https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4600

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ELC PETITION NO. E003 OF 2026** **DAVID KINISU SIFUNA----------------------------------------PETITIONER** **VERSUS** **THE NATIONAL LAND COMMISSION -----------1ST RESPONDENT** **THE COUNTY GOVERNMENT OF** **TRANS NZOIA--------------------------------------------2ND RESPONDENT** **THE DIRECTOR OF LAND ADMINISTRATION,** **ARDHI HOUSE--------------------------------------------3RD RESPONDENT** **THE CHIEF LAND REGISTRAR,** **ARDHI HOUSE--------------------------------------------4TH RESPONDENT** **THE LAND REGISTRAR,** **TRANS NZOIA COUNTY------------------------------5TH RESPONDENT** **THE HON. ATTORNEY GENERAL-----------------6TH RESPONDENT** **RICHARD MUTAI TUMWETI------------------------7TH RESPONDENT** **RULING** 1. What is before me for determination is the 7th respondent’s Notice of Preliminary Objection dated **9/6/2026**, in which the said respondent contends as follows: 2. **THAT the petition is incompetent, misconceived, and an abuse of the court process.** 3. **THAT the petition offends section 6 of the Civil Procedure Act, as the issues raised herein are directly and substantially in issue in Kitale MCELC No. E112 of 2026 between the same parties and concerning the same parcel of land, namely Kitale Municipality Block 10/205.** 4. **THAT the petition constitutes forum shopping and is intended to circumvent and defeat the proceedings and orders already issued in Kitale MCELC No. E112 of 2026.** 5. **THAT the petition does not meet the constitutional threshold set out in *Anarita Karimi Njeru vs Republic [979] KLR 154* and *Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR*.** 6. **THAT the petition fails to demonstrate with precision the manner in which the petitioner’s constitutional rights have allegedly been violated.** 7. **THAT the dispute disclosed in the petition is purely contractual and proprietary in nature, arising from an agreement for sale dated 4/1/2016, and does not disclose any constitutional controversy.** 8. **THAT the petition improperly seeks to invoke constitutional jurisdiction where adequate remedies exist under ordinary civil law.** 9. **THAT the petition raises contested factual issues relating to ownership, consideration, possession, performance, and breach of contract, which can only be resolved through ordinary civil proceedings and viva voce evidence.** 10. **THAT the petitioner has not established any proprietary interest capable of protection under Article 40 of the Constitution.** 11. **THAT the petition discloses no reasonable constitutional cause of action against the respondents.** 12. When this matter came up for mention on **11/6/2026**, directions were taken that the Preliminary Objection be canvassed by way of written submissions, and both counsel obliged. 13. In her submissions dated **17/6/2026**, Ms. Mukanda holding brief for Mr. Kisa for the 7th respondent, urged the court to strike out the petition in *limine*. Counsel urged that the petition: 14. *Fails to meet the constitutional threshold for a constitutional petition.* 15. *Offends the doctrine of constitutional avoidance.* 16. *It is not ripe for constitutional adjudication.* 17. *It is barred by the doctrine of sub judice under Section 6 of the Civil Procedure Act.* ***(v)*** *It amounts to an abuse of the court process.* 1. It is counsel’s contention that the issues raised are purely legal and, therefore, properly fall within the scope of a preliminary objection as set out in the seminal case of ***Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969] EA 696***. 2. On the first issue of whether the petition meets the constitutional threshold developed through decades of Kenyan Constitutional jurisprudence, counsel’s argument is that it does not. Counsel relied on the case of ***Anarita Karimi Njeru vs Republic [1979] KLR***, for the proposition that a person seeking redress from the High Court on a matter which involves a reference to the constitution should set out with a reasonable degree of precision, that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed. 3. Counsel for the 7th respondent further relied on the ***Mumo Matemu*** **Case** *(Supra)* for a similar import and contended that a reading of the petition reveals that the petitioner merely cites **Articles 10, 27, 28, 35, 40, 43, 60,** and **232** of the Constitution without explaining the acts complained of, the constitutional duty allegedly breached by each respondent and how each of the constitutional provisions cited was infringed. 4. On the second issue of whether the doctrine of constitutional avoidance applies, counsel’s contention is that the constitution was never intended to replace the ordinary law of statutes governing private commercial transactions. Counsel further submitted that the prayers sought in the petition are a clear demonstration that the dispute in this matter revolves around the alleged land sale agreement dated **4/1/2016** in respect of land parcel known as **Kitale Municipality Block 10/205**, and that the said dispute is civil in nature and can, and should be determined without invoking the constitution. Counsel cited the cases of ***Rumasalia v Kenya Urban Roads Authority & 2 Others, ELC Petition No. E006 of 2022 [2024] KEELC 4826 [KLR], Communication of Kenya & 5 Others vs Royal Medical Services Ltd & 5 Others (Petitions 14, 14A, and 14C of 2014) (consolidated) [2014] KESC 53 [KLR]***, and ***KKB vs SCM & 5 Others Constitutional Petition 014 of 2020 [2022] KEHC 289 [KLR]***, all for the holding that where there exists ample statutory avenues for the resolution of a dispute, the statutory options for redress must be followed and the constitutional court will decline to entertain the dispute. 