https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9234

Ukamba Agricultural Institute Ltd v Attorney General & another (Petition 11 of 2010) [2026] KEHC 9234 (KLR) (Constitutional and Human Rights) (26 June 2026) (Ruling) Neutral citation: [2026] KEHC 9234 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition 11 of 2010 RE Aburili, J June 26, 2026 Between Ukamba Agricultural Institute Limited Petitioner and Attorney General 1st Respondent South Eastern University College (Sued Pursuant to Section 3 of the South Eastern University College Order, 2008) 2nd Respondent Ruling 1.This petition dated 16/7/2010 was filed on 19/7/20210, before the promulgation of the 2010 Constitution on 27/8/2010, the effective date. 2.The petition seeks the following reliefs:ii.A declaration be issued that the petitioner herein, being the person in whose name for or on whose behalf the title to the suit properties is registered, is the legal proprietor of the suit properties.iii.A Declaration be issued to the effect that the legal notice number 102 of 2008, issued under the hand of the President of the Republic of Kenya and Section 3(3) and (4) of the South-Eastern University College Order 2008 are, to the extent that they purport to make the 2nd respondent the successor of the petitioner and to alienate and transfer the petitioner’s property to the 2nd respondent, unconstitutional, illegal, unlawful, ultra vires, malafides, null and void and the purported transfer of the suit properties and the entry into and occupation of the suit properties by the 2nd respondent are unlawful null and void to the extent of their inconsistency with the Constitution.iv.A declaration be issued by this Honourable Court that the decision of the President of the Republic of Kenya conveyed vide legal Notice No. 102 of 2008 issued on 15 July 2008, purporting to transfer the suit properties and the petitioner’s College to the 2nd Respondent did not comply with Sections 70, 75, 82, 84 and 123 of the Constitution as read together with Sections 23, of the Registration of Titles Act, Chapter 281 of the Laws of Kenya and sections 3, 6, 8 19 and 33 (3) of the Land Acquisition Act Chapter 295 of the Laws of Kenya and is therefore, null and void. 3.I note that a similar dispute between the petitioner herein and the 2nd respondent and Nairobi City County was filed Vide ELC 136/2009 and judgment was rendered by Angote J of ELC on 11/5/2023, that copy of the judgment was filed into this court by Kethi D. Kilonzo counsel for the 2nd respondents on 7/2/2024. 4.When the parties appeared before me on 17/6/2026, I inquired from their counsel whether the petition, in view of the reliefs sought, though filed pre the 2010 Constitution, belongs to this Court or the Environment and Land Court and Mr. Ombwayo counsel for the petitioner submitted that Majanja J (RIP) had alluded to the same fact of the matter belonging to Environment and Land Court but that he allowed parties to proceed in this Court. 5.Mr. Kithinji counsel for the 2nd respondent, on behalf of Ms Kethi Kilonzo submitted that there was a similar matter before Mwamuye J and that he dismissed the same for want of prosecution saying that he could not transfer to Environment and Land Court as he had no jurisdiction to do. That they had raised a preliminary objection on this matter but they were ready to take directions in the matter. 6.This Court then being persuaded beyond doubt that the matter belongs to Environment and Land Court, ordered for the transfer of the same to the environment and Land Court and intimated to the parties that I would make a detailed ruling giving reasons. 7.I now provide reasons for my decision to transfer this petition to the Environment and Land Court at Nairobi. As earlier stated, the petition was filed pre- 27/8/20210 the effective date of the 2010 Constitution. Prior to 27/8/2010, the High court was vested with unlimited original Civil and Criminal jurisdiction to hear and determine disputes. Disputes included those relating to environment, the use of and occupation of and title to Land, and Employment and Labour Relations cases with the latter Jurisdiction being shared with the Industrial Court of Kenya in many respects. 8.There was off-course, the Land Dispute Tribunal and the Provincial Appeals Committees which also handled land disputes except disputes that concerned title to land. 9.Accordingly, this petition did not find itself in the High Court by mistake. This was the Court that was vested with jurisdiction to hear and determine the petition which on the face of it and from the reliefs sought, challenges the alienation and transfer as well as occupation of land which the petitioner claims to be the lawful registered owner thereof and challenging the decision of the President to give the said land LR No. 13529 - NW Kitui LR No. 209/10350 Upper Hill and LR No. 12970 West Emali Township, to the 2nd respondent University. 10.However, upon promulgation of the 2010 Constitution, Article 162 (2) changed the jurisdictional issues relating to Land and Environment. The Article 162, (2) (b) contemplates the establishment of the Environment and Land Court, a Superior Court 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. Parliament was then constitutionally mandated at Article 162(3) to determine the jurisdiction and functions of the court and the Environment and Land Court Act was enacted in 2012. 11.Jurisdiction of the court is found at section 13 of the Act. In addition, Article 165(5) (b) of the Constitution expressly bars the High Court from hearing and determining disputes which are exclusively reserved for the courts contemplated in Article 162 (2) and the Environment and Land Court is one of those two courts. The other court is the Employment and Labour Relations Court. 12.Accordingly, the Constitution expressly limits the jurisdiction of the High Court and confers jurisdiction to the Environment and Land Court, in matters environment, and the use and occupation of and title to land. 13.It follows that the jurisdiction of this court in those stated matters was ousted by the Constitution. However, the Constitution did not render disputes or cases which were already filed in the High Court to be incompetent. The High Court was given the power under the transitional and consequential provisions under Schedule six of the Constitution, to continue hearing and determining those cases already filed until final determination., in the transitional period and until the establishment and operationalization of the Environment and Land Court. 