Abdi Godana & 23 Others v The Board of Management of St Martin School & 2 others

4. On a preliminary note, Counsel stated that the Court in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 guided as follows: “ 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. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.” 5. Comparable reliance was placed in Oraro v Mbaja [2005] 1 KLR 141, Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR and David Karobia Kiiru v Charles Nderitu Gitoi & Another (2018) eKLR. 6. Counsel submitted that the Constitution under Article 162(2)(b) establishes the Environment and Land Court (ELC) whose mandate is outlined under Section 13(2) of the Environment and Land Court Act to be jurisdiction over land and the environment and additionally under Section 13(3), jurisdiction over applications for 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. In view of this, Counsel stated that the Constitution under Article 165(5) bars the High Court from assuming ELC’s jurisdiction. 7. In this matter, Counsel submitted that the 2nd Respondent’s Preliminary Objection challenges this Court’s jurisdiction to entertain this suit. Reliance was placed in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR where it was held that: “ A Court’s jurisdiction fiows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 8. Comparable reliance was placed in Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Limited (1989) I KLR and Republic v Karisa Chengo & 2 Others [2017] eKLR, Abubakar v Kanyotu (Civil Appeal 38 of 2017) [2023] KEHC 1896 (KLR) and Husseini Builders Limited v Oceanic Towers Limited (Environment and Land Case Civil Suit 110 of 2018) [2022] KEELC 3661 (KLR). 9. Counsel submitted that the Petition herein concerns the Petitioners’ claim that the Respondents have attempted to evict them from their homes situated in Kibagare Slum so as to build a road. According to Counsel this essentially means that the Petition revolves around the use and occupation of the subject land and by dint of this, falls outside the purview of the High Court but that of the ELC. 10. Reliance was placed in Mariba & 4 Others (All Suing on their behalf and as the legal Representatives of Michael Mariba Merengo Mwita alias Mariba Merengo (Deceased)) v Cabinet Secretary, Ministry of Lands and Physical Planning & 3 Others (Constitutional Petition 9 of 2021) [2022] KEHC 11424 (KLR) where it was held that: “ The ELC Court can deal with both the land issue and give declarations for violation of rights while the High Court can only deal with the alleged violation of rights in this petition. I am of the view that the High Court is therefore bereft of jurisdiction in matters falling within the jurisdiction of the courts contemplated under article 165 (2) of the Constitution. The https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12780/eng@2025-09-18 2

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ELC Court is a court of equal status as the High Court and it is empowered to grant all the reliefs sought in this petition. The objection, therefore, succeeds.” 11. To this end, Counsel submitted that this Court lacks jurisdiction to hear and determine the application and Petition. Consequently, it was asserted that the 2nd Respondent’s Preliminary Objection is merited. Petitioners’ Submissions 12. Pharis and Company Advocates for the Petitioners filed submissions dated 28th April 2025 in opposition to the Preliminary Objection. Counsel highlighted the key issue for discussion as: whether the 2nd Respondent’s Preliminary Objection is merited. 13. Counsel submitted that the Petitioners claims against the 2nd Respondent are primarily focused on violation of their constitutional and basic human rights, which fall within the original unlimited jurisdiction of the High Court. To buttress this point reliance was placed in Article 22, 23 and 165 of the Constitution which was affirmed by the Supreme Court in John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR). 14. Comparable reliance was placed in Greenboot Kenya Limited v Kenya Revenue Authority & another (Petition E433 of 2021) [2025] KEHC 4934 (KLR) and Fredricks & Other v MEC for Education and Training, Eastern Cape & Others (2002) 23 ILJ 81 (CC). 15. Counsel stressed therefore that the jurisdiction vested in the constitutional Court to determine constitutional matters and issues connected with decisions on constitutional matters is clearly an extensive jurisdiction. Reliance was placed in Japheth Ododa Origa v Vice Chancellor University of Nairobi & 2 others [2018] KEHC 4861 (KLR) where it was held that: “ Where a petitioner approaches the court through a constitutional petition pleading that his constitutional rights and fundamental freedoms have been violated or denied, pleading with precision and clarity, pointing out with particularity the Articles of the Constitution concerned, enables the Court understand the issues it is called upon to resolve. This is because a claim of violation of constitutional rights and fundamental freedoms call on the court to interpret the Constitution and its provisions as they relate to the rights and fundamental freedoms said to have been infringed, thus determine whether the petitioner’s claim of infringement of rights has any basis.” 16. In this suit, Counsel submitted that the acts and omissions of the 2nd Respondent in had violated the Petitioners’ fundamental freedom and human rights as provided for under the Constitution and as detailed in the Petition. On this ground, Counsel submitted that the Preliminary Objection is not merited as it is clear that this Court has jurisdiction to determine this suit. The 1st and 3rd Respondents Case 17. These Parties responses and submissions are not in the Court file or Court Online Platform (CTS). Analysis and Determination 18. Having considered the pleadings and submissions of the Parties herein, the issue that arises for determination in my view is: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12780/eng@2025-09-18 3

