https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3869

Mwangi & another (Suing as Chairperson, Secretary and Treasurer respectively of Kiambu County Tenant Welfare Association) v Kiambu County Executive Committee Member in Charge of Lands & 4 others (Constitutional Petition E015 of 2025) [2026] KEELC 3869 (KLR) (23 June 2026) (Ruling) Neutral citation: [2026] KEELC 3869 (KLR) Republic of Kenya In the Environment and Land Court at Thika Constitutional Petition E015 of 2025 JA Mogeni, J June 23, 2026 Between Anderson Gacoka Mwangi 1st Applicant James Gacheru Kariuki 2nd Applicant Suing as Chairperson, Secretary and Treasurer respectively of Kiambu County Tenant Welfare Association and Kiambu County Executive Committee Member In Charge Of Lands 1st Respondent Kiambu County Executive Committee 2nd Respondent National Land Commission 3rd Respondent and Mercy Njeri, Assistant Director Housing Kiambu County 1st Contemnor Daniel Njenga Kinyanjui, Chief Officer Housing & Community Development 2nd Contemnor Ruling 1.Before this Court for determination is a Preliminary Objection dated 2/03/2026, raised by the 1st and 2nd Respondents. The Objectors seek to have the Petition dated 13/08/2025 struck out in limine, primarily on the grounds of lack of jurisdiction, failure to observe the doctrine of exhaustion of administrative remedies, and a violation of the sub judice rule under Section 6 of the Civil Procedure Act. The grounds are herebelow enumerated as follows:i.That this Honourable Court lacks jurisdiction to entertain this Petition as Section 16 of the Kiambu County Housing Act 2024 provides that grievances and disputes regarding County houses and premises shall be referred to and handled by the County Housing Estates Management Committee as per the Third Schedule of the Act.ii.That this Honourable Court lacks jurisdiction to entertain this Petition pursuant to Section 15 of the Landlord and Tenant Act Rev. 2022.iii.The Petition herein offends the sub judice rule as provided in Section 6 of the Civil Procedure Act as the Petitioner filed Petition E035 OF 2025 in May 2025 before Lady Justice Abigail Mshila sitting at Kiambu High Court, which is between the same parties over the same issues and is yet to be heard and determined. 2.The 1st and 2nd Respondents therefore pray that:a.This Honourable Court be pleased to strike out the Petition with costs.b.This Honourable Court be pleased to stay any further proceedings in this matter pending the hearing and determination of this Preliminary Objection.c.The costs of this Preliminary Objection be awarded to the 1st and 2nd Respondents. 3.The Preliminary Objection is opposed vide the Replying Affidavit sworn by James Gacheru Kariuki the Respondent sworn on 31/10/2025. 4.In the Affidavit he asserts that the Preliminary Objection raised by the 1st and 2nd Respondents is based on a fundamental misinterpretation of the core issues in this Petition. He clarifies that the dispute does not involve county houses or premises as the Respondents suggest, but rather concerns the legal title to specific portions of un-surveyed land within Kiambu Municipality Block 11 and Block 1. To support his authority to act in this capacity, he includes “annexure JGK1”, which contains the minutes of the association authorizing him to swear the Affidavit on behalf of its leadership. 5.Regarding the allegation that the matter is sub judice, the deponent explains that the pending Kiambu High Court Petition No. E035 of 2025 is distinct in nature. That case focuses on the constitutional validity of the enactment process of the Kiambu County Housing Act 2024, specifically citing a lack of public participation and civic education. He provides the pleadings from that separate case as “annexure JGK2” to demonstrate the difference in subject matter. 6.The response further argues that the statutes cited by the Respondents, including the Landlord and Tenant Act and the Kiambu County Housing Act 2024, are irrelevant to a claim centered on land title. He maintains that this Petition is properly grounded in the Land Act and the National Land Commission Act, which govern the allocation of public land and the redress of historical land injustices. He invokes the cardinal principle of statutory interpretation, which requires that legislation dealing with a specific subject matter in this case, land title and allocation must be followed to the exclusion of unrelated or general acts. Ultimately, the Petitioner contends that the Court must protect the members' constitutional rights to accessible housing and land ownership, and requests that the Preliminary Objection be dismissed with costs for lack of merit. 