County Government of Kiambu v Enchanting Mombasa Limited & 7 others

2. For context, the Petitioner/Applicant first moved the court by way of Petition and Notice of Motion application dated 27th March, 2025 seeking injunctive reliefs restraining the Respondents from undertaking construction activities on Land Reference No. Ngoliba/Township/93 and Ngoliba/ Township/94 (the suit properties) as well as orders directing the Respondents to vacate the said suit properties and refrain from interfering with the Petitioner’s occupation. 3. This court considered the exparte application, certified it as urgent, or granted the interim reliefs sought therein and further ordered the application to be served upon the Respondents. 4. The Petitioner/Applicant filed a Notice of Motion application dated 1st April, 2025 seeking to have the Respondents and their oficers cited for contempt of court for allegedly disobeying the interim orders issued on 28th March, 2025. 5. The 2nd to 9th Respondents filed the Notice to Preliminary Objection 7th April, 2025 in which they challanged the jurisdiction of this court to entertain the Petition on grounds that it offends the constitutional demarcations between the National and County Governments and that the proceedings are tainted with material non-disclosure. 6. For purposes of this Ruling, the court will begin with determining the Notice of Preliminary Objection as raised by the 2nd – 9th Respondents since it has the effect of disposing off the entire petition as noted by the court in the case of Pius Kamau Kinuthia v David Mueithi Kanyi & Another (Environment & Land Case No.E007 of 2023)[2024] KEELC 1625 (KLR) that:“ A Preliminary Objection rests on the proposition that when raised, its fundamental accomplishment will have a bearing on disposing of a matter because it raises pure points of law. It also underscores the need for prudent management of time as a court resource by summarily flagging out a frail and hopeless suit that if admitted to full trial, will be a wash of judicial time and will not serve the interest of justice. One will not be required to look elsewhere to find an answer as to whether a Preliminary Objection is sustainable or not, but to look at the pleading and discover that the suit is a non-starter. 7. On what a Preliminary Objection is, the case of Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696 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. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration”. In the same case 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”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18305/eng@2025-11-03 2

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8. The Supreme Court of Kenya in the case of Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others[2015]eKLR made the following observation with regard to Preliminary Objections:“ The true Preliminary Objection serves two purposes of merit; firstly, it serves as a shield for the originator of the Objection against profligate deployment of time and other resources. And secondly, it serves the public cause of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the Preliminary Objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits”. 9. In this particular case, the Preliminary Objection raised is on account of this court’s jurisdiction to entertain the Petition . It is trite that in every case or matter before court, the starting point for any court is to establish whether or not it has jurisdiction to hear and determine the same. This is because without jurisdiction, the court has to down its tools. This was stated in the classic case of The Owners of the Motor Vessel “Lillian S” -vs- Caltex Oil (Kenya) Ltd (1989) KLR 1, where Nyarangi J.A. held as follows:“ I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. 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 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.' 10. It is also trite that a court derives its jurisdiction either from the Constitution or statute or both. This is the decision by the Supreme Court of Kenya in the case of Samuel Kamau Macharia v KCB & 2 Others, Civil Application No. 2 of 2011, where it was stated that:“ A Court's jurisdiction flows 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” 11. According to the Preliminary Objection the court should not entertain the Petition based on various grounds as listed therein as follows:i. That on the strength of the express provisions of Article 189 of the Constitution and Section 30 of the Inter-Governmental Relations Act No.2 of 2012, this Honourable Court lacks jurisdiction to hear and determine this matter on its merit. ii. That the petitioner has not fully exhausted all available alternative Dispute Resolution Mechanism to resort to invoking the inherent jurisdiction of this Honourable court and therefore the Jurisdiction of this Honourable Court has been invoked pre-maturely and this Court has no jurisdiction to hear and determine this Petition. iii. That this Petition contravenes the well settled doctrines of constitutional avoidance and exhaustion of statutory provided dispute resolution mechanisms. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18305/eng@2025-11-03 3

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12. iv. The Petition herein is Subjudice Thika Elc Petition Number E003 of 2025 between Kiambu County Government Vs Cabinet Secretary Ministry Of Lands, Public Works,housing And Urban Development,permanent Secretary, Ministry Of Lands,public Works,housing And Urban Development,hon Attorney General And Inspector General Of Police filed by the same said Petitioner herein. v. That this suit amounts to a total abuse of the court process and the same is vexatious and frivolous for filing two suits over the same suit and obtaining orders from two courts of cocurrent jurisdiction without disclosing the existence of the two suits. vi. That the Application offends Section 16 of the Government Proceedings Act in that there can never be an injunction instituted against the Government. vii. That the suit amounts to an abuse of the court process and should not be entertained by this Honorable Court. The first argument is enshrined under Article 189 of the Constitution and Section 30 of the Inter-Governmental Relations Act No.2 of 2012. Article 189 states:- 13. 1 …. 2 …. 3. In any dispute between governments, the governments shall make every reasonable effort to settle the dispute, including by means of procedures provided under national legislation. 4. National legislation shall provide procedures for settling inter-governmental disputes by alternative dispute resolution mechanisms, including negotiation, mediation and arbitration. Section 31 of the Intergovernmental Act provides that, “ The national and county governments shall take all reasonable measures to— 14. (a) resolve disputes amicably; and, (b) apply and exhaust the mechanisms for alternative dispute resolution provided under this Act or any other legislation before resorting to judicial proceedings as contemplated by Article 189(3) and (4) of the Constitution.” The court agrees with the Respondents that where there are various avenues which it can approach for dispute resolution which under the doctrine of exhaustion, the same must be exhausted before coming to court. The court relies on the case of William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) (2020) eKLR the court held as follows: “ The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts…” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18305/eng@2025-11-03 4

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15. It is thus clear that under Part IV of the Act, the procedure of resolving a dispute is stipulated and under Section 35 of the same Act, judicial proceedings can only be instituted where all efforts of resolving a dispute under this Act has failed. It is therefore clear that the Petition and the Notice of Motion application have been filed prematurely before this court and thus it need not address the Petition and the applications filed herein or the issues raised therein. 16. For that reasons the court finds that the Notice of Preliminary Objection has been raised on a pure point of law and it is thus merited. The upshot is that, in line with the doctrine of exhaustion the Petition and the Notice of Motion applications be and are hereby struck out for want of jurisdiction pursuant with the provisions of Article 189 of the Constitution and Section 31 of the Intergovernmental Act. There shall be no orders as to costs. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 3RD DAY OF NOVEMBER , 2025. D. O. CHEPKWONY JUDGE In the presence of: M/S Odundo holding brief for Mr. Kabata counsel for the Petitioner Mr. Pamba counsel for the 1st Respondent Court Assistant - Martin https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18305/eng@2025-11-03 5

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