Luka v Tunai & 6 others; Mara Triangle National Reserve & another (Interested Parties) (Petition E008(7) of 2025) [2025] KEELC 8691 (KLR)

2nd Respondents is illegal, null and void due to among other grounds violating the provisions of the Constitution. 2. Simultaneously, the Petitioner filed a Notice of Motion Application under certificate of urgency even dated and sought for various injunctive orders pending the hearing and determination of the Petition. Further, he sought for an order that the court do direct the District Land Registrar and Surveyor to visit Mara Triangle Game Reserve and furnish the court with comprehensive reports detailing the acreage on the ground, copies of title deeds/ lease certificates, searches and green cards of the Reserve including the registered subdivision of land known as LR 212713/1. 3. The Petitioner also sought for an order directed to 5th and 6th Respondents to forthwith carry out their constitutional and statutory mandate and in particular investigate the circumstances under which approximately 1000 acres of land within Mara Triangle was illegally alienated and registered in the name of Pinecrest holdings Limited, and further investigate the culpability of the 1st Respondent as the former Governor of Narok County Government in the illegal alienation of the said public land to private entities, among other prayers. 4. The Petition and Application are opposed by the Respondents herein. The 2nd Respondent filed it’s Replying Afidavit which was sworn by Shadrack Kasy Seiyo, the Director of the 2nd Respondent, who denied all the allegations made by the Petitioner herein, and also averred that the facts stated by the Petitioner are false and misleading. It was his averments that the 2nd Respondent leased the suit property from the 3rd Respondent; the County Government of Narok, and the said lease was properly registered by the 4th Respondent. 5. He denied that the 2nd Respondent acquired the said lease unlawfully or illegally, and the said land being a public property is vested and held by the 3rd Respondent which also manages the Game Reserve. Therefore, the land in question cannot be disposed of or otherwise used except in accordance with the terms of the Act of Parliament specifying the nature and terms of its disposal or use. 6. He further averred that he has been advised by his advocates on record that the 3rd Respondent has developed a Management Plan for said area, which regulates the management of the Land, it’s use and disposal. Further, that the lease in issue was duly registered under the provisions of Section 43(2), of the Land Act, and therefore, the 2nd Respondent acquired land rights as the proprietor of the lease, and the said land rights are protected under Sections 24 and 25 of the Land Registration Act, and Article 40 of the Constitution. 7. The deponent also swore a Replying Afidavit in opposition to the Notice of Motion Application, which was sworn on 9th May 2025. He annexed the lease agreement between Pinecrest Holdings and Narok County Government dated 25th November 2019. 8. The 1st Respondent opposed the Petition and Application through a Notice of Preliminary Objection dated 19th May 2025, wherein he challenged the jurisdiction of this court on the following grounds; i. The court lacks jurisdiction to entertain the Petition and Notice of Motion Application dated 11th April 2025 as no proper constitutional issues arise for determination; ii. By operations of Article 79 and 80 of the Constitution as read with Section 4(2) of the Leadership and Integrity Act No 19 of 2012, the court is divested of jurisdiction to venture into investigation of integrity issues alleged against the 1st Respondent. The sole mandate of such investigations is vested on the Ethics and ant-corruption commission; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8691/eng@2025-12-11 2

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iii. Pursuant to Articles 243, 244 and 247 of the Constitution as read with Sections 28 and 35 of the National Police Service Act, this court lacks jurisdiction to rove into investigation of allegations of purported criminal ofienses supposedly perpetrated by the 1st to 4th Respondents herein as such mandate is solely vested on the National Police Service and in particular Director of Criminal investigations); iv. That this court does not have supervisory jurisdiction over agencies of criminal justice system; v. That the Petition and the Notice of Motion Application dated 11th April 2025, are otherwise an abuse of the Court mandate as circumscribed in article 162(2)(b), of the Constitution as read with section 13 of the ELC Act. 9. The 1st Respondent urged the court to dismiss the Petition and the Notice of Motion Application with costs in limine. 