https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4154

Ali & 2 others v Administration & another (Environment and Land Petition E005 of 2025) [2026] KEELC 4154 (KLR) (7 July 2026) (Ruling) Neutral citation: [2026] KEELC 4154 (KLR) Republic of Kenya In the Environment and Land Court at Garissa Environment and Land Petition E005 of 2025 RO Omondi, J July 7, 2026 ELC PET NO. E005 OF 2025 IN THE MATTER OF: ARTICLES 1, 2, 2, 10, 19, 20, 21, 22, 24, 27, 28, 35, 40, 42, 43, 47, 56, 63, 69, 70, 72, 159, 162, 174, 258, AND 259 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF: SECTIONS 5 OF THE COMMUNITY LAND ACT, 2016 AND IN THE MATTER OF: PETITION BY ABDIKADIR OSMAN ALI, HASSAN ALI BORA AND MOHAMED ALI ABDI CHALLENGING THE CONTRAVENTION AND INFRINGEMENT OF THEIR CONSTITUTIONAL RIGHTS AND THAT OF THE PUBLIC AND IN THE MATTER OF: THE NATIONAL GOVERNMENT COORDINATION ACT, 2013 Between Abdikadir Osman Ali 1st Petitioner Hassan Ali Bora 2nd Petitioner Mohamed Ali Abdi 3rd Petitioner and National Administration 1st Respondent Hon. Attorney General 2nd Respondent Ruling 1.Before this Court for determination is the 2nd Respondent’s Notice of Preliminary Objection dated July 4, 2025, together with the Respondents’ Grounds of Opposition of the same date, directed against both the Petition dated June 20, 2025, and the Notice of Motion of the same date. 2.The objection, in substance, raises two complaints: first, that this Court lacks jurisdiction to entertain the petition and the motion for reasons that it falls within the Constitutional and Human Rights division of the High Court; and second, that the issues raised herein have already been conclusively determined in Garissa HCCHRPET E019 of 2024, Mohamed Abdow Kano & Ahmed Abdi Ali v Cabinet Secretary, Ministry of Interior & Co-ordination & The Attorney General. 3.On June 23, 2025, when the matter came before Mutungi J, for directions, he directed the Petitioners/Applicants to serve the Notice of Motion dated June 20, 2025, upon the Respondents and return for an inter partes hearing on June 24th, 2026. The Petitioners appeared before Mutungi J on June 25, 2025, when he certified the matter urgent and granted prayer 2 on the face of the motion to the effect that:… pending the hearing and determination of the Application and Petition, the Honourable Court be and is hereby pleased to issue an order suspending the implementation of Gazette Notice Number 15341 in Vol CXXVI No. 203 of 22nd November 2024 establishing and operationalising the impugned administrative units namely: Qafolie, Watiti Dini, Karaduse, Danaba North Locations in Wajir North Sub-County; Welmura, Danaba North, Fargadud and Medina Sub-Locations in Wajir North Sub-County; Detachdera, Suraya and Luqe Locations in Buna Sub-County; and Detachdera, Lude and Bero Sub-Locations in Buna Sub-County. 4.He further directed the Petitioners/Applicants to serve the Notice of Motion and the Petition within 3 days, directed the Respondents to file their responses within 7 days of service, and slated the matter for mention on 10th July for directions on the disposal of the application. 5.On July 10, 2025, both counsel for the Petitioners/Applicant, and the Respondent were present, along with Mr. Ochieng, who appeared for the “intended interested parties.” Mr. Ochieng informed the court that he had filed an application dated July 8, 2025, seeking joinder of his clients as interested parties. On the said day, Mr. Sekwe, for the Respondent, notified the court that he had filed the Notice of Preliminary Objection dated July 4, 2025. 6.Consequently, the court directed that both the Notice of Preliminary Objection and the Notice of Motion application for joinder dated July 8, 2025, be heard together, with the effect that, were the preliminary objection to be upheld, the application for joinder would “fall off,” and if not, the application for joinder would become relevant. 7.The court expressly allowed the proposed interested parties to participate in the proceedings on the disposal of the preliminary objection and directed counsel to file submissions on the preliminary objection and the application for joinder. The matter was then stood over for mention to September 24, 2025. 8.On September 24, 2025, the matter seemed to have taken a sudden turn towards a potential out-of-court settlement that never saw the light of day. On that day, the court directed parties to convene a meeting to discuss settlement within 45 days. 9.The matter then came up for mention before Gicheru J on November 26, 2025, to confirm whether the parties had convened the meeting or reached a settlement. The parties’ efforts had borne no fruit, and the court gave a further mention date of February 24, 2026, to confirm progress. 