Nirestein v Director of Public Prosecution & 5 others (Environment & Land Petition E009 of 2024) [2025] KEELC 2870 (KLR)

The court examined the prayers in the Petition and found that apart from one prayer touching on the right to property, all prayers sought declarations on the propriety of criminal charges, certiorari to quash charge sheets, and prohibitions against prosecution. Such matters fall under the exclusive jurisdiction of the High Court under Articles 165(3)(b), 165(6) and (7) of the Constitution, not within Section 13(2) of the ELC Act.

The Petitioner argued the Petition was multifaceted, touching land title, occupation and use, hence a hybrid case within the ELC. The court held that on reading the Petition and prayers, the dispute was not over title or use of the suit property but arose from a misunderstanding with the 6th Respondent leading to criminal charges, placing it outside the ELC Act.

Guided by Equity Bank Ltd v Bruce Mutie Mutuku and Abraham Mwangi Wamigwi, the court held that a suit filed in a court without jurisdiction is a nullity and cannot be transferred or sanctified. Nothing exists to transfer, so the Petition was a candidate for striking out rather than referral.

Applying Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd and Quick Enterprises Ltd v Kenya Railways Corporation, the court found that the challenge to jurisdiction raised pure points of law determinable without ascertainment of facts from outside the pleadings, hence properly a preliminary objection.