10. On 20th May 2025, the court directed that since the Preliminary Objection challenges the jurisdiction of this court, the same should be heard first, and be canvassed through written submissions. 11. In compliance thereto, the parties through their respective advocates and Petitioner in person filed and exchanged their written submissions. Kemboy Law Advocates for the 1st Respondent filed their submissions dated 24th June 2025, and urged the court to allow the Preliminary Objection as filed. 12. The 1st Respondent relied on the case of Mukisa Biscuits Manufacturing co Ltd vs West end distributors (1969)EA 696, to define a Preliminary Objection. He also relied on the case of Dismas Wambola vs Cabinet Secretary Treasury &5 Others(2017) eklr, where the court held that a Preliminary Objection may only be raised on a pure point of law. 13. It was the 1st Respondent’s submissions that it’s objection stems from the pleadings filed by the Petitioner herein and the said Preliminary Objection is well grounded. 14. On the jurisdiction, the 1st Respondent relied on the Supreme Court decision in the case of Mary Wambui Munene vs Peter Gichuki Kingara & 6 others(2014) eklr, where the court stated that jurisdiction is a pure point of law, and should be resolved on priority basis. He also relied on the classicus case of Owners of Motor Vessel Lillian S vs Caltex oil (Kenya) Ltd(1989)klr, where the court held: “ …. Jurisidiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 15. It was his submissions that the jurisdiction of this court is set out in Article 162(2)(b) of the Constitution and Section 13 of Environment and Land Court Act, and in exercise of this jurisdiction, the court is guided by the principles set out in Section 18 of Environment and Land Court Act and the principles of judicial authority under Article 159 of the Constitution. 16. Further, it was submitted that the jurisdiction of this court is derived from the law, as was held by the Supreme Court in the case of Samuel Kamau Macharia & Another vs Kenya Commercial Bank and 2 others, Application no. 2 of 2011. 17. He also submitted that a party seeking constitutional reliefs on the alleged breach of constitutional rights and freedoms is required to comply with Articles 20, 21, 22, 23, 258, 259 and 260 of the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8691/eng@2025-12-11 3

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Constitution as read with Rules 4, 5, 8, 9, 10, 11 & 14 of the Mutunga Rules, by disclosing the facts relied upon rights violated, nature of injury caused, capacity the Petition is filed and the reliefs sought. 18. It was his submissions that the jurisdiction of this court is invoked only when a Petition fully complies with the above Articles of the Constitution and the Mutunga Rules, and Section 13 of ELC Act only to the extent the Petitioner seek redress of a denial, violation or infringement of, or threat to rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution. 19. The court was asked to reject the instant Petition which fails to meet the criteria for a Constitutional Petition. Reliance was sought in the cases of Anarita Karimi Njeru vs R (1979)klr; Mumo Matemu vs Trusted Society of Human Rights Alliance (2013)eklr, Communication Commission of Kenya & 5 others vs Royal Media Services Ltd & Others (2014)eklr, where the court held; “ Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Annarita Karimi Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.” 20. He submitted that the instant Petition fails to meet the threshold for a Constitution Petition, as the jurisdiction of Environment and Land Court to hear and address constitutional disputes does not extend to hearing and determining criminal matters and others matters concerning violation of Leadership and integrity Act. 21. Further, that the allegations made by the Petitioner are a raft of criminal complaints, which are allegedly corruption in nature, and he even alleged that he has complained to Ethics and Ant-Corruption Commission (EACC), and DCI, who are mandated to investigate such complaints but not this court. 22. The Petitioner is asking the Court to look into the conduct of 1st Respondent while he was in ofice as a Governor of Narok County and ascertain whether there was abuse of ofice, with respect to lease granted to 2nd Respondent by the 3rd Respondent, and that falls outside the mandate of this court. 