Republic v Chief Land Registrar & 1 other

Environment and Land Court to hear and determine disputes relating, inter alia, to: land administration and management; public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and any other dispute relating to environment and land. iii. Under Section 13(5) of the Environment and Land Court Act, the Environment and Land Court in exercise of its jurisdiction have power to make any order and grant any relief as the Court deems fit and just. iv. In this regard, the Supreme Court, in Republic v. Karisa Chengo & 2 Others Supreme Court Petition No 5 of 2015; [2017] eKLR, held that: “(52) In addition to the above, we note that pursuant to article 162(3) of the Constitution, Parliament enacted the Environment and Land Court Act and the Employment and Labour Relations Act and respectively outlined the separate jurisdictions of the ELC and the ELRC as stated above. From a reading of the Constitution and these Acts of Parliament, it is clear that a special cadre of courts, with sui generiss jurisdiction, is provided for. 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.” 2nd Respondent’s Submissions 3. Submissions dated 13th November, 2024 were filed on behalf of the 2nd Respondent by the Principal State Counsel, Mr. Kaumba. 4. It was submitted that this Court does not have jurisdiction to hear this matter by dint of Article 162 (2)(b) as read with Article 165(5)(b) of the Constitution. This is because the subject matter of the ex parte Petitioner’s Application as specifically described in the Annexures marked “JG 1” and “JG 5” relates to administration of Community Land. 5. Counsel argued that pursuant to Article 162(2) (b) of the Constitution, the Environment and Land Court was operationalized by the Environment and Land Court Act, to hear and determine disputes relating, inter alia, to: land administration and management; public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and any other dispute relating to environment and land. He stressed that in exercising this jurisdiction, the Environment and Land Court (ELC) is empowered under Section 13(5) of the Environment and Land Court Act to make any order and grant any relief as the Court deems fit and just. 6. To buttress the point, Counsel further relied on the Supreme Court decision of Republic v. Karisa Chengo (supra). Ex Parte Petitioner Submissions 7. W. Thuku & Associates Advocates filed two sets of submissions on behalf of the Petitioner, that is, those dated 10th September 2024 and 3rd March 2025 respectively. 8. Counsel argued that what the ex parte Petitioner seeks in its application is for leave to enforce the order issued by the Interested Party on 31st October 2023, as a decree of this Court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14569/eng@2025-10-16 2

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9. The finding by the Interested Party arose following a request that the ex parte Petitioner had made to the 1st Respondent to provide information on the current status of the designation of the Community Land Registrars especially for Marsabit County, as required under Section 9 of Community Land Act of 2016.The request had been done vide a letter dated 29th May 2023, pursuant to Article 35 of the Constitution and the Access to Information Act. 10. The 1st Respondent did not provide the information. It failed to respond to the request or give the sought information. 11. Aggrieved by the refusal to supply the information; the ex parte applicant party lodged its complaint with the Interested Party and sought a review of the decision citing the failure to facilitate access to information by the 1st Respondent as requested. 12. After inquiry, the Interested Party found in favour of the ex parte applicant and gave an Order directing the 1st Respondent to facilitate access to the sought information and the records. 13. Counsel submitted that even after the issuance of the Order aforesaid, the 1st Respondent did not comply, hence the filing of this Misc. Application by the ex parte Applicant to enforce the right of access to information under Article 35 of the Constitution which the 1st Respondent has violated. 14. Counsel relied in Famy Care Limited v Public Procurement Administrative Review Board & another Petition No. 43 of 2012 [2012] eKLR where the Court observed that the right of access to information promotes the values of good governance, integrity, transparency and accountability and the other values set out in Article 10 of the Constitution and the same cannot be achieved unless the citizen has access to information. 15. Like dependence was also placed in Nairobi Law Monthly Limited v Kenya Electricity Generating Company and 2 others 2013 eKLR, Republic v Isaiah Kubai & another; Commission on Administrative Justice (Interested Party) Ex-Parte Duncan Muthusi(2019) eKLR and Savraj Singh Chana v Diamond Trust Bank(Kenya)Limited & another (2020) eKLR. 16. On whether this Court has jurisdiction to entertain this matter Counsel answered in the affirmative owing to Article 165 (3) of the Constitution as read with Article 23(1). 17. Counsel opposing the 2nd Respondent’s argument submitted that the ex parte’s Petitioner’s application seeks to enforce his right under Article 35 of the Constitution and not the administration of Community Land. Counsel added that there is no provision of the law that bars the ex parte Applicant from seeking redress in this Court. Reliance was placed in Beehive Media Limited; Capwel Industries Limited [2023] KEHC 2684 (KLR) where it was held that: “ A constitutional and human rights court was supposed to exclusively deal with constitutional issues. A constitutional issue was one which confronted the various protections laid out in a constitution. Such protections may be in respect to the Bill of Rights or the Constitution itself. In any case, the issue must demonstrate the link between the aggrieved party, the provisions of the Constitution alleged to have been contravened or threatened and the manifestation of contravention or infringement.” Interested Party’s Submissions 18. On 30th April 2025, the Interested Party filed submissions through its Counsel Elizabeth Musembi who identified the single issue for discussion as whether this Court has jurisdiction to hear and determine the matter. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14569/eng@2025-10-16 3