5. On the third issue of whether the petition is ripe for constitutional determination, counsel contended that courts should not determine constitutional issues prematurely, particularly where material facts remain disputed or where another legal process is capable of resolving the controversy. Counsel relied on the twin judicial authorities of ***John Harun Mwau vs Attorney General & 2 Others [2012] eKLR*** and ***International Centre for Policy and Conflict & 5 Others vs Attorney General & 5 Others [2013] eKLR***, in which latter case, the Supreme Court underscored the need for constitutional questions to be ripe for determination and cautioned against premature invocation of constitutional jurisdiction. 6. On the fourth issue of whether the petition is *sub judice*, counsel submitted that before the present petition was filed, the petitioner and the 7th respondent were already parties in **Kitale MCELC No. E112 of 2026**, in respect of the same parcel of land, and that the subordinate court had already assumed jurisdiction over the said dispute. The learned counsel submitted on behalf of the 7th respondent that **Section 6** of the Civil Procedure Act applies in the present case in that there exists a previously instituted suit, the parties are substantially the same, the issues are substantially the same, and that the earlier court is a court of competent jurisdiction. Counsel cited the Supreme Court decision in the case of the ***Kenya National Commission on Human Rights vs Attorney General; Independent Electoral and Boundaries Commission & 16 Others***, in which the court restated the parameters for the application of the *sub judice* doctrine. 7. Finally, counsel submitted that the filing of the constitutional petition after commencement of proceedings before another court of competent jurisdiction concerning the same subject matter is an abuse of the court process and directed this court to the case of ***Muchanga Investments Ltd vs Safaris Unlimited (Africa) Ltd & 2 Others***, (which counsel did not provide a citation) for that proposition. 8. On his part, the petitioner, who is an advocate of this court but is, in the instant cause, acting in person, raised one issue for determination, to wit: whether the 7th respondent’s preliminary objection satisfies the threshold laid down in the case of ***Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd [1969] EA 696***. The petitioner proceeded to address 8 sub-issues on the said issue as hereafter: 9. That the preliminary objection is incompetent in law and ought to be dismissed with costs as it fails to meet the well-established legal threshold governing preliminary objections. The petitioner/applicant further submitted that a preliminary objection cannot be founded upon disputed facts or matters requiring evidentiary proof. The petitioner/applicant cited the case of ***Oraro vs Mbaja [2005] 1 KLR 141, and Independent Electoral and Boundaries Commission vs Jane Cheperenger & 2 Others [2015] eKLR*** for this proposition. 10. The petitioner/applicant further contended that although the 7th respondent asserts that the objection raises pure points of law, the substance of the objection reveals the exact opposite, in that the 7th respondent is inviting the court to determine whether the petitioner paid the full purchase price, whether the sale agreement is complete and enforceable, whether the petitioner fulfilled his contractual obligations, whether the alleged attesting advocate witnessed the agreement, all of which are questions of fact. 11. The petitioner further submitted that the preliminary objection impermissibly invites the court to determine the substantive merits of the petition before hearing the evidence. That the assertion that the petitioner lacks any legal or equitable interest in the suit property, that the letter of allotment lapsed, that no objection can issue, or that the petition lacks merit are not jurisdictional objections but rather substantive factual issues at the heart of the dispute between the parties. The petitioner cited the case of ***Quick Enterprises Ltd vs Kenya Railways Corporation***, in which he contended that the Court of Appeal warned against converting a preliminary objection into mini-trials. In a similar vein, the petitioner relied on the case of ***Aviation & Allied Workers Union Kenya vs Kenya Airways Ltd & 3 Others [2015] eKLR***, in which the Supreme Court emphasized that where facts remain contested, the court must first receive evidence before arriving at any determination. 