7.The Preliminary Objection was canvassed by way of written submission. From my perusal of the Case Tracking System (CTS) I was able to find the Submissions dated 2/03/2026 by the Applicant for the Preliminary Objection and the Notice of Motion Application dated 13/08/2025. 8.The 1st and 2nd Respondents submitted that this Honourable Court should move and strike out the application and stay these proceedings on the primary ground that the Court is not seized of the requisite jurisdiction to entertain the matter. 9.In their submissions, the Respondents contend that Section 16 of the Kiambu County Housing Act 2024 mandates that all grievances and disputes concerning county houses and premises must be channeled through the County Housing Estate Management Committee. Invoking the celebrated doctrine of exhaustion as articulated in the locus classicus Speaker of National Assembly v. James Njenga Karume [1992] KLR 21, they argue that where a statute provides a specific mechanism for dispute resolution, that procedure must be strictly followed to the exclusion of any other forum. Since the Petitioners have failed to utilize this operational administrative committee, the Respondents maintain that the Court must down its tools in accordance with the principle established in Owners of Motor Vessel Lilian S v Caltex Oil (Kenya) Limited [1989] KLR 1. The Respondents further submit that the current proceedings are incompetent by virtue of Section 15 of the Landlord and Tenant Act. They argue that the jurisdiction of the High Court in such matters is appellate in nature and can only be triggered following a decision from the relevant tribunal, which in this instance is the County Housing Estate Management Committee. By bypassing this statutory hierarchy, the Petitioners have improperly sought the Court’s intervention as a Court of first instance in a landlord-tenant dispute involving county property. 10.Furthermore, the Respondents urge the Court to find that the Petition and application are hit by the doctrine of res sub judice under Section 6 of the Civil Procedure Act. They point out that there is a prior pending matter, Kiambu High Court Constitutional Petition E035 of 2025, which involves the same parties and substantially the same issues regarding county housing. The Respondents caution that proceeding with the instant suit would risk the issuance of conflicting Judgments, especially noting that the Petitioners previously obtained conservatory orders in the earlier suit which lapsed after they failed to deposit a Court-ordered security of Kshs. 300,000. In their view, the present filing is a clear attempt at forum shopping after failing to comply with the directions of the Court in the previously instituted matter. 11.Having considered the pleadings and written submissions I have to fall back to myriad decisions made in the determination of a Preliminary Objection which is guided by the principles in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Sir Charles Newbold established that a Preliminary Objection (PO) is akin to a demurrer. It is governed by four foundational principles:i.It must raise a pure point of law, not mixed points of law and fact.ii.The point must be capable of disposing of the entire suit, or a specific part of it, if upheldiii.The point must be argued on the strict assumption that all facts pleaded by the opposing side are correct.iv.It cannot be raised if the Court needs to investigate/ascertain disputed facts or if resolving the issue requires the exercise of judicial discretion 12.Often times point (iii) and (iv) are always jointly treated as one. 13.To resolve the instant application, the Court must address two cardinal issues:a.Whether in consideration of jurisdictional competence the Court is the proper forum of first instance in light of the Kiambu County Housing Act 2024 and the Landlord and Tenant Act; andb.Whether in light of lis pendens & sub judice this Petition is a duplication of Petition E035 of 2025, thereby inviting conflicting decisions. 