https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12887

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION E411 OF 2025** **IN THE MATIER OF: ARTICLES 2(6), 22(2) (a, (3)(d), 23(1), (3) & 165 (3) (a), (b), (d) (I), (II) OF THE CONSTITUTION OF KENYA 2010** **AND** **IN THE MATIER OF CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 26(1 ), (3), 27(1 ), (2), 28, 29( c ), (d), (f), 35, 40(1) (a), (b), (3), (4), 43 (1) (b), (c), (f), 45(1 ), 47 (1 ), (2), 50(1 ), 53 ( c), (d), (2) & 57 (b) and (c) OF THE CONSTITUTION OF KENYA** **BETWEEN** **PETER NJUE KARIITHI ………………………………………….……………………………PETITIONER** **VERSUS** **THE PRINCIPAL SECRETARY, MINISTRY OF INTERIOR &** **NATIONAL ADMINISTRATION………………………………………….……… 1ST RESPONDENT** **THE PRINCIPAL SECRETARY,** **MINISTRY OF LANDS, HOUSING & URBAN DEVELOPMENT……… 2ND RESPONDENT** **THE HON. ATTORNEY GENERAL……………………………………………. 3RD RESPONDENT** **RULING** **(On The Respondents’ Notice of Preliminary Objection dated 19th February, 2026)** 1. Before this Court for determination is the Respondents’ Notice of Preliminary Objection dated 19th February 2026, challenging the jurisdiction of this Court to entertain the Petition dated 30th June 2025. 2. The Petition was instituted by the Petitioner, Peter Njue Kariithi, who describes himself as the registered owner of **Plot No. 1-200, situate at Mathare and** **Service Scheme, Mathare North Area 1,** having allegedly acquired the property lawfully from one Edward Muya Mutongu and thereafter obtained the requisite approvals from the County Government of Nairobi. The Petitioner avers that sometime in April 2024 he received what he terms as an illegal and unreasonable verbal notice requiring him to vacate the property by the end of April 2024. He further alleges that on 21st May 2024, the Cabinet Secretary for the 1st Respondent, accompanied by Administration Police officers and unidentified youths, descended upon Mathare Site and Service Scheme and commenced demolition of structures within the area, including the Petitioner’s four-storey residential apartment, pursuant to a Government directive requiring demolition of properties situated within a 30-metre radius of the Nairobi River. 3. According to the Petitioner, the demolition was undertaken without prior written notice, court orders, consultations, explanations, or provision of alternative accommodation. He contends that the demolition rendered him homeless and exposed him to inhumane living conditions. He further avers that, being over seventy years of age, he endured severe hardship following the demolition and that his children were compelled to discontinue their education in pursuit of alternative accommodation. 4. On the basis of those allegations, the Petitioner claims that the Respondents violated various constitutional rights and fundamental freedoms, including rights guaranteed under Articles 26, 28, 29, 35, 40, 43, 47, 53 and 57 of the Constitution. He also relies on international human rights instruments, including the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), as well as the decision of the Supreme Court of South Africa in ***Tswelopele Non-Profit Organization & Others v City of Tshwane Metropolitan Municipality, 2007 SCA 70 (RSA).*** The Petition seeks, inter alia, permanent and mandatory injunctive reliefs, general, aggravated, exemplary and punitive damages, compensatory damages in the sum of Kshs.18,900,000/=, interest and costs. 5. Before filing any substantive response to the Petition, the Respondents raised a Preliminary Objection dated 19th February 2026 seeking to strike out the Petition and the accompanying application. The objection is predicated on the contention that this Court lacks jurisdiction to hear and determine the dispute by virtue of Article 165(5)(b) of the Constitution, which excludes the High Court’s jurisdiction over matters falling within the jurisdiction of courts established under Article 162(2) of the Constitution. 6. The Respondents contend that the dispute revolves around **Plot No. 1-200 Mathare Site and Service Scheme** and concerns issues of ownership, occupation, compulsory acquisition and compensation relating to land. They argue that such matters fall squarely within the jurisdiction of the Environment and Land Court pursuant to Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, which grants that Court jurisdiction over disputes relating to land use, title, tenure, occupation, compulsory acquisition, land administration and management, as well as any other dispute relating to land and the environment. 7. In their written submissions dated 27th February 2026, the Respondents submit that the sole issue for determination is whether this Court possesses jurisdiction to hear and determine the Petition. They rely on ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696*** for the proposition that a preliminary objection consists of a pure point of law which, if successfully argued, may dispose of a suit. They further place reliance on ***Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1,*** wherein Nyarangi JA stated that “Jurisdiction is everything. Without it, a court has no power to make one more step,” and submit that the issue of jurisdiction must therefore be determined at the earliest opportunity. 