https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9100

Mutua & 2 others v Director of Public Prosecutions & 3 others (Petition E171 of 2024) [2026] KEHC 9100 (KLR) (Constitutional and Human Rights) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9100 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E171 of 2024 LN Mugambi, J June 25, 2026 Between Julius Mutie Mutua 1st Petitioner Alex Kyalo Mutemi 2nd Petitioner Pascal Kiseli Basilio (Suing as the Officials of Aimi Ma Lukenya Society) 3rd Petitioner and Director of Public Prosecutions 1st Respondent Director of Criminal Investigations 2nd Respondent Attorney General 3rd Respondent Chief Magistrate Court Milimani Nairobi 4th Respondent Ruling 1.The Petition dated 2nd April 2024 is predicated on a protracted land dispute being L.R. No.10424 situated in Mavoko Municipality, Machakos County. That dispute is between the Petitioners and the East African Portland Cement Limited and has been the subject of a suit before the Environment and Land Court (ELC) in Machakos ELC No.74 of 2014: Julius Mutie Mutua and others v. East African Portland Cement Limited and 2 others. The matter has since moved to the Court of Appeal, being Civil Appeal No. E476 of 2023: Julius Mutie Mutua and others v. East African Portland Cement Limited and 2 others. 2.In or around the 27th March 2024, the Petitioners were notified of an intention to prosecute them with intended criminal charges of conspiracy to steal the 4298 acres of land and obtaining money by false pretenses. The Petitioners contend that the intended prosecution is premature, malicious and intended to intimidating them to relinquish their pursuit for the contested parcel of land. 3.The 3rd and 4th Respondents filed a Notice of Preliminary Objection dated 3rd March 2025 in opposition to the Petition. The Preliminary Objection is founded on the following grounds:i.By dint of Article 165(5) of the Constitution the Court lacks the jurisdiction to hear and determine the Application and Petition both dated 2nd April, 2024 herein since it is a dispute relating to the environment and the use and occupation of, and title to, land by virtue of the provisions of Article 165(5) of the Constitution which provides that the High Court shall not have jurisdiction in respect of matters failing within the jurisdiction of the Court contemplated in Article 162(2) of the Constitution.ii.By dint of Section 13(2) of the Environment and Land Court Act No. 19 of 2011 which provides that the Environment and Land Court shall have original and appellant jurisdiction to hear and determine all disputes in accordance with Article 162(2) (b) of the Constitution.iii.By dint of Section 13(7) of the Environment and Land Court Act No. 19 of 2011 which provides that the Environment and Land Court can issue award of damages, orders for restriction and compensation, which provision if read together with the provisions of Article 162(2) of the Constitution which oust the jurisdiction of the Court to hear and determine this case.iv.The issues raised in this Petition and Application relate to a dispute of ownership of land as per Section 25 and 26 of the Land Registration Act, 2012 namely LR No. 10424 Mavoko Municipality, Machakos County between the Petitioners and East Africa Portland Cement Limited as contended by the Petitioner and the issue in dispute is before the Machakos ELC under ELC No. 74 of 2014 and the Land Registration Act, 2012 Section 101 is clear on the issue of jurisdiction providing as follows: the Environment and Land Court established by the Environment and Land Court Act, 2011 No. 19 of 2011 has jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Act.v.Section 150 of the Land Act, 2012 provides that the Environment and Land Court established in the Environment and Land Court Act is vested with exclusive jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Act.vi.The Application and Petition does not disclose any constitutional questions for the determination by this Court neither does it meet the principles on pleadings in constitutional petitions as enunciated in Anarita Karimi Njeru v Republic [1979] 1 KLR 154 and augmented in Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR. Submissions 3rd and 4th Respondents’ Submissions 4.Principal State Counsel, Wanja Wanjiru filed submissions dated 30th June 2025 on behalf of the 3rd and 4th Respondent where she identified the following two issues for determination:i.whether the Court has the jurisdiction to hear and determine this matter and,ii.whether the petition has been pleaded with specific particularity. 5.On the first issue, Counsel relied on the cerebrated two judicial precedents, Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR 1 and Interim Independent Electoral Commission [2011] eKLR, for the submission that this Court on jurisdiction and argued that by dint of Article 162 (2)(b) as read with Article 165(5)(b) of the Constitution, this Honourable Court has no jurisdiction to entertain this matter because the subject matter of the suit relates to a land dispute in respect of L.R No. 10424. 