23. The 1st Respondent relied on various cases being William Kabogo Gitau vs Ferdinand Ndungu Waititu(2016)eklr, which discussed the relevance of Leadership and Integrity Act in enforcing Chapter Six as follows; “ 51. 24. The Leadership and Integrity Act specifically empowers the Ethics and Anti-Corruption Commission the role to oversee the implementation and enforcement thereof. It is thus incumbent that any person, who feels that the Act has been contravened, ought to move the relevant bodies charged with the mandate under the Act.” Reliance was also sought in the case of Awino vs Macharia; Ethics and Ant-corruption commission (Interested party) Petition No. E330 of 2023[2024] Judgment, and submitted that the legal framework creates institutions dedicated to upholding the interests of public oficers and also defines procedure for addressing individuals who fails to meet the standards. It was the 1st Respondent submissions that https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8691/eng@2025-12-11 4

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this court does not possesses the requisite jurisdiction to investigate integrity issues alleged against the 1st Respondent. 25. Further reliance was sought in the case of Michael Wichira Nderitu & others vs Mary Wambui Munene aka Mary Wambui and 4 others (2013)eklr; Pevan East Africa Ltd vs Chairman ,Betting Control & Licencing Board & 7 Others (2018) KECA 332(KLR);,Jemima vs Ngetich & 6 others ; Ethics and Ant-corruption commission ( Interested party) E205 of 2024)(2025) KEHC 3444(KLR). 26. Further, it was submitted that the Petition did not exhaust all the available avenues for dealing with the allegations he has made against the 1st Respondent because he filed this Petition two weeks after writing to 5th and 6th Respondents. Reliance was sought in the case of William Odhiambo Ramogi & 3 others vs Attorney General & 4 Others; Muslims for Human Rights & 2 others (Interested parties) (2020) KEHC 10266(klr); Vincent Mwanthi Kickofi vs Edward Sigei & others (2021)eklr. 27. The 1st Respondent urged the court to down its tools and dismiss the instant petition by allowing the Preliminary Objection, since even if the 5th Respondent was to find the Petitioner’s allegations valid, recourse would not be to this court, but criminal justice system, which has mandate to hear and determine such issues. Reliance was sought in the case of R vs Chengo & 2 others (Petition 5 of 2015) (2017)KESC 15(KLR). 28. Ultimately, the 1st Respondent submitted that the court does not have jurisdiction to hear and determine the issues raised in this Petition. He urged the court to uphold the Preliminary Objection and dismiss this matter in limine. 29. The 2nd Respondent filed it’s submissions through Wainaina Ireri Advocates LLP dated 29th July 2025, and submitted in support of the Preliminary Objection. The 2nd Respondent raised two issues being; 30. i. Whether the court has jurisdiction to entertain the Petition and application herein; ii. Whether the Petition ofiends the doctrines of exhaustion as it relates to purported criminal ofienses. On the first issue, the 2nd Respondent relied on the case of Donald vs National Assembly of Kenya (constitutional Petition E004 of 2023(2024) KEHC(175(KLR); Hakizimana Abdoul Abdulkarim vs Arrow Motors (EA) Ltd & Another (2017) KEHC 9674(KLR); which isolated matters which amount to constitutional issues within the jurisdiction of the court, wherein the court held; “ A constitutional question is an issue whose resolutions requires the interpretation of a constitution rather than that of a statute.” 31. It was its submissions that the matter herein requires an interpretation of the Environment and Land Act, and not the Constitution as conceded by the Petitioner in his submissions where he seeks reliefs under Section 13(7) of ELC Act. It further submitted that the Petitioner has merely cited the alleged violations of the Constitution and has disguised them as issues requiring constitutional interpretation by the court. 32. It was its further submissions that the Petition does not challenge the constitutionality of the provisions within an Act of Parliament and neither does it challenge the interpretation of the legislation nor the application of the legislation and as such falls beyond the ambit of constitutional petition. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8691/eng@2025-12-11 5