8. The Respondents maintain that the gravamen of the Petition concerns rights and interests in land and that the constitutional violations alleged by the Petitioner stem directly from his claimed ownership and occupation of the suit property. They therefore argue that the substance of the dispute falls within the exclusive jurisdiction of the Environment and Land Court. In support of this position, they rely on ***Republic v Karisa Chengo & 2 others [2017] eKLR***, where the Supreme Court affirmed the distinct and exclusive jurisdiction of the superior courts established under Article 162(2) of the Constitution, and on ***Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR,*** where the Supreme Court held that a court’s jurisdiction flows from the Constitution or legislation and cannot be expanded through judicial innovation. 9. The Respondents further submit that the mere fact that a dispute is framed as a constitutional petition does not confer jurisdiction upon the High Court where the substance of the dispute falls within the mandate of a specialised court. In that regard, they rely on ***Azzuri Limited v Pink Properties Limited [2018] eKLR***, arguing that jurisdiction is determined by the true substance of the dispute rather than the language employed in the pleadings. They consequently urge the Court to uphold the Preliminary Objection and strike out the Petition for want of jurisdiction. 10. The Petitioner opposed the Preliminary Objection through a Replying Affidavit sworn in February 2026. He avers that he has read and understood the Preliminary Objection and contends that the same is procedurally incompetent and prematurely filed. The Petitioner asserts that Article 48 of the Constitution guarantees access to justice and points out that the Respondents had not filed any response or defence to the Petition at the time they raised the objection. 11. The Petitioner depones that a preliminary objection must arise from pleaded matters and that the objection offends Order 2 Rule 4 of the Civil Procedure Rules, 2010 because it is not anchored on any defence. In support of that proposition, he relies on ***Stephen Onyango Achola & Another v Edward Hongo Sule & Another (2004) eKLR.*** He further contends that the Respondents were required to specifically plead the issue of jurisdiction in their defence before relying on it as a basis for a preliminary objection. 12. The Petitioner contends that courts should exercise great caution before striking out proceedings and should endeavour to sustain suits rather than terminate them summarily. He maintains that denying a litigant an opportunity to be heard should be a measure of last resort. 13. In the alternative, and without conceding the jurisdictional objection, the Petitioner avers that should the Court find that the Petition was filed before the wrong forum, such error is attributable to counsel and ought not to be visited upon him. He contends that the mistake arose from counsel’s inadvertence, misreading or misconstruction of the law and constitutes an excusable error. He therefore urges the Court to transfer the matter to the appropriate court rather than strike it out. 14. The Petitioner argues that the Petition is not beyond redemption and can be salvaged through transfer to the proper forum. He contends that the Court possesses inherent jurisdiction to transfer proceedings where necessary to remedy omissions occasioned by counsel’s oversight and to ensure substantive justice. He asserts that no prejudice would be occasioned to the Respondents if the matter were transferred and that the interests of justice favour determination of disputes on their merits rather than dismissal on procedural grounds. Accordingly, he urges the Court to dismiss the Preliminary Objection and, in the alternative, to transfer the Petition to the court vested with the requisite jurisdiction. **ANALYSIS AND DETERMINATION** 1. Having considered the Notice of Preliminary Objection dated 19th February 2026, the grounds upon which it is premised, the Respondents’ written submissions and the Petitioner’s response thereto, the Court is of the considered view that only one issue arises for determination: 2. ***Whether the Respondents’ Preliminary Objection dated 19th February 2026 is merited.*** 3. The law governing preliminary objections is now settled. The oft-cited decision in ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696*** remains the locus classicus on the subject. Law JA stated that: ***“So far as I am aware, 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.”*** 1. Sir Charles Newbold P, in the same decision, further 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.”*** 1. The Supreme Court reaffirmed those principles in ***Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR***, where it emphasized that a preliminary objection must be founded upon a pure point of law capable of disposing of the matter without the need for evidentiary interrogation. 2. The Petitioner has opposed the objection on the ground that the Respondents had not filed a response or defence to the Petition and therefore lacked a pleading upon which to anchor the objection. While that argument has been advanced, it cannot override the settled position that a challenge to jurisdiction is a threshold issue that may be raised at any stage of proceedings. 3. In ***Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1,*** Nyarangi JA stated: ***“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.”*** 1. Likewise, the ***Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR*** held: ***“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.”*** 1. Jurisdiction is therefore a pure point of law capable of being raised at the earliest opportunity and, indeed, even by the Court on its own motion. It follows that the absence of a substantive response to the Petition does not render a jurisdictional objection incompetent. 2. The Court must next determine whether the objection raises a pure point of law ascertainable from the pleadings. The Respondents contend that the dispute falls within the exclusive jurisdiction of the Environment and Land Court. 