Ali & 2 others v Administration & another (Environment and Land Petition E005 of 2025) [2026] KEELC 4154 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a Wajir petition because it effectively tried to overturn an earlier High Court judgment.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the objection as raised is a proper preliminary objection in law
- 2.whether this Court has jurisdiction to hear and determine the petition and the Notice of Motion both dated June 20, 2025
Key legal issues
#Whether the objection was a proper preliminary objection in law
Yes - the objection raised pure points of law (jurisdictional bar and prior determination) ascertainable from the pleadings and record without ascertaining contested facts
The court applied the Mukisa Biscuit test as restated by the Supreme Court in Kibos Distillers: a preliminary objection must be a point of law pleaded or arising by clear implication from the pleadings, capable of disposing of the suit. The complaint here raised a jurisdictional bar and a plea of prior determination, both amenable to threshold determination. The petitioners themselves relied on the earlier Garissa proceedings, confirming the point arose on the record.
Whether the ELC has jurisdiction over the petition and motion
No - the reliefs sought would review, suspend or neutralize steps flowing from the judgment of a coordinate superior court in Garissa HCCHRPET E019 of 2024; in that respect the Court lacks jurisdiction
While the ELC generally may entertain disputes centred on community land, environment and associated rights, and is not barred merely because rights language is used, the present petition in substance invited the Court to grant relief inconsistent with the April 30, 2025 judgment of Onyiego J in HCCHRPET E019 of 2024, which had condemned the lack of public participation. One superior court cannot supervise or sit in appeal over another; proper avenues are the issuing court or the appellate forum. The suit was also arguably res judicata and an abuse of process.
Legal principles established
#- A superior court of coordinate status cannot grant relief inconsistent with, or destructive of, the legal effect of another superior court's judgment; challenges to such a judgment must go to the issuing court or the appellate forum
- The ELC is not precluded from deciding constitutional questions where they lie at the centre of a land and environment dispute, but cannot sit as if it were the High Court where the dispute has little to do with its mandate
- Jurisdiction flows from the Constitution or legislation and cannot be conferred by craft of pleadings
Court orders
#- 1.The 2nd Respondent's Notice of Preliminary Objection dated July 4, 2025, is hereby upheld.
- 2.The Petition dated June 20, 2025, and the Notice of Motion application of the same date are hereby struck out.
- 3.The proposed interested parties' Notice of Motion application dated July 8, 2025, for joinder is marked as spent, and the file is closed.
- 4.Each party shall bear its own costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act
Relief refused
#Interim orders in the Notice of Motion dated June 20, 2025 (suspension of Gazette Notice No. 15341 and halting of public participation)
The Court lacked jurisdiction because the reliefs would defeat the legal effect of the judgment of a coordinate superior court in Garissa HCCHRPET E019 of 2024; the entire petition and motion were struck out
Joinder of proposed interested parties
Overtaken by the finding that the Court lacks jurisdiction over the petition and motion
Costs
Each party shall bear its own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The constitutional design does not permit one superior court to supervise another. Nor can a court of coordinate status sit on appeal over the decision of another such court.
I am therefore not persuaded that I should determine this objection by making a broad pronouncement that the Environment and Land Court lacks jurisdiction in every matter where fundamental-rights language is used. I do not so hold.
The Petition dated June 20, 2025, and the Notice of Motion application of the same date are hereby struck out.
The proposed interested parties' Notice of Motion application dated July 8, 2025, for joinder is marked as spent, and the file is closed.
Each party shall bear its own costs.
In the dicta of Owners of Motor Vessel Lillian "S" v Caltex, when a court finds that it lacks jurisdiction, it must lay down its tools.
Issues in the judgment
#Internal date inconsistency - the court is stated to have directed an inter partes hearing for a date a year after the filing
Citation year anomaly - Republic v Karisa Chengo cited as [2007] whereas the decision is widely reported as 2017
Judgment date (July 7, 2026) precedes proceedings recorded as occurring after that date, including mentions on February 24, 2026 and submissions filed November 25, 2025, while interim orders are recorded as granted June 25, 2025 - chronology contains internal inconsistencies
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ali & 2 others v Administration & another (Environment and Land Petition E005 of 2025) [2026] KEELC 4154 (KLR)", Case Analysis (2026). Not stated in the judgment (Garissa ELC Petition dated June 20, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4154/eng@2026-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.