12. The petitioner further sought to clarify that the petition alleges distinct constitutional and statutory violations against seven **(7)** respondents, each alleged to have played a separate role in acts complained of. That many of the allegations and reliefs sought are directed against the 1st to 6th respondents. The petitioner contends further that in the absence of any objection by those respondents, and without addressing the distinct grievances levelled against them, it is legally untenable for the 7th respondent to invite this court to summarily terminate the entire petition on grounds affecting parties who have neither challenged the petition nor associated themselves with the preliminary objection. 13. The petitioner therefore urged the court to dismiss the preliminary objection in its entirety and with costs, and set down the petition for hearing on merit. 14. It is instructive to note that all the other parties involved in this matter did not make any submissions, as they indicated that they left it to the court to make a determination. It follows, therefore, that the contention on the question of the preliminary objection is between the petitioner and the 7th respondent. 15. Before I address my mind to the issues raised in the matter before me, I find it necessary to address the law on preliminary objections. A preliminary objection was defined in the celebrated case of ***Mukisa Biscuits Manufacturing Co, Ltd vs West End Distributors Ltd*** *(Supra).* In the said case, Law J.A. had this to say: ***“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, will dispose of the suit. Examples are an objection to jurisdiction of the court, a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the matter to arbitration…”*** 1. A plethora of judicial authorities have since buttressed the principles set out in the **Mukisa Biscuits Manufacturing Co. Ltd** *(Supra),* one of which the Supreme Court’s case of ***Hassan Ali Joho & Another vs Suleiman Said Shabhal & 2 Others [2014] eKLR***, in which the apex court cited with approval the **Mukisa Biscuits Manufacturing Co. Ltd case** by reiterating the rendition that: ***“…..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. Having the above in mind, and having had occasion to look at the issues raised in the preliminary objection before me, and the submissions by the two contesting parties, the issues that I consider material for determination are as follows: 2. ***Whether the petition before this court offends the constitutional doctrine of avoidance by improperly seeking to invoke the constitutional jurisdiction of this court with regard to an environmental and land matter where adequate remedies exist under ordinary civil law.*** 3. ***Whether this petition offends the sub judice doctrine, hence improperly invoking the jurisdiction of this court.*** 4. I raise these two issues for determination as I deem them to go into the root of this court’s jurisdiction, which, if upheld, would preclude this court from entertaining the petition. I note further that all the other issues raised in the preliminary objection are repetitive and would in principle, be subsumed into the two issues above. 5. On the first issue above, the 7th respondent contends that the petitioner’s cause of action is founded on an agreement for the sale of land, whose major contestations are whether the petitioner paid the full purchase price, with the agreed consideration, whether the agreement itself is complete and agreeable, and whether the petitioner performed his contractual obligation to process the title, among others. The 7th respondent further contends that if the court were to embark upon constitutional adjudication at this stage, it would first be compelled to determine questions of contract, fraud, authenticity of documents, consideration, title processing, and proprietary rights. 6. On the other hand, the petitioner contends that many of the reliefs sought are against the 1st and 6th respondents in respect of which distinct grievances have been levelled against them as state agencies. That the petition is not merely about the sale agreement and that it would be legally untenable for the 7th respondent to invite the court to summarily terminate the entire petition, as it were. 7. I have had occasion to see the petition as well as the notice of motion accompanying the said petition dated **2/6/2026**. The grounds upon which the said motion is based all disclose a cause of action founded on a sale agreement dated **4/1/2016** and in respect of Land Parcel No. **Kitale Municipality Block 10/205**. The bulk of the petitioner’s contentions is against the 7th respondent. The petitioner, however, states that under **Article 35** of the Constitution and **Sections 4, 5, 9,** and **14** of the Access to Information Act, **2016**, the petitioner has a right to access information held by the state and by any other person if such information is required for the exercise or protection of any right or fundamental freedom. It is in that regard that the petitioner is seeking that the court be furnished with the relevant land records indicating the current status of land parcels known as **Kitale Municipality Block 10/202, Kitale Municipality Block 10/203**, **Kitale Municipality Block 10/204**, and **Kitale Municipality Block 10/205**. This is the reason the petitioner has moved the court by way this petition and has joined the 1st to 6th respondents. 