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33. Reliance was sought in the case of Anarita Karimi Njeru vs Republic (1979)eklr, cited with approval in the case of Kiragu vs CHuka University (Const. petition E001 of 2023(2024), where the court held; “ We would however, again stress that if a person in seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important that (if only to ensure that justice is done to his case) that he should set out with reasonable degree of precision that of which he complains, the provision said to be infringed and the manner in which they are alleged to be infringed.” 34. Further, it was submitted that the Petitioner has failed to plead with precision as to how the leasing of the suit property to the 2nd Respondent has posed irreversible environmental degradation contrary to the provisions of Articles 10, 42, 70 and 232 of the Constitution, and as such does not give the 2nd Respondent proper Notice on the nature of the claims against it. 35. It was also submitted that the Petitioner is challenging the validity of the 2nd Respondent’s Lease over LR 212713/1, and the mode of acquisition of the said lease under the guise of constitutional Petition. That the Petitioner has claimed that the 2nd Respondent illegally acquired the said property, and such challenge does not raise any constitutional issues for determination 36. Reliance was sought in the case of CNM VS WMG alias HNC, which was cited with approval in the case of KKB vs SC & 5 others( Constitutional Petition E014 of 2020(2022) KEHC 289(KLR), wherein the Petitioner filed a constitutional Petition instead of defamation suit. Further Reliance was sought in the case of Recreation Commission vs Sagittarius Wrestling Club and another where the court held;“ Courts will not normally consider a constitutional question unless the existence of a remedy depends upon it, if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a court will usually decline to determine whether there has been, in addition, a breach of the Declaration of Rights.” 37. The 2nd Respondent argued that the remedy for the issues raised by the Petitioner can adequately be found under Section 13(7) of the Environment and Land Court Act, and under the doctrine of constitutional avoidance, as the issues raised in the Petition do not qualify as constitutional issues for determination by this court. 38. On whether the Petition ofiends the doctrine of exhaustion, it was submitted that the Petition has raised a raft of criminal allegations against the 1st to 4th Respondents and he also did forward to the 5th Respondent a complaint for investigation on the alleged fraudulent acts of the Respondents. The matter herein falls within the purview of a Constitutional body/ies and the court has no jurisdiction to determine the said issues. Reliance was sought in the case of William Kabogo vs Ferdinand Ndungu WAititu( supra) 39. Further Reliance was sought in the case of Speaker of National Assembly vs James NJenga Karume (1992) eklr, which cited with approval in the case of Robert Khamala Situma & 8 others vs Acting clerk of Nairobi City County Assembly (2022) eklr, where the court held; “ …. In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8691/eng@2025-12-11 6

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40. Further Reliance was sought in the case of Martin Kabubii Mwangi vs County Government of Laikipia(2019)eklr, where the court held; “ The exhaustion principle enunciated in precedents such as the case of Secretary, County Public Service & Another v Hulbhai Gedi Abdille (supra) does not permit an election as to the parts of a statute that one should rely on. Put another way, it removes discretion on the part of a litigant from choosing whether to follow the provision or not. In this case the suit was filed before the exhaustion of the remedy under the law, namely the provisions of Section 77 of the County Governments Act. The claimant ought to have appealed against his removal to the Public Service Commission before moving the court. The suit did not fall in the category of suits that can be entertained by the court. As he did not appeal as provided for in law, the suit is a non-starter and is accordingly struck out with no order as to costs.” 41. Therefore, the 2nd Respondent submitted that this court is precluded from exercising jurisdiction over the instant Petition by virtue of the doctrine of ripeness, which prohibit a party from approaching a court prematurely as was held in the case of Wanjiru Gikonyo & 2others vs National Assembly of Kenya & others 42. The 2nd Respondent argued that the court lacks jurisdiction to hear and determine the present Petition since the matter complained of is still pending investigation before the 5th Respondent, and as such is not ripe for determination by this court. It urged the court to find that the Petitioner failed to exhaust administrative actions available to him before resorting to seek redress in a constitutional Petition, and thus this Petition should be dismissed and the Preliminary Objection upheld. 