10.Come February 24, 2026, the matter had moved to my brother Kibunja J, before whom the matter was mentioned, and counsel for the Petitioner/Applicant and the counsel for the proposed interested parties confirmed having filed submissions on the preliminary objection dated November 25, 2025, and July 29, 2025, respectively. 11.Setting out the detailed chronology is essential for two reasons. First, it clarifies the involvement of non-parties (“proposed intended parties”) in disposing of the preliminary objection; second, it helps this court decide the fate of the Notice of Motion Application for joinder filed on July 8, 2025, by these non-parties. The application remains pending and seems to have been overlooked amid efforts to resolve the preliminary objection. Counsel did not address the joinder application in their submissions on the preliminary objection, as directed by the court. 12.The counsel representing the Respondents, who initiated the Notice of Preliminary Objection dated July 4, 2025, failed to file submissions as instructed by Mutungi J on July 10, 2025; no such submissions are on record. 13.I have considered the Petition dated June 20, 2025, and the Notice of Motion of the same date, the supporting affidavit of Abdikadir Osman Ali sworn on the same date, the Notice of Preliminary Objection dated 4 July 2025, the respondents’ grounds of opposition of even date, together with the submissions referred to above and authorities supplied by counsel. 14.In the pleadings filed by counsel, I discern that the issues for determination are jurisdictional and procedural in nature and, if they succeed, they are capable of disposing of the matter at this threshold stage. 15.Before I turn to the merits of the objection, I note a discrepancy on the face of the record as placed before me. The petition and motion appear, on their face, to have been drawn for filing in Nairobi; however, the substance thereof points to proceedings that are substantially before me in the Environment and Land Court here in Garissa. It is my considered opinion that the defects of form on the face of the Petition and the motion do not in any way affect the substance before this court; consequently, they are not fatal to the disposal of the impending preliminary objection and are curable under Article 159(2)(d) of the Constitution. B. Background 16.The petitioners challenge the constitutionality and legality of the establishment of a number of administrative units in Wajir North and Buna Sub-Counties through Gazette Notice No. 15341, Vol. CXXVI, No. 203 of November 22, 2024. Their case, as pleaded, is that the gazettement occurred without prior adequate public participation and in a manner that threatens community grazing lands, socio-economic rights, environmental rights, equality, access to information and fair administrative action. 17.In the Petition, the petitioners seek, among other reliefs, declarations that the impugned administrative units are unconstitutional and void; that the timing and conduct of the purported public participation are unconstitutional; an order of certiorari quashing Gazette Notice No. 15341, Vol. CXXVI, No. 203 of 22 November 2024; compensation; costs; and further appropriate relief. 18.In the Notice of Motion, the petitioners seek urgent interim relief, including certifying the matter as urgent, suspending implementation of the Gazette Notice pending the hearing of the application and petition, and halting the intended public participation process, which was scheduled for June 24, 2025, and is now past. 19.The supporting affidavit states that the affected areas are vital grazing lands for the Ajuran community; that the Gazette NoticeNo. 15341was issued without prior adequate public participation; that this procedural defect had been condemned by the High Court at Garissa in HCCHRPET E019 of 2024, Mohamed Abdow Kano & Ahmed Abdi Ali v Cabinet Secretary, Ministry of Interior & Co-ordination & The Attorney General Constitutional Petition No. E019 of 2024; and that the 1st Respondent thereafter scheduled public participation sessions from 24 June 2025 in a manner said to be inaccessible, exclusionary, conducted in English only, geographically remote, and in some instances scheduled at odd hours. 20.The Petitioners invoke the jurisdiction of this court under section 13 of the Environment and Land Court Act, on the basis that the impugned gazette notice threatens community grazing lands, socio-economic rights, environmental rights, equality, access to information, and fair administrative action. They argue that section 13 of the Act, read together with Article 162(b) of the Constitution, vests this court with jurisdiction to hear and determine disputes arising from violations of constitutional rights. 