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Whether the 2nd Respondent’s Preliminary Objection is merited. 19. The nature of a preliminary objection was summarized by the Court in Kyule v Gitaari [2024] KEHC 5819 (KLR) as follows: “ 7. The case of Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696 is notorious on the issue of what constitutes a preliminary objection. The court observed thus:…..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. 8. Sir Charles Newbold P. stated:A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop. 9. Similarly the Supreme Court in the case of Hassan Ali Joho & another v Suleiman Said Shabal & 2 others SCK Petition No 10 of 2013 [2014] eKLR held that: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. 10. Further in the case of Hassan Nyanje Charo v Khatib Mwashetani & 3 others, [2014] eKLR the court held that:Thus a preliminary objection may only be raised on a ‘pure question of law.’ To discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record. 11. 20. Evidently, a preliminary objection must be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with the point of law.” Comparatively in Oraro v Mbaja (supra) the Court observed that: “ 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. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. The first matter relates to increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law, which is argued on the assumption that all facts pleaded by the opposite side are correct. It cannot be raised if any fact is to be ascertained https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12780/eng@2025-09-18 4

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or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion confuse issues and this improper practice should stop… The principle is abundantly clear. A “preliminary objection” correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary point…Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence. If the applicant’s instant matter required the affidavit to give it validity before the Court, then it could not be allowed to stand as a preliminary objection clearly out of order and, apart from amounting to a breach of established procedure, it had the unfortunate effect of provoking filing of the respondent’s very detailed “affidavit in reply to an affidavit in support of preliminary objection”, which replying affidavit was expressed to be “under protest”… The applicant’s “notice of preliminary objection to representation” cannot pass muster as a procedurally designed preliminary objection. It is accompanied by affidavit evidence, which means its evidentiary foundations are not agreed and stand to be tested. Secondly, the essential claims in the said preliminary objections are matters of great controversy, as their factual foundations are the subject of dispute.” 21. Article 162(2)(b) of the Constitution provides as follows: Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to— 22. a. ….; and b. the environment and the use and occupation of, and title to, land. Parliament as empowered by Article 162 of the Constitution enacted the Environment and Land Court Act No.19 of 2011 which deals exclusively with matters falling within its ambit. The Jurisdiction of the Court is defined under Section 13 of the Act as follows: 1. The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. 2. In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes— a. relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; b. relating to compulsory acquisition of land; c. relating to land administration and management; d. relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12780/eng@2025-09-18 5

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e. 23. any other dispute relating to environment and land. 3. Nothing in this Act shall preclude the Court from hearing and determining applications for 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. 4. In addition to the matters referred to in subsections (1) and (2), the Court shall exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court. 5. In exercise of its jurisdiction under this Act, the Court shall have power to make any order and grant any relief as the Court deems fit and just, including— a. interim or permanent preservation orders including injunctions; b. prerogative orders; c. award of damages; d. compensation; e. specific performance; f. restitution; g. declaration; or h. costs. The Supreme Court in Karisa Chengo (supra) guided as follows: “ [50] It is against the above background, that Article 162(1) categorises the ELC and ELRC among the superior Courts and it may be inferred, then, that the drafters of the Constitution intended to delineate the roles of ELC and ELRC, for the purpose of achieving specialization, and conferring equality of the status of the High Court and the new category of Courts. Concurring with this view, the learned Judges of the Court of Appeal in the present matter observed that both the specialised Courts are of “equal rank and none has the jurisdiction to superintend, supervise, direct, shepherd and/or review the mistake, real or perceived, of the other”. Thus, a decision of the ELC or the ELRC cannot be the subject of appeal to the High Court; and none of these Courts is subject to supervision or direction from another. In their words: “By being of equal status, the High Court therefore does not have the jurisdiction to superintend, supervise, direct, guide, shepherd and/or review the mistakes, real or perceived, of the ELRC and ELC administratively or judiciously as was the case in the past. The converse equally applies. At the end of the day however, ELRC and ELC are not the High Court and vice versa. However, it needs to be emphasized that status is not the same thing as jurisdiction. the Constitution though does not define the word ‘status’. The intentions of the framers of the Constitution in that regard are obvious given the choice of… words they used; that the three Courts (High Court, ELRC and ELC) are of the same juridical hierarchy and therefore are of equal footing and standing. To us it simply means that the ELRC and ELC exercise the same powers as the High Court in performance of its judicial function, in its specialised jurisdiction but they are not the High Court.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12780/eng@2025-09-18 6