43. The Petitioner opposed the Preliminary Objection via his written submissions dated 12th June 2025, and the supplementary submissions dated 2nd July 2025. 44. In his initial submissions, the Petitioner set out two issues for determination being; i. Whether the court has the requisite jurisdiction to hear and determine the petition the application; ii. Whether the 1st Respondent preliminary objection is merited. 45. On the 1st issue, the Petitioner relied on the case of Owners of Motor Vessel Lillian(supra) and Article 162(2)(b) of the Constitution, and Section 13 of Environment and Land Court Act. He submitted that the Petition is premised on the infringement of constitutional rights by the 1st, 2nd and 3 Respondents herein in relation to land reference No. LR 212713/1 Mara Triangle Game Reserve the suit property, and which rights are infringed to the detriment of the people of Narok County, and the wide public in the Republic of Kenya. 46. It was the Petitioner’s further submissions that the court is clothed with jurisdiction over the subject matter, which relates to land, which is a public land, and is a Public interest case/litigation. He relied on Articles 10(2)a, b, 35, 40, 42 47, 62(4), 63, 73 and 75 of the Constitution which provisions echo the standard of integrity, transparency and accountability that person’s holding state and public ofices ought to demonstrate, as those positions are held in trust for the people of Kenya. 47. Further, he submitted that he is only exercising his right to public litigation in the instant Petition which is brought on behalf of the people of Narok County, and for the wider public good, and as concerned citizen who sees the importance of protecting the biodiversity and preventing wasting of public land, which is held in trust for the people of Narok County. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8691/eng@2025-12-11 7

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48. The Petitioner relied on the case of Trusted Society of Human Rights Aliance vs Attorney General & 2 others; Matemu (Interested Party); with Kenya Human Rights Commission & another (Amicus Curie) (Petition 229 of 2012) [2012] KEHC 2480 (KLR) (Constitutional and Human Rights 49. He argued that the prayers and orders sought are well within the jurisdiction of this court, and he urged the court to dismiss the instant preliminary objection. 50. On whether the 1st Respondent Preliminary Objection is merited, the Petitioner relied on the case of Rebecca Chumo vs Christine Cheptoo Chumo (2021)eklr, where the court adopted the holding in Mukisa Biscuits Manufacturing Ltd vs West End Distributors (1969)EA 696 51. He also relied on the Supreme Court’s decision in the case of Hassan Ali Joho & another vs Suleiman Said Shabal & 2 Others SCK Petition No.10 of 2013 [2014]eklr where the court held; “ A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary Point may dispose of the suit.” 52. The Petitioner argued that a Preliminary Objection should only settle a matter in a crisp point of law in undisputed facts which would lead to one conclusion that the facts are incompatible with the point of law. It was his further argument that the instant Preliminary Objection is unmerited, unwarranted, gross abuse and violation of the court process and should be dismissed with costs. 53. In his further submissions, the Petitioner argued that he has complied with the procedural and substantive requirements for constitutional litigation as the Petition clearly identifies the parties involved, the factual background upon which the claim is premised, the specified nature and extent of the injury or harm sufiered, and set out the constitutional and legal issues for determination. He relied on the case of Murugi vs Attorney General & 2 others ELC Pet No. E007of 2023(2024)KEELC 4343(KLR)(22rd May 2024) Judgment. 