6.Counsel submitted that in view of Article 162(2) (b) of the Constitution, it is the Environment and Land Court which has been operationalized by the Environment and Land Court Act that has jurisdiction, under Section 13 of the said Act, to hear and determine disputes relating, inter alia, to: land administration and management; public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and any other dispute relating to environment and land. 7.To buttress this point reliance was placed in Republic v National Land Commission Ex-Parte Ephrahim Muriuki Wilson & others [2018] eKLR where it was held that:“The jurisdiction of the Environment and Land Court is limited to the disputes contemplated under Article 162(2) (b) of the Constitution and Section 13 of the Act. In this regard, my view is that the intention in the Constitution is that if an issue arises touching on land in respect of its use, possession, control, title, compulsory acquisition or any other dispute touching on land, then this Court has no jurisdiction. The other closely related issue is the jurisdiction of the Environment and Land Court to deal with issues relating to constitutional interpretation and enforcement of constitutional remedies especially in respect to matters which fall within the ambit of the Environment and Land Court. This is clearly provided for under Section 13 (3) of the Act. Sub- section 7 (b) above allows the Environment and Land Court to grant prerogative orders. It follows that the Environment and Land Court can entertain this Judicial Review application challenging the decision of the Respondent revoking its title to land and grant the prerogative reliefs sought.” 8.Moreover, Counsel submitted that the dispute that this Petition raises calls for scrutiny of the application of the doctrines and parameters applicable in the process of the sole proprietor as enunciated under Sections 24 to 35, and Sections 35, 37, 42, 60 and 61 of the Land Registration Act. As such, Counsel argued that this Court cannot arrogate itself this jurisdiction. 9.Further, Counsel submitted that the Petitioners do not meet the threshold for grant of conservatory orders. Reliance was place on Muslim for Human Rights (Milimani) & 2 others vs Attorney General & 2 Others [2011] eKLR where it was held that:“The court must be careful for it not to reach final conclusion and to make final findings. By the time the application is decided; all the parties must still have the ability and flexibility to prosecute their cases or present their defences without prejudice. There must be no conclusivity or finality arising that will or may operate adversely vis-a vis the case of either parties. The principle is similar to that in temporary or interlocutory injunctive in civil matters. This is a cardinal principle and happily makes my functions and work here much easier despite walking a tight legal rope that I could easily lose balance with the slightest slip due to any laxity or being carried away by the passion or zeal of persuasion of any one side.” 10.Further cases cited in support of this point were: Centre for Rights Education and Awareness (CREAW) & 7 Others v. Attorney General [2011] eKLR, Platinum Distillers Limited vs. Kenya Revenue Authority [2019] eKLR, Board of Management of Uhuru Secondary School vs. City County Director of Education & 2 Others [2015] eKLR, Wilson Kaberia Nkunja vs. The Magistrate and Judges Vetting Board and Others Nairobi High Court Constitutional Petition No. 154 of 2016 [2016] eKLR and Kenya Association of Manufacturers & 2 Others vs. Cabinet Secretary - Ministry of Environment and Natural Resources & 3 Others [2017] eKLR. 11.Submitting on the second issue, the 3rd and 4th Respondents contended that the Petitioners had not demonstrated how the 3rd and 4th Respondents had violated their constitutional rights in that they failed to demonstrate how the Respondents’ conduct constitutes a violation of their fundamental rights and freedoms as established in Anarita Karimi Njeri vs R (1976-1980) KLR 1272. Further reliance was placed on Daniel Chacha Muriri vs Attorney General [2012] eKLR where it was held that:“It is the petitioner’s duty to specify and demonstrate with particularity the constitutional rights which have been violated, in which manner and by whom. He must also frame the reliefs he is seeking from the Court.” 12.To further support this position, the 3rd and 4th Respondents also relied on Mumo Matemu vs Trusted Society of Human Rights Alliance and 5 others [2013] eKLR and Kamal Jadval Vekeria vs Director General and Kenya Citizens and Foreign National Management Service [2016] eKLR. Petitioners Submissions 13.Mbalu Associates Advocates LLP for the Petitioner filed submissions dated 3rd September 2025 where they outlined the issues for determination as follows:i.whether the preliminary objection raises any point law and whether this Court has jurisdiction to entertain the matter and,ii.whether the Petitioners have pleaded their case with sufficient particularity to meet the constitutional threshold. 14.Counsel relied on the case of Mukisa Biscuit Manufacturing Company Limited vs West End Distributors [1969] EA 696 citing the following passage:“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." 15.It was the Petitioners’ submission that the Preliminary Objection as framed does not meet the threshold of a valid objection because it misrepresents the pleadings and the reliefs sought in respect to L.R. No.10424. According to the Petitioners, in contrast to the Respondents assertion, the Petition seeks constitutional protection against malicious prosecution arising from threatened violation of rights under Articles 27, 40, 47, 49, and 50 of the Constitution which are matters are squarely within the jurisdiction of this Court. 