https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3568

Drylands Resilience Action formerly Waso Trust Land Project v Christensen Fund & 2 others (Environment and Land Petition E001 of 2026) [2026] KEELC 3568 (KLR) (2 June 2026) (Ruling) Neutral citation: [2026] KEELC 3568 (KLR) Republic of Kenya In the Environment and Land Court at Isiolo Environment and Land Petition E001 of 2026 JO Mboya, J June 2, 2026 Between Drylands Resilience Action formerly Waso Trust Land Project Petitioner and The Christensen Fund 1st Respondent Dr Hassan Guyo Roba 2nd Respondent Pastoralist Alliance for Resilient Adaption Across Nationals (Paraan) 3rd Respondent Ruling 1.Before me is the Notice of Motion Application dated the 28.04.2026; pursuant to the provisions of Order 2, Rule 15 of the Civil Procedure Rules, 2010; Sections 1A and 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya; and Rule 19 of the Constitution of Kenya [Protection of Rights and fundamental Freedoms]; and the Inherent jurisdiction of the court; and wherein the 1st and 2nd Respondents [herein after referred to as the applicants] have sought the following reliefs:I.This application be certified as urgent; service thereof be dispensed with in the first instance; and prayer 2 be granted ex parte.II.Pending the hearing and determination of this application, there be a stay of proceedings in respect of the petitioner’s notice of motion and the petition both dated 11th March, 2026.III.This application be heard and determined in priority to the petitioner’s notice of motion and the petition both dated 11th March, 2026.IV.The petition dated 11th March, 2026 and all documents filed in relation thereto be struck out.V.The petitioner do pay the 1st and 2nd respondents legal costs on an indemnity basis. 2.The subject application is premised on various grounds which have been enumerated on the face thereof. The grounds are numerous and prolix in nature. Nevertheless, the grounds discernable can be summarized thus: The 1st respondent entered into a contract/agreement with the petitioner; the contract/agreement was in respect of a grant in favor of the petitioner; the grant was philanthropic; the grant was to be used by the petitioner for assorted purposes; the agreement contained an exclusive foreign jurisdiction clause; the dispute [if any] arising from the agreement was to be dealt with exclusively in any California state in the United State of America; or in the USA Federal Court siting in the city and county of San Francisco – California; and this court is divested of jurisdiction to entertain the jurisdiction to entertain the petition/dispute. 3.Additionally, it has been contended thus: the agreement between the 1st respondent and the petitioner came to an end; the petitioner was duly notified; the petitioner has no legitimate claim as against the 1st and the 2nd respondents. The petition beforehand does not disclose any reasonable cause of action; and the petition constitute and abuse of the due process of the court. 4.Furthermore, the applicants have also contended thus: The issues raised by the petitioner arose/occurred in the year 2020. The claims have been brought to court more than five [5] years after the final grant; the petitioner has approached the court with unreasonable and undue delay; the petition is defeated by the doctrine of Laches; and the petition is therefore vexatious. 5.The subject application is supported by a lengthy/argumentative affidavit sworn by Mathew Aguial. The supporting affidavit is sworn on the 28.04.2026. The supporting affidavit references various annexures which have been marked as a bundle. The annexures alluded to essentially relates to the agreement that was entered between the 1st respondent [grantor] and the petitioner herein. The contents of the supporting affidavit have reiterated and reaffirmed the grounds contained in the body of the application. 6.The petitioner/respondent filed a replying affidavit and wherein same has denied and disputed the averments at the foot of the application and the contents of the supporting affidavit. Furthermore, the petitioner/ respondent has averred thus: The 1st respondent duly entered various agreements with the petitioner; the petitioner accessed various grants from the 1st respondents; the 1st respondent stopped to remit the grants to the petitioner; the 1st respondent did not afford the petitioner any opportunity to be heard before the stoppage; the 1st respondent also did not avail/ supply any reasons for the stoppage of the grant; the stoppage of the grant has affected the various indigenous and marginalized communities represented by the petitioner; and the actions of the 1st respondent are unconstitutional. 7.Moreover, the petitioner has also posited thus: The petitioner sought to know the reasons for its exclusion from benefiting from the grant; the 1st respondent failed to proffer any valid reasons. The 1st respondent has equally declined to re-admit the petitioner to the program/grant; the actions complained of have breached/violated the petitioner’s right under the provisions of Articles 10, 35,36, 40, 42, 47 and 56 of the Constitution, 2010. 