https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8809

Macharia v Delmonte Kenya Ltd & another (Petition E810 of 2025) [2026] KEHC 8809 (KLR) (Constitutional and Human Rights) (23 June 2026) (Ruling) Neutral citation: [2026] KEHC 8809 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E810 of 2025 RE Aburili, J June 23, 2026 Between Gladys Muchechi Macharia Petitioner and Delmonte Kenya Limited 1st Respondent Pioneer International Schools Limited 2nd Respondent Ruling 1.This matter is due for mention The Petitioner’s counsel is absent. However, the 1st respondent’s counsel is present and the court has inquired on the origin of the eviction or vacant possession orders which the 1st respondent is alleged to have been enforcing against the 2nd respondent, which facts are not disclosed in the petition. 2.From the submissions by counsel for the 1st respondent, it is apparent that there is serious non-disclosure of material facts by the petitioner. First, is that there is judgment in Environment and Land Court vide E1245/2025 which was rendered on 10/12/2025 evicting the 2nd respondent from the land Reference Number, 12157/2, said to belong to the 1st respondent herein and subsequently, the 2nd respondent appealed to the Court of Appeal, sought and obtained a stay of eviction vide CA E734/2025 which appeal is pending delivery of Judgment set for 30/10/2026. 3.The prayers in the petition dated 8/12/2025 among others, seek a conservatory order staying enforcement of eviction and vacant possession orders by the 1st respondent but there is no disclosure of whether the orders were made by an Environment and Land Court which orders are subject of an appeal with a stay in place, or how those orders came about. 4.This court has no jurisdiction to stay orders issued by the Environment and Land Court in Environment and Land Court proceedings and neither is it possessed of jurisdiction to hear and determine disputes relating to the Environment and the use and occupation of and title to land. 5.It is obvious that jurisdiction of this court was being invoked wrongly, in the name of rights of the child who is a pupil in the 2nd respondent School, party to the dispute over ownership and occupation of land subject of ELC 1245/2025 and now before the Court of Appeal. 6.I have since learnt that the 1st respondent had also raised a preliminary objection on jurisdiction of this Court. I however need not determine that preliminary objection since this Court is expected to first inquire into its jurisdiction before venturing further. 7.I would have transferred the petition to the ELC but because the petition directly attacks the judgment of ELC which is pending before the Court of Appeal, I will not transfer the same. 8.In the premise, this court on its own motion, guided by the Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) (17 November 1989) (Judgment) case declines jurisdiction and strikes out the petition dated 8th December, 2025 in view of Articles 162(2)(b) and 165(5)(b) of the Constitution, with the latter Article expressly barring this court from hearing and determining disputes exclusively reserved for courts contemplated in Article 162(2) of the Constitution. 9.In the above case, the Court of Appeal stated as follows inter alia:“ 31.It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Scanty or limited facts constitute the evidence before the court. …” 10.The Supreme Court in the S.K. Macharia & another v Kenya Commercial Bank Ltd & 2 others (Application 2 of 2011) [2012] KESC 8 (KLR) (23 October 2012) (Ruling) decision on jurisdiction authoritatively 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. 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.” 11.Accordingly, I down my tools and decline jurisdiction and strike out the petition dated 8th October, 2025 with no orders as to costs. 12.This file is closed. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 23RD DAY OF JUNE, 2026R.E ABURILIJUDGE