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(51) 24. Flowing from the above, it is obvious to us that status and jurisdiction are different concepts. Status denotes hierarchy while jurisdiction covers the sphere of the Court’s operation. Courts can therefore be of the same status, but exercise different jurisdictions…” The Superior Court went on to further state that: “ …[52] …We therefore entirely concur with the Court of Appeal’s decision that such parity of hierarchical stature does not imply that either ELC or ELRC is the High Court or vice versa. The three are different and autonomous Courts and exercise different and distinct jurisdictions. As Article 165(5) precludes the High Court from entertaining matters reserved to the ELC and ELRC, it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High Court.” 25. Additionally, in Mohammed Said v County Council of Nandi [2013] KEELC 139 (KLR) the Court observed that: “ The general jurisdiction is set out in Section 13 (1) which emphasizes that the E&LC has both original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of the Environment & Land Court Act, or any other law applicable in Kenya relating to environment and land. Section 13 (2) clarifies the general jurisdiction in Section 13 (1), probably to avoid ambiguity as to what a matter touching on land and environment is. Section 13 (3) emphatically states that nothing is to preclude the jurisdiction of the Environment & Land Court to hear applications for 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. A plain reading of Section 13 (3) will demonstrate that the jurisdiction of the court is not limited only to hearing matters touching on violations of Articles 42, 69, and 70 of the Constitution. That section does not state that the E&LC is only to hear the matters set out in Articles 42, 69 and 70 of the Constitution. The section for whatever reason, is emphasizes the jurisdiction of the court to hear petitions touching on the environment. There is no preclusion to hear any other petition, grounded on any other Article of the Constitution, so long as it falls within the purview of land and environment. 18. 26. Indeed, the High Court has no jurisdiction in respect of matters that fall within the jurisdiction of the Environment and Land Court or that falling within the jurisdiction and the Industrial Court. This is set out in Article 165 (5) of the Constitution.” Equally in Mugweru & 4 others (Being the administratrices of the Estate of Maaka Mukuhi Mugweru (Deceased)) v National Land Commission & 5 others; Estate of Samuel Mugweru Wathirwa & another (Interested Parties) [2022] KEHC 13252 (KLR) the Court held that: “ 134. My interpretation of the preceding Section is that the jurisdiction of the Environment and Land Court is founded on the existence of any dispute with relation to land or environment. In essence therefore where the substratum of a dispute is founded on such, the matter should be exclusively dealt with in the Environment and Land Court. ….. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12780/eng@2025-09-18 7

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136. Considering the matter before this Court, it is apparent that the foundation of the issue is ownership of property LR No 13041 which led to the 1st respondent’s impugned decision. The issue principally relates to the land title and administration of the property which falls within the jurisdiction of the Environment and Land Court. The petitioners however contend that the issues raised herein deal with the violation of their constitutional rights which this Court has the jurisdiction to entertain. 137. To answer this question I am guided by the Court of Appeal who speaking to this matter in the case of Chimweli Jangaa Mangale & 3 others v Hamisi Mohamed Mwawasaa & 15 others [2016] eKLR opined as follows: “This Court considered the issue in Prof. Daniel N. Mugendi v Kenyatta University & Others, CA No 6 of 2012 and in Judicial Service Commission v Gladys Boss Shollei & Another, CA No 50 of 2014, involving the Labour and Employment Court, which, like the ELC, is a court of equal status as the High Court under Article 162(2) of the Constitution. The Court concluded that the High Court did not have exclusive jurisdiction to enforce the Bill of Rights and that the Constitution contemplates enforcement and protection of fundamental rights and freedoms by other courts, other than the High Court. Accordingly, where issues involving the environment or land raise constitutional issues or issues of protection and enforcement of the right to land as property, the ELC will have jurisdiction to hear and determine the dispute. We are satisfied that the appellant’s claim that the ELC lacks jurisdiction to enforce constitutional rights is totally bereft of merit.” 138. Similarly, the Court in the case of Joyce Mutindi Muthama & another v Josephat Kyololo Wambua & 2 others [2019] eKLR held that: “16. It is true, as submitted by the Respondents’ counsel, that under Section 13(3) of the Environment and Land Court Act, the court has the mandate to hear and determine applications for redress of a denial, violation or infringement of, or threat to rights or fundamental freedoms relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution. However, the Act does not limit or preclude the court from hearing applications for redress of a denial or violation of any other right, if that right is in furtherance of a dispute relating to land and the environment. 17. It is trite that the right to own land and the right to a clean and healthy environment cannot be dealt with in isolation from other rights like the right to a fair hearing, the right not to be discriminated against, the right to a fair administrative action, the right to equal protection and equal benefit of the law, the right to adequate housing, amongst other rights. 18. All these rights have to be interpreted in the context of the Petitioners’ right to own land and the right to a clean and healthy environment, and not in isolation as argued by the Respondents.”(Emphasis is mine). https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12780/eng@2025-09-18 8