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19. Counsel submitted that Article 165 of the Constitution establishes the High Court and outlines amongst it’s jurisdiction, it has jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened. This is also echoed under Article 23(1) of the Constitution. 20. Counsel concurring with the Petitioner submitted that the dispute herein relates to access to information from the 1st Respondent not land administration and management as advanced so as to fall under Article 162(2)(b) of the Constitution. 21. Counsel submitted that Article 165 (3) (e) of the Constitution provides that the High Court shall have any other jurisdiction, original or appellate conferred on it by legislation. It was observed that the Access to Information Act under Section 23(3) provides that the High Court has appellate jurisdiction to hear and determine appeals emanating from the decisions of the Interested Party. This directive is as well echoed under Regulation 27 of the Access to Information (General) Regulations. 22. Reliance was placed in Abok James Oden, T/A A.J Odem & Associates v John Patrick Machira T/A Machira & Co. Advocates (2013)KECA 208 (KLR) where it was held that: “ With regard to lack of jurisdiction to entertain this appeal, we wish to refer to the case of Rafiki Enterprises Limited versus Kingsway Tyres and Automart Limited Nai Civil Application No.375 of 1996 (UR) wherein the Court of Appeal held inter alia that; "Every court has a duty to determine whether or not it has jurisdiction in a particular matter, the of case of Galanga General Stores and 12 others versus Samuel Mbugua Githure Nairobi Civil Application Number Nai 101 of 1987 (UR) where in the same Court of Appeal held inter alia that "its appellate jurisdiction was statutorily given" the case of Kimani Wanyoike versus Electoral Commission Civil Appeal No. 213 of 1995 (UR) wherein the Court of Appeal ruled that:"where there is a law prescribed by either a constitution or an act of parliament governing a procedure for the redress of any particular grievance, that procedure should be strictly followed". 23. Like dependence was placed in Republic v Director of Survey, Kisumu County & another; Asara (exparte Applicat); Agengo (Interested Party) [2023]KEHC 26556 (KLR), Law Society of Kenya v Supreme Court of Kenya & another; Abdulalli SC & 19 others (Interested Parties) [2024] KEHC 7819 (KLR) and Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 others [2012]eKLR. 24. Consequently, Counsel submitted that the nature and issue of dispute for determination in this matter is the denial and refusal of information by the 1st Respondent and does not relate to a land dispute. For this reason, Counsel stressed that this Court has jurisdiction to entertain this suit. Analysis and Determination 25. Having considered the pleadings and submissions of the Parties herein, the issue that arises for determination is: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14569/eng@2025-10-16 4

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Whether the 2nd Respondent’s Preliminary Objection is merited. 26. The fundamental features of a preliminary objection were restated 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. 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.” 27. The Preliminary Objection herein has been raised on the basis that the subject matter of this Misc Application is matter that should be heard by the Environment and Land Court and not the High Court. 28. 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— https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14569/eng@2025-10-16 5