54. The Petitioner also relied on the case of Francis Atanasio Kithure vs County Government of Meru; Ethics & Anti Corruption Commission(Interested Party) [2021] eklr where the court held; “ The overriding objective, also referred to as the double o (OO) or oxygen principle comes out and urges courts to deal with a view to meeting out the ends of justice. This is in agreement with the provisions of Article 159(2) d of the Constitution of Kenya, 2010 above cited. This further illustrated in the authority of Abdirahman Abdi also known as Abdirahman Muhumed Abdi vs Safi Petroleum Products Ltd. & 6 others, Civil Application No. Nai 173 of 2010 where a notice of appeal was served on the Respondent out of time and without leave of court. Upon being asked to strike it out, (Omolo, Bosire and Nyamu JJ. A) observed thus; “ The overriding objective in civil litigation is a policy which the court inokes to obiate hardship, expenses, delay and to focus on substantive justice…” 55. In conclusion, the Petitioner submitted that the Preliminary Objection by the 1st Respondent is frivolous, baseless, which has been brought with malicious intention to delay and frustrate the move by the Petitioner to represent the interests of the residents of Narok County as well as the people accessing justice and recovering land belonging to the people, which land was illegally taken away by public oficers, who used their positions for personal gains, instead of upholding the integrity and protecting fundamental rights. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8691/eng@2025-12-11 8

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56. The above are the arguments in support and against the instant Preliminary Objection, which objection is challenging the jurisdiction of this court. This being a challenge on the jurisdiction of the court, then the said objection is on a point of law, and fits the description of what amount to a Preliminary Objection as described in the Mukisa Biscuits case (Supra), which case was been cited by all the parties herein. 57. Having considered the instant Preliminary Objection, the rival written submissions and the relevant provisions of law, the court finds the issues for determination are:i. Whether the Court has jurisdiction to entertain the instant petition; ii. Whether the instant Notice of Preliminary Objection is merited. I. Whether the court has jurisdiction to hear and determines the instant Petition 58. It is the argument of the 1st Respondent that the court has no jurisdiction to hear and determines the Petition herein since the issues raised by the Petitioner are touching on the actions of the 1st Respondent while he was in ofice as the Governor of Narok County, wherein he alleged illegally acquired 1000 acres from Mara Triangle Game Reserve, and later leased it to the 2nd Respondent. He argued that the issues raised by the Petitioner are covered under the Leadership and Integrity Act No 19 of 2012. further any investigations on the wrong doing touching on criminal activities can be ably investigated by the National Police as provided by the National Police Act, and any integrity issues are investigated by the Ethics and Ant-corruption Commission of Kenya and not by this court. 59. On his part, the Petitioner argued that this is a public interest litigation, aimed at safeguarding the biodiversity of Mara Triangle Game Reserve, and public land, which should not be delayed and/ or frustrated through this Preliminary Objection. 60. The court has considered the Petition and the Notice of motion Application as filed by the Petitioner herein. Basically the main complaint is that the 1st Respondent in his capacity as the former Governor of Narok County Government abused his ofice, caused the loss of the original title of the Game Reserve, and upon construction, he illegally caused 1000 acres within Mara Triangle Game Reserve to be alienated and registered in his name, and later this 1000 acres were illegally leased to the 2nd Respondent. 61. These alleged actions of the 1st Respondent if true go against the principles of good governance, and contravenes the expected ethics and integrity of a public oficers. the Constitution of Kenya 2010 is very clear in Article 75(1) of what is expected of a State Oficer, and any contravention of the expected behaviour, then there are established independent Constitutional bodies to deal with such conducts. 62. In that regard, the Constitution provides for establishment of Ethics and Ant-corruption Commission of Kenya, which investigates cases of integrity issues and corruption, National Police is also mandated to investigate cases touching on criminal aspects and activities, of any individuals be they state oficers or private citizens. 63. Chapter 6 of the Constution provides values expected of a public oficer, and any contravention of the provisions of Chapter 6 of the Constitution is enforced through the Leadership and Integrity Act. The enforcement of Leadership and Integrity Act, is done through the criminal justice system, but not through the civil process, or through the Environment and Land Court Act. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8691/eng@2025-12-11 9