3. A reading of the Petition reveals that the Petitioner claims ownership of **Plot No. 1-200, situate at Mathare and** **Service Scheme, Mathare North Area 1**. He alleges that the suit property was unlawfully demolished by the Respondents, resulting in his eviction and loss of property. He seeks, among other reliefs, permanent injunctive orders restraining eviction, mandatory orders compelling provision of alternative land and accommodation, compensatory damages in the sum of Kshs.18,900,000/= and damages arising from the alleged demolition. 4. The jurisdictional question therefore emerges directly from the Petition itself and does not require the Court to ascertain disputed facts or evaluate evidence. The Court is therefore satisfied that the objection raises a pure point of law and properly qualifies as a preliminary objection within the meaning of ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (supra).*** 5. Having so found, the Court turns to the substantive question of jurisdiction. 6. Article 165(5)(b) of the Constitution provides: “The High Court shall not have jurisdiction in respect of matters falling within the jurisdiction of the courts contemplated in Article 162(2).” 1. Article 162(2)(b) of the Constitution mandates Parliament to establish courts 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.” 1. Pursuant thereto, Parliament enacted the Environment and Land Court Act. Section 13 thereof grants the Environment and Land Court original and appellate jurisdiction over disputes relating to land and the environment, including disputes concerning title, tenure, occupation, compulsory acquisition, land administration and management, and any other dispute relating to land. 2. The Supreme Court in ***Republic v Karisa Chengo & 2 Others [2017] eKLR*** underscored that the courts established under Article 162(2) are distinct superior courts exercising jurisdiction within constitutionally demarcated spheres and that one superior court cannot exercise jurisdiction reserved to another. 3. The Court of Appeal has similarly held that in determining jurisdiction, the Court must look beyond the drafting of the pleadings and ascertain the true nature of the dispute. In ***Co-operative Bank of Kenya Limited v Patrick Kang’ethe Njuguna & 5 Others [2017] eKLR***, the Court of Appeal held that jurisdiction is conferred by the Constitution or statute and not by the parties, and in determining jurisdiction a court must look at the substance of the dispute rather than its form or the manner in which it is pleaded. The same principle was reiterated in ***Azzuri Limited v Pink Properties Limited [2018] eKLR,*** where the Court emphasized that parties cannot confer jurisdiction upon a court by framing an ordinary dispute as a constitutional issue, and that the court must scrutinize the pleadings to ascertain the true nature of the claim. 4. Applying those principles to the present case, it is evident that the foundation of the Petition is the Petitioner’s alleged ownership and occupation of **Plot No. 1-200, situate at Mathare and** **Service Scheme, Mathare North Area 1**, the demolition of structures erected thereon, the resultant eviction, and the compensation allegedly due arising therefrom. Although the Petition invokes a plethora of constitutional provisions and alleges violations of fundamental rights and freedoms, those alleged violations arise directly from the Petitioner’s claim to rights and interests in land. The Court cannot ignore the substance of the dispute and focus solely on the constitutional language employed in the pleadings. The gravamen of the Petition concerns ownership, occupation, use, demolition and compensation relating to land. Those issues fall squarely within the constitutional and statutory jurisdiction of the Environment and Land Court. 5. I therefore agree with the Respondents’ submission that the dispute falls within the ambit of Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, and that this Court's jurisdiction is expressly excluded by Article 165(5)(b) of the Constitution. 6. The Petitioner urged the Court, in the alternative, to transfer the matter to the appropriate court should it find that jurisdiction is lacking. However, having reached the conclusion that this Court lacks jurisdiction ab initio, the Court cannot proceed to take any further step in the proceedings. Jurisdiction is the foundation upon which judicial authority rests. Once that foundation is absent, the Court cannot purport to make substantive orders affecting the matter. As was stated in ***Owners of the Motor Vessel “Lillian S” supra***, where a court finds that it lacks jurisdiction, it must immediately down its tools. 7. Accordingly, I find that the Respondents’ Preliminary Objection dated 19th February 2026 is well founded and meritorious. 8. In the result, the Court makes the following orders: 1. **The Respondents’ Notice of Preliminary Objection dated 19th February 2026 is hereby upheld.** 2. **The Petition dated 30th June 2025, is hereby struck out for want of jurisdiction.** 3. **Given that the Petition has been disposed of on a jurisdictional question without a determination on the merits, each party shall bear its own costs.** Orders accordingly. File closed accordingly. **DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 27TH DAY OF JULY 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **BAHATI MWAMUYE MBS** **JUDGE** **In the presence of:** Counsel for the Petitioner- Mr. Wesonga Counsel for the Respondents- Ms. Opio Court Assistant – Mr. Martin