16.Counsel submitted that the facts of this case demonstrate that the Petitioners were served with summons to take plea in respect of alleged offences of conspiracy to defraud and obtaining money by false pretenses, which are directly linked to their claim of ownership over L.R. No. 10424. Counsel noted that as deponed by the Petitioners, the question of ownership of that land is pending determination before the Court of Appeal hence is not the subject of this suit. 17.As such, the Petitioners emphasize that the gravamen of this suit are the threats to subject the Petitioners to criminal proceedings on an issue that is sub judice hence violates the Petitioners constitutional rights. To buttress this point reliance was placed in Kenya National Commission on Human Rights v Attorney General: IEBC & 16 others Interested Parties [2020] eKLR where it was affirmed that constitutional petitions are properly before the High Court where fundamental rights are implicated, notwithstanding the existence of specialized courts. 18.Turning to the second issue, Counsel submitted that as guided in Anarita Karimi Njeru [supra] and Mumo Matemu[supra], the Petition has been pleaded with sufficient particularity. Counsel highlighted that the Petitioners have clearly identified the constitutional provisions said to have been violated being Article 27, 40, 47, 49 and 50 of the Constitution. Counsel noted that the Petitioners have specified the manner of violation being the threatened prosecution in respect of the parcel of land while there already exists a pending appeal in the matter and the alleged malicious prosecution, without adherence to due process. 19.In light of this, Counsel stressed that the Petitioners having complied with the specificity test, the Respondents are fully apprised of the case they must answer and the Court is properly equipped to determine whether the Petitioners' rights have been violated. 20.To this end, Counsel argued that it is evident that the Respondents' Preliminary Objection is fatally defective, misconceived in law, and unmerited in fact, and does not raise a pure point of law, but is instead, entangled with disputed questions of fact. Analysis and Determination 21.Having considered the pleadings and submissions of the Parties herein, the issue that arises for determination is: Whether the 3rd and 4th Respondents’ Preliminary Objection is merited. 22.The threshold of a preliminary objection was established in the cerebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 69. The principle enunciated therein was adopted with approval by the Supreme Court in Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others (2014) eKLR where the Court held as follows:“(31)To restate the relevant principle from the precedent-setting case, Mukisa Biscuit Manufacturing Co Ltd –vs. - West End Distributors (1969) EA 696:“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 an 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….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”. 23.Moreover, in the case of Dismas Wambola v Cabinet Secretary, Treasury & 5 others (2017) eKLR the Court explained:“…a preliminary objection may only be raised on a “pure question of law.” To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts.” 24.And on expediency of preliminary objections in the administration of justice, the Supreme Court in the Independent Electoral & Boundaries Commission v Cheperenger & 2 others (Civil Application 36 of 2014) [2015] KESC 2 (KLR) (15 December 2015) (Ruling) opined as follows:“ 21.The occasion to hear this matter accords us an opportunity to make certain observations regarding the recourse by litigants to preliminary objections. The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement…” 25.Having regard to the foregoing authorities, the fundamental characteristics of a Preliminary Objection may thus be condensed as follows:a.a preliminary objection, argued successfully should be capable of disposing of the whole suit.b.It is argued on the assumption that all the facts pleaded by the other side are correctc.It cannot be raised if any fact has to be ascertained by evidenced.It cannot be raised if what is sought is the exercise of judicial discretion. 26.The question therefore becomes, does the instant Preliminary Objection satisfy the criteria of a Preliminary Objection? 27.One of the fundamental characteristics of a Preliminary Objection is that it is argued on the basis that the facts pleaded are assumed or taken to be correct. 28.A careful examination of the Preliminary Objection raised by the Respondents discloses that the substantive objection that the Respondents Preliminary Objection raises is that the this is a dispute over the ownership of land- L.R. No. 10424 within Mavoko Municipality. 29.The Petitioners negate that assertion and contend that the Petition seeks protection against intended malicious prosecution which has been threatened yet the dispute over land over the ownership is already the subject of a separate civil litigation having previously been before the Environment and Land Court and now an active matter before the Court of Appeal, hence the notice to prosecute them over the same unresolved issue pending in Court is a violation of their rights under Articles 27, 40, 47, 49, and 50 of the Constitution which are matters squarely within the jurisdiction of this Court. 