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Also see: Honey Creepers Investment Limited v Cab Investments Company Ltd & 4 others [2020] eKLR. 139. Guided by the above case law, I find the substratum of this case to be title to land. The Environment and Land Court has the jurisdiction to hear and determine matters concerning breach of fundamental rights if the heart of the issue stems from its jurisdiction pertaining to land and environment.” 27. The Preliminary Objection in this matter mainly revolves around the 2nd Respondent’s challenge to this Court’s jurisdiction to entertain this Petition. This issue is premised on Article 165 (5) of the Constitution as read with Article 162 (2) (b) of the Constitution. This objection principally affects this Court’s jurisdiction and where found to be merited, requires the Court to down its tools. 28. The Supreme Court in Macharia & another (supra) guided as follows: “ A Court’s jurisdiction fiows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsels for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality, it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings … where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.” 29. The 2nd Respondent contended that the nature of this Petition is a matter within the jurisdiction of the Special Court under Article 162(2) (b) of the Constitution. This argument was opposed by the Petitioners who argued that the issues raised revolve around violation of fundamental rights and freedoms and human rights which falls under this Court’s jurisdiction being the Constitutional Court. 30. The Petition herein is brought on behalf of the residents of Kibagare slums where it is claimed they have lived since 1950s. While the Petitioners acknowledge that the land is government land, they assert that the 2nd Respondent has laid a false and malicious claim over the land and seeks to evict the residents to construct a road. This decision is said to have been made without notifying and consulting the residents which is a constitutional requirement. The Petitioners as a result, seek the following relief against the Respondents: a. A declaration be issued that the Petitioners’ members are entitled to the benefit of equal protection of the law under the Constitution. b. A declaration be issued that the Petitioners’ members are entitled to the benefit of all the rights and freedoms provided for under Article 43 of the Constitution. c. A declaration be issued that the 1st Respondent has not had the use or the occupation of the unsurveyed land occupied by the Petitioners’ members otherwise known as Kibagare slum. d. An order be issued directing the 2nd Respondent, namely the Nairobi City Council, to immediately, but not later than ninety days (90) of this order cause the survey and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12780/eng@2025-09-18 9

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delineation of the boundary between the St. Martin School and Kibagare slum for purposes of permanently resolving any historical claims. e. An order be issued by way of injunction restraining the Respondents’ jointly and severally either by themselves, agents, officials or officers claiming authority under them from evicting, removing from and/or in any manner interfering with the quiet occupation of the petitioners on the piece of un-surveyed land commonly known as Kibagare lying between St. Martin School and Loresho School in Westlands sub county within Nairobi county pending the implementation of order no. 4 above subject to right of appeal by any party. f. An order for compensation for the loss and damages to livelihoods and properties. g. This Petition has been brought in the public interest by indigent/poor slum dwellers, each party to bear their costs. 31. In my view, the pre-dominant issue herein indicates that informs the substratum of the instant suit revolves around the management and administration of the impugned land where Kibagare Slums is situated. Furthermore, and contrary to the Petitioners assertion, the law dictates, and has been held severally, that the ELC has the jurisdiction to adjudicate violation of constitutional rights that arise from matters pertaining to land and environment, not the High Court. 32. Accordingly, it is my considered take that, the issues touching on this Petition bear their legal implication under the jurisdiction of the Environment and Land Court as established under Article 162(2) (b) of the Constitution. 33. It is my humble opinion that this Court is barred from exercising jurisdiction over matters reserved for Special Courts as espoused under Article 165 (5) (b) of the Constitution. 34. On this premise, it is my considered view that the 2nd Respondent’s Preliminary Objection is merited and thus the Petition is struck out with no orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 18TH DAY OF SEPTEMBER, 2025. ……………………………………………. L N MUGAMBI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12780/eng@2025-09-18 10

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