[2022] KEELC 1893 (KLR)
The court held that the issue of jurisdiction, raised by way of preliminary objection, must be determined before any other interlocutory applications. This is because jurisdiction is foundational to the court's ability to hear and determine a matter. If the court were to proceed with other applications and later...
Source-derived case information.
- Citation
- [2022] KEELC 1893 (KLR)
- Parties
- Applicant: Giciri Thuo; Applicant: Wanjiku Mungai; Applicant: John Kariuki Kimani; Applicant: Peter Ng’ang’a Njonjo; Applicant: Annah Wanjiku Ngugi; Applicant: Mercy Wambui Njuru; Respondent: National Land Commission; Respondent: Mama Ngina University College; Respondent: Kenyatta University; Respondent: Ministry of Education; Respondent: Commission for University Education; Respondent: Kenya Human Rights Commission; Respondent: Dorcas Wairimu Kamau & 154 Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Thika
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E010 of 2021
- Procedural Posture
- Constitutional Petition / Ruling on Case Management and Order of Hearing Preliminary Objection
- Outcome
- Preliminary objection to be heard and disposed of first before any other applications.
- Judges
- BM Eboso
- Legal Topics
- Jurisdiction of Court, Preliminary Objection, Case Management, Conservatory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Giciri Thuo
Applicant
Wanjiku Mungai
Applicant
John Kariuki Kimani
Applicant
Peter Ng’ang’a Njonjo
Applicant
Annah Wanjiku Ngugi
Applicant
Mercy Wambui Njuru
Applicant
National Land Commission
Respondent
Mama Ngina University College
Respondent
Kenyatta University
Respondent
Ministry of Education
Respondent
Commission for University Education
Respondent
Kenya Human Rights Commission
Respondent
Dorcas Wairimu Kamau & 154 Others
Respondent
Procedural Posture
Constitutional Petition / Ruling on Case Management and Order of Hearing Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection on jurisdiction should be heard and determined before other interlocutory applications.
- 2 Whether the court should prioritize the application for conservatory orders or the application for joinder of interested parties.
Ratio Decidendi
The court held that the issue of jurisdiction, raised by way of preliminary objection, must be determined before any other interlocutory applications. This is because jurisdiction is foundational to the court's ability to hear and determine a matter. If the court were to proceed with other applications and later find it lacks jurisdiction, all proceedings and resources expended would be wasted. The court relied on the principle established in Owners of Motor Vessel ‘Lilian S’ v Caltex Oil (Kenya) Ltd, which mandates that jurisdictional questions take precedence over all other matters. Accordingly, the court directed that the preliminary objection be heard and disposed of first, with...
Court Disposition
Preliminary objection to be heard and disposed of first before any other applications.
Orders
- The preliminary objection shall be disposed of first.
- The preliminary objection will be heard through brief oral submissions in the virtual court on 9/2/2022 at 11:00 a.m.
Full Case Text
Judgment text and source record
34 paragraphs
THE REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT THIKA
ELC PETITION NO E010 OF 2021
GICIRI THUO................................................................................................1ST PETITIONER
WANJIKU MUNGAI................................................................................... 2ND PETITIONER
JOHN KARIUKI KIMANI..........................................................................3RD PETITIONER
PETER NG’ANG’A NJONJO..................................................................... 4TH PETITIONER
ANNAH WANJIKU NGUGI....................................................................... 5TH PETITIONER
MERCY WAMBUI NJURU.........................................................................6TH PETITIONER
-VERSUS -
NATIONAL LAND COMMISSION...........................................................1ST RESPONDENT
MAMA NGINA UNIVERSITY COLLEGE..............................................2ND RESPONDENT
KENYATTA UNIVERSITY........................................................................3RD RESPONDENT
MINISTRY OF EDUCATION...................................................................4TH RESPONDENT
COMMISSION FOR UNIVERSITY EDUCATION................................5TH RESPONDENT
KENYA HUMAN RIGHTS COMMISSION........................................INTERESTED PARTY
DORCAS WAIRIMU KAMAU & 154 OTHERS.......INTENDED INTERESTED PARTIES
RULING
1. The court is seized of three interlocutory items: (i) the petitioners’ application for conservatory orders dated 25/11/2021; (ii) the intended interested parties’ application dated 23/1/2022; and (iii) the preliminary objection by the 2nd and 3rd respondents, dated 26/1/2022. Parties are not able to agree on how the items should be disposed. Counsel for the 2nd and 3rd respondents has urged that the preliminary objection be disposed first because it raises the question as to whether this court has jurisdiction to entertain this dispute or not. All the other respondents in the petition concur with them on that view. The petitioners hold a different positon, and contend that the preliminary objection should be considered alongside their application for conservatory relief. The intended interested party is of the view that their application for joinder should be considered first.
2. I have considered the oral submissions of counsel on the issue. Nyarangi JA in Owners of Motor Vessel ‘Lilian S’ v Caltex Oil (Kenya) Ltd (1989) 1 KLR articulated the procedure to be followed whenever a question of jurisdiction is raised. Because jurisdiction is everything, a question of jurisdiction takes precedence over all other questions in a suit.
3. I therefore agree with counsel for the 2nd and 3rd respondents that the preliminary objection should be disposed first. Secondly, were this court to consider the question of jurisdiction simultaneously with other questions and it turns out that the court does not have jurisdiction, the time, the energy and the resource spent by the court and by the parties in disposing the other items will all stand wasted.
4. Consequently, I direct that the preliminary objection be disposed first. It will be disposed through brief highlights of oral submissions in the virtual court on 9/2/2022 at 11. 00 a.m. Parties shall file and exchange brief written submissions before then.
DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 27TH DAY OF
JANUARY, 2022
B M EBOSO
JUDGE
In the Presence of: -
Mr Malenya for the Petitioners
Mr Njoroge Regeru and Mr Thuo for the 2nd and 3rd Respondent
Ms Masinde for the 1st Respondent
Mr Fatma for the 4th and 5th Respondents
Ms Kubai for the intended interested parties
Court Assistant: Phyllis Mwangi