14.On the question of jurisdictional question and the doctrine of exhaustion the Respondents argue that the Petitioner has bypassed a statutory dispute resolution mechanism. Black’s Law Dictionary (11th Ed.) defines jurisdiction as "a Court’s power to decide a case or issue a decree." In the Kenyan context, the Court of Appeal in Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Limited [1989] KLR 1 delivered the definitive word on this point. Nyarangi, JA stated:“Jurisdiction is everything. Without it, a Court has no power to take one more step... If a Court entertains a cause without jurisdiction, it is not a judge of it; it is an intruder." 15.The Respondents further invoke the Doctrine of Exhaustion. This doctrine dictates that where a specialized tribunal exists, the Court should not be the first port of call. This is supported by Halsbury's Laws of England, which posits that where Parliament has provided a specific remedy, it is generally intended to be exhaustive. The Court of Appeal in Speaker of the National Assembly v James Njenga Karume [1992] KLR 21 held:“Where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed." 16.Conversely, the Petitioner, through James Gacheru Kariuki, argues that the Respondents have mischaracterized the res; the subject matter. He contends that while the County Housing Act governs premises, this Petition concerns Title to Land and Historical Land Injustices under the Land Act and the National Land Commission Act. In scholarly terms, this is a question of characterization of the cause of action. If the pith and substance of the claim is indeed land ownership a constitutional and statutory right under Article 40 and 60, then a Housing Committee may be ill-equipped to determine such weighty questions of title. 17.On the sub judice rule the Respondents allege that Petition E035 of 2025 covers the same ground. Section 6 of the Civil Procedure Act serves to prevent a multiplicity of suits and forum shopping. The Supreme Court of Kenya in Kenya National Commission on Human Rights v Attorney General; [2020] KESC 54 (KLR) reaffirmed that the rule applies when there is a substantial identity of the subject matter. 18.However, the Petitioner clarifies that Petition E035 of 2025 challenges the process of enactment, while the current Petition seeks substantive title basically addressing the issue property rights. If the parties are the same but the matter in issue is different, the sub judice plea must fail. 19.Therefore, from my critical analysis of the pleadings, I find that the Respondents’ objection assumes that the Petitioner is merely a tenant. However, the Petitioner’s Reply, supported by “Annexure JGK1” and “JGK2”, raises a triable issue regarding the nature of the land specifically whether it is public land subject to allocation under Section 12 of the Land Act. 20.The Housing Committee provided for in the Kiambu County Housing Act 2024 is an administrative body. It cannot adjudicate on the validity of Title or Historical Land Injustices, which are the preserve of the Environment and Land Court. Therefore, to down tools at this stage would be to deny the Petitioner the right to be heard on a claim that exceeds the jurisdiction of a mere estate management committee. 21.Additionally, the sub judice rule requires the issues to be directly and substantially the same. Challenging a legislative process (Petition E035 of 2025) is legally distinct from seeking a declaration of title to land. 22.In view of the foregoing, I make the following orders:i.The Preliminary Objection dated 2/03/2026 is hereby dismissed in its entirety.ii.The Court finds that the issues raised by the Petitioner involve the determination of land title and constitutional rights, which fall within the original jurisdiction of this Court and cannot be resolved by the County Housing Estates Management Committee.iii.The plea of sub judice is rejected as the matters in issue in Petition E035 of 2025 and the instant Petition are distinct in law and substance.iv.The Petition dated 13/08/2025 shall proceed for hearing on its merits.v.Costs of this Preliminary Objection shall be in the cause.vi.Mention for disposal of the Notice of Motion dated 13/08/2025 and 20/02/2026 on 22/07/2026.Orders Accordingly. DATED, SIGNED AND DELIVERED AT THIKA VIA MICROSOFT TEAMS ON THIS 23RD DAY OF JUNE 2026.…………………………MOGENI JJUDGEIn the presence of:…..………………………………………..….Petitioner/Applicant……………………………………………….1ST Respondent……………………………..…….…………2ND Respondent……………..…………..……………………1st Contemnor………………………..…………..…………2nd ContemnorMr. Melita……………………..………….…Court Assistant.…………………………MOGENI JJUDGE