21.The Petitioners aver that the existence of HCCHRPET E019 of 2024, Mohamed Abdow Kano & Ahmed Abdi Ali v Cabinet Secretary, Ministry of Interior & Co-ordination & The Attorney General Constitutional Petition No. E019 of 2024, is not a fetter on this court, preventing it from determining the violation of the Petitioners’ constitutional right through the publication of Gazette Notice No. 15341, Vol. CXXVI, No. 203 of November 22, 2024. This is because the High Court, sitting as a constitutional court in Human Rights, does not have concurrent jurisdiction with this court when it sits as a constitutional court in matters of constitutional violations relevant to land. 22.The Petitioners, in their submissions, framed two issues for determination. First, whether the preliminary objection is merited, and second, whether the Petitioners/Applicants have met the threshold for the grant of the interim orders sought in the Notice of Motion application dated June 20, 2025. 23.While the first issue speaks directly to the disposition of the preliminary objection, I find that the second issue would be relevant only if the Notice of Motion application dated June 20, 2025, survives the preliminary objection; therefore, it is inappropriate to consider it at this stage, alongside the preliminary objection. 24.The Respondents in their Grounds of Opposition dated July 4, 2025, filed with the preliminary objection, oppose the matter on the basis that the application is incompetent; that the issues raised have already been conclusively determined in Garissa HCCHRPET E019 of 2024 and; that this Court has no power or jurisdiction over judges of superior courts or to review or stay decisions of other superior courts; that the impugned public participation exercise was in fact ordered in the judgment of 30 April 2025 delivered in Garissa HCCHRPET E019 of 2024; and that the issues raised are matters of enforcement of the Bill of Rights and therefore, according to the respondents, fall within the preserve of the Constitutional and Human Rights Court. 25.They contend that entertaining the Petitioners/Applicants’ application will be tantamount to this court sitting on an appeal from a decision of another Division of the same Court. Whatever the Respondent’s argument may be worth, I remind them that the Environment and Land Court is not a division of the High Court but a court of equal status with it. 26.In their submissions dated July 29, 2025, in support of the preliminary objection, the proposed interested parties argued that this court’s jurisdiction, derived from the conjunctive reading of Article 162(2)(b) and section 13 of the Environment and Land Court Act, does not extend to determining public participation held during the creation of administrative units. 27.The proposed interested parties asserted that the issues concerning grazing rights and grazing land served merely as a smokescreen to justify the inappropriate invocation of this court’s jurisdiction. They relied on the case of Kinuthia v Kanyi & Another (Environment & Land Case E007 of 2023) [2024] KEELC 1625 (KLR) (20 March 2024) to support the argument that the predominant issue before the court was the determination of public participation during the creation of administrative units, rather than the tangential matter of community grazing lands and environmental rights. 28.They also cited the now-famous Supreme Court decision in Republic v Karisa Chengo & 2 Others [2007] to support the proposition that the jurisdictions of both the High Court and this court are well demarcated and should not be conflated. On the strength of the locus classicus on jurisdiction, Owners of Motor Vessel Lilian “S” v Caltex, they invited this court to down its tools. 29.Further, relying on the case of John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015) [2021], the Proposed Interested Parties argued that the Petitioners’/Applicants’ petition and application offended the principle of res judicata. C. Issues for Determination 30.In light of the foregoing, the following two issues, in my view, fall for determination:i.whether the objection as raised is a proper preliminary objection in law;ii.whether this Court has jurisdiction to hear and determine the petition and the Notice of Motion both dated June 20, 2025; D. Analysis and Determination i) Whether the objection as raised is a proper preliminary objection in law 31.The law on what constitutes a preliminary objection is settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, as restated by the Supreme Court in Adega & 2 others v Kibos Distillers Limited & 5 others [2020] KESC 36 (KLR),: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 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. [Emphasis added]. 