30.I have carefully examined the instant Petition. It is manifest that this Petition as pleaded including the prayers sought implicate a claim of manipulation of the criminal justice process by unfairly employing it against the Petitioners to intimidate them relation to an ongoing civil dispute. According to the Petitioners that is the gist of this this Petition and not the land ownership dispute which they acknowledge is an issue that is currently before the Court of Appeal. The Petitioners want this Court to interrogate the threat of intended prosecution arising from the said land ownership tussle which they allege is a violation of Article 27, 40, 47 and 50 of the Constitution. As such the Petition seeks the following distinct prayers:i.A declaration that the Respondents have violated the Petitioners' right to administrative action and trial that is expeditious, efficient, lawful, reasonable and procedurally fair under Articles 47, 49 and 50 of the Constitution.ii.A declaration that the Respondents have violated the Petitioners' right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court under Article 50(1) of the Constitution.iii.A declaration that the intended criminal proceedings before the Chief Magistrates Court are unlawful and unconstitutional.iv.An order that the Respondent's actions are an infringement of the Petitioners' rights to fair administrative action and fair hearing.v.A conservatory order of stay of the intended prosecution of the Petitioners and each of them in the Chief Magistrates Court Milimani Nairobi (or any other court of concurrent jurisdiction) pending the hearing and determination of Court of Appeal Civil Appeal No. E476 of 2023 Julius Mutie Mutua And Others Vs. East African Portland Cement Limited & 2 Others.vi.General damages.vii.Any other orders it may deem just, fit and expedient to award in the interests of justice. 31.It is clear from the foregoing that the 3rd and 4th Respondents submission that this is essentially a land ownership issue a mischaracterization of the real facts that are in controversy in this Petition. 32.It is the considered view that the issues raised in the Petition relate to observance of the Bill of Rights, accountability and impartiality by those charged with the Constitutional and statutory mandate of enforcement of the criminal law, particularly, arrest and prosecution. it is not about ownership and occupation of land as suggested by the 3rd and 4th Respondent. 33.The Preliminary Objection is not founded on facts as pleaded in the Petition. Rather, it is based on the Respondent’s mischaracterization of the dispute and rests on an assumption the Petitioner expressly disputes. It therefore does not qualify to be a pure Preliminary Objection. 34.In this case, the Petitioners allege the Police and the DPP have acted in a manner inconsistent principles of impartiality and objectivity. This would, if proved, be against the principle of Rule of law in execution of their statutory and constitutional mandate as it would amount to unfairly invoking the criminal investigative and prosecution process. Thus Court is obligated to inquire into such a grievance pursuant the matter under Article 165 (3) (b) and (d) (ii) of the Constitution. Whether the allegations will ultimately be established by evidence as against each of the Respondents is an entirely different matter. 35.The issues raised in the petition thus squarely fall within the purview of this Court’s jurisdiction under Article 165 (3) (b) and (d) (ii) of the Constitution. 36.Further, the 3rd and 4th Respondents challenged the Petition on the basis that it does not meet the constitutional threshold of pleading a constitutional petition as set out in the Anarita Karimi Njeru v R (1979) eKLR. The principle established in this case is that a constitutional Petition should not merely cite constitutional provisions or make general statements but it must identify the provisions that are alleged to be violated and plead the manner these provisions were violated. 37.The Petition questions whether the intended prosecution against the Petitioners for which they have been served with the notices to take plea in the context of the factual matrix outlined in this Petition has been legitimately undertaken within the confines of the Constitution and the law. The Petition as pleaded calls to attention the national values and principles of governance under Article 10 of the Constitution which binds all State organs, State Officers, public officers and indeed all persons. The values include the Rule of law, good governance, integrity, transparency and accountability (per Article 10 (2) (a) & (c). Further, Article 232 (1) (c) & (e) which demands prompt, effective, impartial and equitable service as well as accountability for administrative actions. 38.It is thus the finding of this Court that the Petition sufficiently discloses a clear constitutional dispute that meets the threshold set out in the case of Anarita Karimi Njeru (supra). 39.The upshot therefore is that this Honourable Court finds that the instant Preliminary Objection to be devoid of any merit and is hereby overruled. 40.Costs shall be in the cause. RULING DATED AND DELIVERED VIRTUALLY THIS 25TH DAY OF JUNE, 2026.L.N. MUGAMBIJUDGERuling delivered virtually in presence of Mr. Mulati for the 1st Respondent.No appearance for the Petitioner.L.N MUGAMBIJUDGE25/6/2026.COURTThe Ruling having been delivered dismissing the Preliminary Objection, the file is now returned to Milimani Constitutional & Human Rights Division for the hearing of the main suit.File be mentioned before the Presiding Judge Milimani Constitutional and Human Rights Division on 2/7/2026 for further directions. Mention Notice to issue.L.N MUGAMBIJUDGE25/6/2026.