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64. The jurisdiction of the Environment and Land Court is well set out in Article 162(2)b of the Constitution and Section 13 of the Environment and Land Court Act. Dealing with cases of contraventions of Leadership and Integrity Act is not one of them. 65. It is evident that the Petitioner herein on 25th March 2025, wrote a letter to the Director of Criminal Investigations requesting for investigations on illegal alienation of 1000 acres in Mara Triangle Game Reserve registered as LR No. 212713/1. This is the parcel of land that was allegedly leased to the 2nd Respondent. However, the lease in issue is between the 3rd Respondent and 2nd Respondent, and not between the 1st Respondent and 2nd Respondent. 66. Given that the alleged actions or conduct that culminated in the suit land being leased to the 2nd Respondent is supposed to be criminal in nature, and given that the said action has not been investigated and held to be illegal or fraudulent, then this court finds that it has no jurisdiction to direct the 3rd, 5th and 6th Respondents carry out their constitutional mandate by directing them to investigate circumstances under which approximately 1000 acres were alienated from the Mara Triangle Game Reserve, and later illegally leased to the 2nd Respondent as sought by the Petitioners in his prayers v, vi, vii, and viii of his Notice of Motion dated 11th April 2025. 67. Taking into regard the jurisdiction of the court as set out in Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, this court finds and holds that it has no jurisdiction to hear and determines this Petition as framed. 68. Further, this court finds that the Petitioner herein did write to Director of Criminal Investigation(DCI) requesting for investigations into the circumstances leading to the alleged illegal alienation of the suit property. The said letter is dated 25th March 2025 and this Petition is dated 11th April 2025. It seems the Petitioner did not wait for response from the Director of Criminal Investigation(DCI) or the other public bodies that he had requested for information from. This Petition was brought to court prematurely and is against the doctrine of exhaustion. See the case of Geofrey Muthinja & another vs Samuel Muguna Henry & 1756 others [2015] eklr, 69. Further, as submitted by the 2nd Respondent, the Petitioner complaint is about the illegal alienation and leasing of the suit property to 2nd Respondent. The 2nd Respondent alleged it entered into a legal or proper lease with 3RD Respondent. This is therefore a normal civil dispute which ought to have been filed as normal a ELC Matter, since the constitutional question is not clear. 70. With the above analysis, this court finds and holds that it has no jurisdiction to hear and determines the Petition herein whose foundation is the alleged contravention of the provisions of Chapter 6 of the Constitution, and enforcement of Leadership and Integrity Act. II. Whether the 1st Respondent's Preliminary Objection dated 19th May 2025, is merited? 71. This court having found that the Petition herein raises no constitutional question, contravened the doctrine of exhaustion, and thus the court has no jurisdiction, then this court finds and holds that the Preliminary Objection herein is merited, and the court proceeds to down its tools, since a court without jurisdiction cannot go any other step in a matter. See the case of Owners of the Motor Vessel ‘Lilian “S” Vs Caltex Oil (Kenya) Ltd (1989) KLR 1 where the court held; “ ………. jurisdiction is everything, without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8691/eng@2025-12-11 10

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pending other evidence. A court of law downs its tools the moment it holds the opinion that it is without jurisdiction” 72. For the above reasons, this court proceeds to allow the Notice of Preliminary Objection dated 19th May 2025, with costs, and proceeds to strike out and dismiss the instant Petition and Notice of Motion Application even dated entirely in limine It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAROK THIS 11TH DAY OF DECEMBER 2025 L. GACHERU JUDGE Delivered online in the presence of Elijah Meyoki - Court Assistant Jummy Luka Parnymbe Petitioner in person Mr. Otieno holding brief for Kere for 1 st Respondent Mr. Kabaiku for 2nd Respondent Ms Lyona holding brief Maina for 3rd Respondent Ms. Mathenge for 4th Respondent N/A for 5th Respondent Ms. Mathenge for 6th and 7th Respondents N/A for 1st Interested party N/A for 2nd interested party. L. GACHERU JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8691/eng@2025-12-11 11

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