32.The court therefore focuses on the law and is not required to ascertain contested facts, examine evidence, or exercise judicial discretion. The respondents’ objection is on all fours with the foregoing criteria and meets the required threshold. 33.The complaint here is not directed to contested evidential matters of merit. Rather, it raises a jurisdictional bar and a plea of prior determination by a court of competent jurisdiction, both of which, in principle, are amenable to determination at a threshold stage, so far as they are ascertainable from the pleadings and the court record. 34.Indeed, the Petitioners themselves rely on the earlier proceedings in Garissa HCCHRPET E019 of 2024, as set out in paragraph 5 of their affidavit in support of the motion, and they annex the resulting judgment of Onyiego J, dated April 30, 2025. i. Whether this Court has Jurisdiction to hear and determine the Petition and the Notice of Motion, both Dated June 20, 2025? 35.It is equally settled that jurisdiction flows from the Constitution or legislation. A court may not, through craft of pleadings or generosity of interpretation, confer jurisdiction upon itself where none exists. That principle has been repeatedly affirmed by the Supreme Court, including in Adega & 2 others v Kibos Distillers Limited & 5 others [2020] KESC 36 (KLR), which also reiterates the holding in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others that a court can exercise only such jurisdiction as is conferred by the Constitution or other written law. 36.I begin with the constitutional framework. Article 162(2)(b) of the Constitution requires Parliament to establish a court with the status of the High Court to hear and determine disputes relating to the environment and the use and occupation of, and title to, land. Article 165(5)(b) correspondingly restrains the High Court from matters falling within the jurisdiction of the Article 162 courts. 37.At the same time, Article 165(6) gives the High Court supervisory jurisdiction over subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. Community land, including grazing areas, is constitutionally recognized under Article 63, while Articles 10, 47, 69 and 174 entrench public participation, fair administrative action, environmental obligations and participatory devolutionary governance. 38.There is therefore no difficulty in accepting, as a general proposition, that disputes genuinely centered on community land, environmental management, land use, and associated rights may fall within the competence of the Environment and Land Court. Nor is it correct to say, in absolute terms, that every petition invoking the Bill of Rights belongs only to the High Court constitutional division. 39.Recent Supreme Court jurisprudence rejects such overbreadth. In Kenya Tea Growers Association & 2 others v The National Social Security Fund Board of Trustees & 13 others [2024] KESC 3 (KLR), the Supreme Court held that a specialized superior court is not precluded from deciding the constitutional validity of a statute where that issue lies at the center of a dispute otherwise falling within its mandate. 40.But that same Supreme Court decision is equally clear that the High Court and the specialized superior courts established under Article 162 are different and autonomous courts exercising different and distinct jurisdictions. The Court held that a specialized court cannot “sit as if it were the High Court” in circumstances where the dispute before it has nothing or little to do with the subject matter assigned to it, and it emphasized that the High Court retains the residual jurisdiction, as between it and the Article 162 courts, in relation to applications for redress under Articles 22 and 23 of the Constitution. 41.The real difficulty in the present matter, however, is narrower and more immediate than the abstract division of constitutional jurisdiction between the High Court and the ELC. The respondents say that the impugned public participation process was ordered in the judgment delivered on April 30, 2025, in Garissa HCCHRPET E019 of 2024. The petitioners’ own affidavit confirms the existence of prior Garissa constitutional litigation in which the defect of lack of participation had already been condemned. Yet, in the present motion, the petitioners seek orders suspending implementation of Gazette Notice No. 15341, Vol. CXXVI, No. 203 of November 22, 2024, and stopping the intended public participation process. 