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….; and the environment and the use and occupation of, and title to, land. 29. The 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: 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. 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 e. any other dispute relating to environment and land. 2. 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. 3. 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. 4. 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14569/eng@2025-10-16 6

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30. The Court 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. 31. 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. ….. …. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14569/eng@2025-10-16 7

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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). Also see: Honey Creepers Investment Limited v Cab Investments Company Ltd & 4 others [2020] eKLR. 139. 32. 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.” Where the issues are cross - cutting between the High Court and Environment and Land Court, the case of Benson Makori Makworo v Nairobi Metropolitan Services & 2 others (2022)eKLR provides the guiding principle. The Court after evaluating the two conflicting authorities stated: “ 28. …The matter, however, did not end there. A further problem arose. It was on the cases raising ‘cross-cutting’ or ‘cocktail’ or ‘mixed grill’ issues within either Courts. 29. Initially there were two schools of thought in the High Court on the matter. One school favoured the ‘pre-dorminant purpose test’ whereas the other school rooted for the ‘pre-dorminant issue before Court test’. 30. The proponents of the former include Ngugi, J who rendered himself in Suzanne Achieng Butler & 4 Others vs Redhill Heights Investments Limited & Another (2016) EKLR as follows: - https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14569/eng@2025-10-16 8

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23. When faced with a controversy whether a particular case is a dispute about land (which should be litigated at the ELC) or not, the Courts utilize the Pre-dominant Purpose Test: In a transaction involving both a sale of land and other services or goods, jurisdiction lies at the ELC if the transaction is predominantly for land, but the High Court has jurisdiction if the transaction is predominantly for the provision of goods, construction, or works. 24. The Court must first determine whether the pre-dominant purpose of the transaction is the sale of land or construction. Whether the High Court or the ELC has jurisdiction hinges on the predominant purpose of the transaction, that is, whether the contract primarily concerns the sale of land or, in this case, the construction of a townhouse. 31. Munyao, J was for the other test. In Lydia Nyambura Mbugua v Diamond Trust Bank Kenya Limited & Another [2018] eKLR the Learned Judge argued as follows: - 25. ……. On my part, I would modify the above test, and hold the position that what is important when determining whether the court has jurisdiction, is not so much the purpose of the transaction, but the subject matter or issue before court, for I think that the purpose of the transaction, may at times be different from the issue or subject matter before court. Let us take the transaction of a charge as an example. The predominant purpose of creating a charge is for one to be advanced some financial facilities. However, when it comes to litigation, the predominant issue may not necessary be the money, but the manner in which the chargee, is exercising its statutory power of sale. Here, I trust that you will see the distinction between the predominant purpose of the transaction and the predominant issue before court. That is why I hold the view, that in making a choice of which court to appear before, one needs to find out what the predominant issue in his case is, and not necessarily, the predominant purpose of the transaction. If the litigant’s predominant issue will touch on the use of land, or occupation of land, or a matter that affects in one or another, title to land, then such issue would fall for determination before the ELC. 32. The Court of Appeal had an occasion and dealt with the issue. In Co-operative Bank of Kenya Limited v Patrick Kang’ethe Njuguna & 5 others, Civil Appeal No. 83 of 2016 [2017] eKLR, the Court dealt with the issue as follows: (30) Article 260 aforesaid echoes the traditional definition of land under the common law doctrine known as Cujus est solum, eius est usque ad coelum et ad inferos (cujus doctrine) which translates to ‘whoever owns [the] soil, [it] is theirs all the way [up] to Heaven and [down] to Hell’. As with our Constitution, the doctrine defines land as the surface thereof, everything above it and below it as well….… (31) Indeed, considering the above definitions, the inevitable conclusion to be drawn is that land connotes the surface of the land, and/or the surface above it and/or below it.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14569/eng@2025-10-16 9