8.The 3rd respondent filed a Notice of preliminary objection dated the 20.04.2026 and wherein the said respondent raised three [3] key issues: The issues raised are: The petition does not canvass matters that touch on the Environment and Land; the court is divested of the requisite jurisdiction and the petition does not raise or canvass any reasonable cause of action. 9.The matter came up for directions on the 05.5.2026. The advocates for the parties agreed to canvass and dispose of the application and the preliminary objection simultaneously. The court thereafter proceeded to and issued directions pertaining to the hearing and disposal of the application and the preliminary objection. 10.The directions by the court were: The applicants and the 3rd respondent shall file and serve their written submissions within 7 days from the date of the directions; the petitioner shall file and serve written submissions within 7 days from the date of service; the applicants shall be at liberty to file rejoinder submissions [if any] before the return date. 11.The Applicants filed written submissions dated the 15.05.2026 and wherein the applicants have raised and canvassed three [3] key issues. The issues are: The agreement between the 1st respondent and the petitioner contained an exclusive foreign jurisdiction clause; this court is devoid of jurisdiction to entertain the subject jurisdiction; and the petition has been mounted with unreasonable delay and same is therefore vexatious. 12.The 3rd respondent filed written submissions dated the 11.05.2026 and wherein the same has canvassed two [2] key issues. The issues are: The issues raised vide the petition do not fall within the jurisdiction of Environment and Land Court and the petition does not disclose any reasonable cause of action. 13.The petitioner filed written submissions dated the 14.05.2026 and wherein same has highlighted five key issues. The issues are: The application for striking out does not meet the threshold for striking out; the honorable court is seized of the requisite jurisdiction to entertain the subject petition; the exclusive foreign jurisdiction clause is contrary to and in violation of the Constitution 2010; the law of limitations does not apply to constitutional petitions; and the 2nd respondent has been properly impleaded. 14.Having reviewed the application; the preliminary objection; the grounds of opposition filed to the application and the replying affidavit thereto; and upon consideration of the written submissions filed by/on behalf of the respective parties, three [3] key issues crystalize for consideration and determination. The issues are: Whether this honorable court is seized of the requisite jurisdiction to entertain the subject application; whether the petition discloses any reasonable cause of action; and whether the petition amounts to an abuse of the due process of the court. 15.Regarding the first issue, it is important to recall and reiterate that the petitioner contends that same entered into various agreements with the first respondent for purposes of grants, which were being offered by the 1st respondent to and in favour of the petitioner. The various agreements which underpin the subject application have been exhibited by both the petitioner and the 1st respondent, respectively. 16.It is instructive to note that the various agreement[s] whose contents are clear and explicit contain an exclusive foreign jurisdiction clause. In particular, clause number 13 of the Grant Agreement dated 10.07.2019, being the last agreement executed between the parties stipulated thus:“This agreement is governed by the laws of the states of California, excluding any laws that direct the application of another jurisdictions laws. For the purpose of any action or proceedings arising out of or relating to this agreement, the Christensen fund and the grantee agree that all claims in respect of such actions or proceedings shall be heard had determined exclusively in any California state or U S Federal Court sitting in the city and county of San Francisco, California and submit to the jurisdiction of such courts.” 17.The clause which has been reproduced in the preceding paragraph is clear and explicit. Furthermore, there is no gainsaying that the petitioner herein, unequivocally covenanted to bind himself to the terms of the grant agreement. It is common ground that courts of law exist to interpret and apply the terms of the agreements/contracts entered into by the parties; and not to re-write, or modify the contracts for and on behalf of the parties. 18.In the case of Centurion Engineers & Builders Limited v Kenya Bureau of Standards [2023] KECA 1289 (KLR, the Court of Appeal reiterated and reaffirmed the obligation of the court when it comes to dealing with agreements and contracts. 