42.In my respectful view, once placed in that posture, the present matter ceases to be merely a fresh land-and-environment petition. It becomes, in substance, an invitation to this Court to grant relief inconsistent with, or destructive of, the legal effect of a judgment of a coordinate superior court. That this Court cannot do. 43.The constitutional design does not permit one superior court to supervise another. Nor can a court of coordinate status sit on appeal over the decision of another such court. The proper avenues, where a complaint is made about the correctness, scope, implementation, clarification, or compliance with an earlier judgment of a superior court, are ordinarily the court that issued that judgment or the proper appellate forum. 44.I am therefore not persuaded that I should determine this objection by making a broad pronouncement that the Environment and Land Court lacks jurisdiction in every matter where fundamental-rights language is used. I do not so hold. Instead, I hold to the narrower and firmer ground that this petition and motion are incompetent before this Court because the reliefs sought would, if granted, have the effect of reviewing, suspending, or neutralizing steps allegedly flowing from the judgment of a coordinate superior court in Garissa HCCHRPET E019 of 2024. In that respect, this Court lacks jurisdiction. 45.That conclusion is sufficient to dispose of the matter. But even if I were wrong about my primary holding, I would still find the present suit fatally problematic on preclusion and abuse-of-due-process grounds. The respondents’ objection expressly states that the issues raised herein were conclusively determined in Garissa HCCHRPET E019 of 2024. The petitioners do not deny the existence of that suit; rather, they annex and rely on it. 46.To the extent that the present petition seeks once again to impeach the legality of the original gazettement on the ground that it was undertaken without prior public participation, that matter appears, on the face of the material before me, to have been litigated already. 47.On the other hand, if the petitioners’ true grievance is that the respondents have now conducted, or propose to conduct, the post-judgment public participation process in a defective, exclusionary, or unreasonable manner, that complaint is not properly redressed by launching a fresh collateral petition before a coordinate superior court. It should be placed before the court seized of the earlier matter for appropriate directions, enforcement, clarification, or such other relief as that court may lawfully grant, or before the appropriate appellate forum. On either understanding of the matter, the present proceedings cannot properly be maintained before this Court. E. Appropriate Reliefs 48.In the dicta of Owners of Motor Vessel Lillian “S” v Caltex, when a court finds that it lacks jurisdiction, it must lay down its tools. The ordinary and prudent course is to strike out the proceedings and allow the Petitioners to pursue relief in the appropriate forum should they deem it fit to do so.1.I am also mindful that the dispute, as framed, concerns public participation, local governance, community land, grazing rights, and public-law issues of obvious local importance. In those circumstances, the more balanced order on costs is that each party bears its own costs.2.Further, the proposed interested parties’ Notice of Motion application for joinder, dated July 8, 2025, remains on the record, undetermined, and still stands out like a sore thumb. Suffice it to say, it has been overtaken by this court’s finding that it lacks jurisdiction to entertain the petition and the notice of motion predicated thereupon. F. Disposition 51.For the reasons given above, I make the following orders:i.The 2nd Respondent’s Notice of Preliminary Objection dated July 4, 2025, is hereby upheld.ii.The Petition dated June 20, 2025, and the Notice of Motion application of the same date are hereby struck out.iii.The proposed interested parties' Notice of Motion application dated July 8, 2025, for joinder is marked as spent, and the file is closed.iv.Each party shall bear its own costs.Orders accordingly. DATED, SIGNED AND DELIVERED AT GARISSA THIS 7TH DAY OF JULY 2026.DR. OMONDI R. OWINO, FCIArbELC JUDGEDelivered virtually on the teams platformIn The Presence Of:Ms Chanimbaga H/b For Mr. Willis Otieno For The PetitionerMr Sekwe For The Attorney GeneralN/a For Proposed Interested PartiesMr Dabar Mohamed Court Assistant