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(35) 33. …[F]or land use to occur, the land must be utilized for the purpose for which the surface of the land, air above it or ground below it is adapted. To the law therefore, land use entails the application or employment of the surface of the land and/or the air above it and/or ground below it according to the purpose for which that land is adapted. The Court of Appeal, therefore, settled for the ‘pre-dorminant purpose test’. Therefore, that is the test I will use in this case.” 33. The 2nd Respondent contended that the matter before the Court falls within the jurisdiction of the Special Court under Article 162(2) (b) of the Constitution for it relates to administration of Community Land. 34. This argument was opposed by the ex parte Applicant and Interested Party who asserted that the issues raised revolve around violation of his right to access information as envisaged under Article 35(1) of the Constitution and the not administration or dispute over land as contended by the 2nd Respondent. 35. The gravamen of the Application is the ex parte Petitioner’s claim that he requested for information from the 1st Respondent concerning the status of the designation of the Community Land Registrars in Marsabit County. The ex parte Petitioner argued that this request was not responded to by the 1st Respondent. This caused the ex parte Applicant to lodge a complaint with the Interested Party herein (CAJ). 36. In my view, the pre-dominant issue test indicates that the substratum of the instant suit is about access to information. The ex parte Applicant seeks to be supplied with the information concerning the operationalization of Section 9 of the Community Land Act, 2016 that deals with designation of Community Land Registrars, specifically, the status as regards Marsabit County. 37. Although the Environment and Land Court has the jurisdiction to adjudicate violation of constitutional rights arising from land use and its administration of which this may, in my considered view, include the 1st Respondent’s administrative mandate, the specific issue here relates to the alleged refusal to give access to information, which is a matter which is directly governed by the provisions of Access to Information Act, Cap 31 of 2016. 38. The Access to Information Act does not define the word ‘Court’ under Section 2, but Section 23 of the Act makes direct reference to the High Court as follows: Powers of the Commission 1. In the performance of its functions under this Act, the Commission shall have the power to— a. issue summonses or other orders requiring the attendance of any person before the Commission and the production of any document or record relevant to any investigation by the Commission; b. question any person in respect of any subject matter under investigation before the Commission; and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14569/eng@2025-10-16 10

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c. 2. require any person to disclose any information within such person's knowledge relevant to any investigation by the Commission. The Commission may, if satisfied that there has been an infringement of the provisions of this Act, order— a. the release of any information withheld unlawfully; b. a recommendation for the payment of compensation; or c. any other lawful remedy or redress. 3. A person who is not satisfied with an order made by the Commission under subsection (2) may appeal to the High Court within twenty-one days from the date the order was made. 4. An order of the Commission under subsection (2) may be filed in the High Court by any party thereto in such manner as the Commission may, in regulations made in consultation with the Chief Justice, prescribe and such party shall give written notice of the filing of the order to all other parties within thirty days of the date of the filing of the order. 5. If no appeal is filed under subsection (3), the party in favour of whom the order is made by the Commission may apply ex-parte by summons for leave to enforce such order as a decree, and the order may be executed in the same manner as an order of the High Court to the like effect. 6. Public entities and relevant private bodies shall provide to the Commission such reports as required by the Act. 7. The Commission shall, in consultation with the public, develop and publicize guidelines detailing the reporting requirements including the manner, means and timeframes that apply to public entities and relevant private bodies. 8. The Commission may request any further information from the public entity or the relevant private body to facilitate and enhance monitoring at any time and may issue an order compelling the provision of such further information. 39. Evidently, for purposes of enforcement of the decisions of the Commission on access to information, the jurisdiction of the Environment and Land Court is ousted as the Act exclusively vests those powers to the High Court. 40. This is the Court therefore that has jurisdiction to deal with the decisions emanating from the Commission of Administrative Justice either for purposes of enforcement or appeal, where appropriate. 41. The Court finds the 2nd Respondent’s Preliminary Objection misconceived and is therefore dismissed. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 16TH DAY OF OCTOBER, 2025. ……………………… L N MUGAMBI https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14569/eng@2025-10-16 11

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JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14569/eng@2025-10-16 12

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