute to the Board. The court noted the Petitioners could still approach the Board and return to court if aggrieved.
Who bears the costs of the preliminary objection
The 1st and 2nd Respondents, as successful parties, were awarded costs
Applying Section 27(1) of the Civil Procedure Act that costs follow the event, the court awarded costs to the successful Respondents for the objection, application and Petition.
Legal principles established
#- Where an Act of Parliament provides for a clear dispute resolution mechanism, parties must exhaust it before approaching the court
- A court must exercise restraint and defer to statutory dispute resolution bodies established by legislation for specific disputes
- A preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct
Court orders
#- 1.That the Preliminary Objection dated 3rd July, 2024 be and is found to have merit and is hereby allowed
- 2.That the Notice of Motion application and the Petition dated 27th May, 2024 are both dismissed for lack of jurisdiction
- 3.That the 1st and 2nd Respondents shall have the costs of the Notice of Preliminary objection dated 3rd July, 2024, the Notice of Motion application and Petition dated 27th May, 2024
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13(2) of the Environment and Land Court Act, No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njenga & another v National Government Constituencies Development Fund Board & 3 others (Environment & Land Petition E012 of 2024) [2025] KEELC 1488 (KLR)", Case Analysis (2025). ELC Petition (Mombasa) — Petition and Notice of Motion dated 27th May, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1488/eng@2025-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.