19.The court stated thus:As this Court has severally stated, and now a longstanding principle of law, that parties to contract are bound by the terms and conditions thereof, and that it is not the business of courts to rewrite such contracts. In National Bank of Kenya Limited v Pipe Plastic Samkolit (K) Ltd [2002] 2 EA 503 [2011] eKLR at 507, this Court stated:“A court of law cannot rewrite a contract between parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded or proved.” See also Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited [2017] eKLR. 20.In my humble view, the petitioner herein entered into and executed the grant agreement with the 1st respondent for purposes of receipt of the Grant; and same was privy to and aware of the exclusive foreign jurisdiction clause. The petitioner cannot now turn back and mount the dispute which turns around/ concerns [sic] the impugned contract before this court. 21.Other than the exclusive foreign clause, it is also worthy to point out that the entirety of the petition does not raise or canvass any matter/issue that falls within the jurisdiction of this court. Suffice it to state that the jurisdiction of this court as far as the interpretation and application of the constitution is circumscribed to matters falling within the provisions of Articles 40, 42, 69 and 70 of the constitution, 2010. Notably, the jurisdiction is not at large. Neither is the jurisdiction unlimited, like the one for the High Court in terms of Article 165 [3] of the Constitution, 2010. 22.However, it is not lost on me that the petition before me is said to be anchored on the provisions of Articles, 10, 27, 35, 36, 47 and 56 of the constitution, 2010. Furthermore, even though Articles 40 and 42 of the Constitution have been ‘sneaked in’ and referenced at prayer number one of the petition, there is nowhere in the body of the petition wherein any such averments have been alluded to or highlighted. 23.Additionally, there is no gainsaying that the petitioner has not provided any particulars pertaining to breach/violation of the provisions of Articles 40 and 42 of the Constitution 2010. Simply put, the petition beforehand, does not fall within the jurisdiction to this court. 24.I am alive to the legal position that the jurisdiction of a court must be donated by a constitution or the constitutive charter [state]. Moreover, where the jurisdiction has not been granted then a court of law cannot be engaged with the matter. In addition, where a court engages with a matter that does not fall within its jurisdiction, the proceedings and the resultant decision [if any] are a nullity. 25.In the case of Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR), the Supreme Court underscored the question of jurisdiction and the source thereof. The apex court stated thus: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. We agree with counsel 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. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. 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. 26.The second and third issues are interrelated and intertwined. To this end, I propose to deal with and address the two issues together. Instructively, the petitioner and the 1st respondent entered into and executed various grant agreements, the last of the grant agreements was executed on the 10.07. 2019 and same lapsed/terminated on 31.12.2020. In this regard, what is common ground is that there is no further agreement in existence. 27.Be that as it may, the petitioner is before this court vide the petition dated the 11.03.2026; and same is seeking and order to compel the 1st respondent to re admit the petitioner to the program and to be entitled to the grants, which were hitherto being provided by the 1st respondent. 28.Despite the vague and omnibus allegations/assertions that colour the petition by/on behalf of the petitioner, what comes out is that the petitioner is seeking to use the machinery of the court to compel the 1st respondent to enter into and execute a fresh grant agreement. In simple terms, the petitioner is seeking to use the court to compel the 1st respondent to enter into an agreement with it and to force the 1st respondent to extend the grant, which are philanthropic in nature, to the petitioner. 29.I am afraid that a court of law cannot be used to create a contract for and in favour of the petitioner. In addition, a court of law can also not be used to compel a person, in this case, the 1st respondent to extend a grant to the petitioner. 30.To my mind, the petitioner herein is not only being mischievous by presenting the subject petition, but same is also guilty of abuse of the due process of the court. Suffice it to state that acts which constitutes and ammounts to abuse of the due process of the court are various, nay, numerous. The determination of whether and act constitute[s] an abuse of the due process of the court is undertaken on case by case basis. 