8. So does the petition offend the doctrine of constitutional avoidance so as to be a subject of preliminary objection? The doctrine of constitutional avoidance precludes the court from invoking the constitution to settle controversies that can conveniently be addressed through any other legal basis other than the constitution. It posits that disputes that may appropriately be resolved on the basis of a statute or regulatory regime or other established legal principles should not be disguised and tried as constitutional litigations. 9. The superior court has had occasion to expound on the doctrine in the case of ***Ibrahim Wakhanyanga & 2 Others vs Chief Magistrate’s Court, Kakamega & 2 Others; Attorney General for Land Registrar, Kakamega (Interested Party) [2022] eKLR***, in which it observed as follows: ***“One of the instances in which a constitutional court loses jurisdiction is through the doctrine of constitutional avoidance. Thus, where there exist ample statutory avenues for resolution of a dispute, the constitutional court will defer to the statutory options and decline to entertain such dispute…”*** 1. Further, the Court of Appeal in the case of ***Summaya Athumani Hassan vs Paul Masinde Simidi & Another [2019] eKLR***, observed thus: ***“…where legislation has been enacted to give effect to a constitutional right, it is not permissible for a litigant to found a cause of action directly on the constitution (****emphasis mine****).”*** 1. The Supreme Court, too, has reinforced this principle in the ***Communications Commission Case*** *(Supra).* 2. Looking at what the petitioner is contending in his submissions, that he is seeking to enforce his right to access to information under **Article 35** of the Constitution, I feel that, that is not enough reason to turn to the Constitution to prosecute the said right. There is an elaborate procedure that is provided for under the Access to Information Act, prescribing how this is to be done and the consequences of failing to facilitate access to such information if all conditions are met. 3. Equally, even though the petitioner contends that he is aggrieved by the actions of the 1st to 6th respondents, this court cannot lose sight of the fact that any alleged cause of action connecting all the other 6 respondents has arisen out of the alleged acts or omissions of the 7th respondent vide a legal transaction arising out of a sale agreement between the petitioner and the 7th respondent. 4. This is not a disputed fact. Bearing in mind that there is a separate statute governing such contracts for the sale of land, an attempt to invoke the Constitution to litigate on such a matter would offend the doctrine of constitutional avoidance, which in this court’s reckoning, is a pure point of law falling within the four corners of what comprises a preliminary objection. 5. On that account alone, I would be inclined to uphold the preliminary objection and to dismiss this petition. 6. However, I am also minded to address the second issue as to whether this matter is sub-judice **Kitale MCELC No.112 of 2026**. The 7th respondent has contended that the petitioner and himself are parties in the above suit before the lower court, which court has assumed jurisdiction and issued preservatory orders. The petitioner does not deny this contention. His only rejoinder is that the present petition seeks constitutional reliefs arising out of alleged violations of the petitioner’s rights and freedoms, which cannot be adequately addressed within the framework of the subordinate court proceedings. 7. The doctrine of sub-judice is a statutory doctrine captured under **Section 6** of the **Civil Procedure Act.** It gains applicability by comparing the parties, the subject matter, issues in issue, and the pendency of a prior suit before a court of competent jurisdiction. 8. It is noteworthy that courts have consistently upheld preliminary objections founded on jurisdictional bars such as limitation of action and *sub-judice.* *Sub-judice*, being a statutory limitation on the court’s authority to proceed, is a jurisdictional issue (See ***Nkamasiai & Another vs Juhudi Kilimo Ltd & Another, Civil Appeal E006 of 2025 [2026] JEHC 1834 [KLR]***. 9. Like I have noted elsewhere in this ruling, the fact of another matter involving the same parties herein, being **Kitale MCELC No. 112 of 2026**, has not been disputed. In any event, under **Sections 59** and **60** of the **Evidence Act,** courts may take judicial notice of matters of public record. I hold that court proceedings are matters of public record in respect of which this court may take judicial notice. The question this court must now ask is what will happen to the proceedings before the lower court if this court were to assume jurisdiction in this petition? The proper answer to that question is for this court to decline jurisdiction in respect of this petition on the twin jurisdictional issues of *sub-judice* and constitutional avoidance. 10. The upshot is that the petition dated **2/6/2026**, together with the motion by the petitioner of even date, are struck out with costs to the 7th respondent. 11. Orders accordingly. **Ruling dated, signed,** and **delivered** via **Microsoft Teams/Open Court** at **Kitale** on this **10th** day of **July 2026.** **In the presence of:** Court Assistant - Matui/Nancy Petitioner in person present Mr. Kisa for the 7th respondent Ms. Njaggah for the 1st respondent N/A for the 2nd - 6th respondents  **HON. G.M. GITONGA** **JUDGE, ELC KITALE.**