31.In the case of Rutongot Farm Ltd v Kenya Forest Service & 3 others [2018] KESC 27 (KLR), the Supreme court addressed the concept of abuse of the due process of the court. The apex court stated thus:The concept of “abuse of the process of the Court” bears no fixed meaning, but has to do with the motives behind the guilty party’s actions; and with a perceived attempt to manoeuvre the Court’s jurisdiction in a manner incompatible with the goals of justice. The bottom line in a case of abuse of Court process is that, it “appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak to be beyond redemption…”….Beyond that threshold, lies an unlimited range of conduct by a party that may more clearly point to an instance of abuse of Court process.” 32.The concept of abuse of the due process of the Court was also highlighted in the case of Satya Bharma Gandhi versus The Director of Public Prosecution and Another [2018] eklr. 33.The court stated thus:29.This obstacle to the efficient administration of justice is not immovable. Courts need not and should not wait for lawyers and litigants to initiate proceedings where there is substantial reason to believe that the processes of the court have been abused. Tampering with the administration of justice in the manner indisputably shown here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public, institutions in which such abuse cannot complacently be tolerated consistently with the good order of society. Surely it cannot be that preservation of the integrity of the judicial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception, fraud and blatant abuse of judicial processes.30.All courts have an inherent or implied jurisdiction to prevent their processes from being used as an instrument of oppression. Courts are able to modify their procedures to avoid such prejudice and take any steps that are necessary to prevent an abuse of process.[20]The concept of abuse of process extends to the use of the court’s processes in a way that is inconsistent with two fundamental requirements arising in Court proceedings. These are, first, that the Court protect its ability to function as a Court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that unless the Court protects its ability to function in that way, its failure will lead to an erosion of public confidence. The court’s processes will be seen as lending themselves to oppression and injustice.[21]31.The concept of abuse of process overlaps with the obligation of a Court to provide a fair trial. The content of these obligations cannot, however, be stated exhaustively or analytically. These obligations rely on intuitive judgments formed by experience.[22]The obligation on a court is to provide a fair trial in accordance with law. The due administration of justice is a continuous process. Courts must be vigilant to ensure that public confidence in the administration of justice is maintained 34.I do not wish to belabor the point. Nevertheless, there is no gainsaying that the subject petition, whose net effect is to use the machinery of the court to coerce., nay, compell the 1st respondent to re-admit the petitioner to its [1st respondent programm] and to extend the philanthropic grants unto same [petitioner], constitutes and ammounts abuse of the court process. Conclusion: 35.It is trite and established that a court of law can only engage with and entertain a dispute that falls within its jurisdiction. In addition, it is common ground that jurisdiction is everything; and without jurisdiction, a court of law cannot move even an inch further. 36.Additionally, it is not lost on me that the jurisdiction of this court is circumscribed. Unlike the High Court, which has unlimited jurisdiction in terms of interpreting and applying the constitution by dint of Article 165 [3] of the Constitution, this court can only deal with matters that fall within the purview of Articles 40, 42, 69 and 70 of the constitution. Period. 37.In the premises, I am afraid that the vaguely worded petition dated 11.03.2026, does not fall within the specialized jurisdiction of the environment and land court. Simply put, the dispute beforehand [if at all it can be described as such] is outside the scope of Article 162 [2] [b] of the constitution, 2010. Final orders: 38.Flowing from the analysis hereinbefore, the final orders that commend themselves to the court are:i.The Notice of Motion Application dated the 28.04.2026 be and is hereby allowed.ii.The Preliminary Objection dated the 20.04.2026 be and is hereby allowed.iii.The petition dated the 11.03.2026 be and is hereby struck out.iv.Costs of the Application and the Preliminary objection be and are hereby awarded to the respondents in the petition.v.Costs of the petition be and are hereby awarded to the Respondents.vi.The costs in terms of clause [iv] and [v] above shall be agreed upon and in default be taxed in the conventional manner. 39.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU THIS 2ND DAY OF JUNE , 2026.OGUTTU MBOYA, FCIArb;CPM[MTI-EA]JUDGEIn the presence of-:Court Assistant: Mukami/ZakayoMr. Mwirigi Bhatista holding brief for Mr. Asaba for the petitionerMs. Wataka Odada for the 1st and 2nd respondentsMr. Alphonce Barrack for the 3rd Respondent