14.Section 7(1) of the said sixth Schedule provides that all laws in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this constitution. 15.This petition ought to have been heard and concluded in the transitional period but it is here, 16 years later. 16.The Environment and Land Court was established and operationalized. Parties should have or the Court suo moto could have send the file to Environment and Land Court to hear and determine it. We are here, and in view of the transitional and consequential provisions of the sixth Schedule to the Constitution, this court cannot strike out the petition or allow a preliminary objection on jurisdiction. 17.Furthermore, this court would be visiting an injustice to the petitioner if it allowed a preliminary objection on jurisdiction to override justice since the petition was filed prior to the 2010 Constitution and Article 162 (2) (b) taking effect. 18.That said, this Court finds support in the case of Mugendi v Kenyatta University & 3 others (Civil Appeal 6 of 2012) [2013] KECA 41 (KLR) (17 May 2013) (Judgment) where the Court of Appeal upheld a decision of this Court and stated as follows:“32.The learned judge framed the issue before him thus:1.The central issue to be determined is whether the High Court should continue to determine labour and employment matters in the light of the establishment of the Industrial Court.”33.That question was framed on the basis that the employment and labour relations court was contemplated by Article 162(2) of the Constitution. It was then established by the Industrial Court Act (Act No.20 of 2011) and its judges were appointed on 12th July, 2012 vide Gazette Notice No.9797 of 19th July, 2012.34.For our purposes, it does not appear necessary to go into the details of the Industrial Court Cause (above) or the details of the award. Suffice it to say that the learned judge was concerned with and he determined the issue whether the High Court could still continue to entertain employment and labour disputes when an Industrial Court had been established for just that – to deal exclusively with such disputes as set out in S.12 of the Industrial Court Act, alluded to above. Again the detail of the whole range of the nature of disputes that should be laid before the Industrial Court are not pertinent here. However, in his long and well-researched determination, covering legislation more or less similar to the content of our Article 162(2), and cases so far determined in South Africa, Majanja, J. delivered himself in part of his determination thus: -49.A correspondent court to the High Court, that is the Industrial Court, has now been established to deal with employment and labour matters. It follows that all employment and labour relations matters pending in the High Court shall now be heard by the Industrial Court which is now a court of the status of the High Court. The High Court therefore lacks jurisdiction to deal with matters of employment and labour matters whether filed in the High Court before or after the establishment of the Industrial Court.” (undertaking supplied.)35.And with that the learned judge directed that the two causes that gave rise to the petition before him be transferred to the Industrial Court for hearing and determination.36.The learned judge had in the proceedings before him been addressed on the aspect where it was alleged that fundamental rights relating to employment and labour (Article 41 Constitution) had been violated, and whether the Industrial Court could entertain such claims. While adopting the position enunciated in the South African case of Gcaba Vs Minister of Safety and Security & Others CCT 64/08 (2009) ZACC 26, Majanja, J proceeded:44....I would adopt the position of the Constitutional Court of South Africa in Gcaba Vs Minister of Safety and Security (Supra). The Industrial Court is a specialist court to deal with employment and labour relations matters. By virtue of Article 162(3), section 12 of the Industrial Court Act 2011 has set out matters within the exclusive domain of that court. Since the court is of the same status of the High Court, it must have the jurisdiction to enforce labour rights in Article 41 and the jurisdiction to interpret the Constitution and fundamental rights and freedoms, is incidental to the exercise of jurisdiction over matters within its exclusive domain. In any matter falling within the provisions of Section 12 of the Industrial Court Act, then the Industrial Court has jurisdiction to enforce, not only Article 41 rights but also all fundamental rights ancillary and incidental to the employment and labour relations including interpretation of the Constitution within the matter before it.”37.We have quoted in extenso the pertinent parts of the judgment above for the relevance attached to this appeal. In sum on this ground of jurisdiction, we find as we had stated earlier that the High Court had no jurisdiction to entertain the claim which essentially was based on breaches of contract of employment along with some unstated claims of breaches of rights, as the learned judge did find.38.Believing as we do that the approach taken by Majanja J is the correct one, and in endevouring to meet the ends of justice untrammeled by procedural technicalities, we set aside the order striking out the appellant’s petition and direct that the High Court do transfer it to the Industrial Court which also has jurisdiction and authority to consider the claims of breach of fundamental rights as pertain to industrial and labour relations matters. It is only meet and proper that the Industrial Court do exclusively entertain those matters in that context and with regard to Article 165(5)(b). And in order to do justice, in the event where the High Court, the Industrial Court or the Environment & Land Court comes across a matter that ought to be litigated in any of the other courts, it should be prudent to have the matter transferred to that court for hearing and determination. These three courts with similar/equal status should in the spirit of harmonization, effect the necessary transfers among themselves until such time as the citizenry is well-acquainted with the appropriate forum for each kind of claim. However, parties should not file “mixed grill” causes in any court they fancy. This will only delay dispensation of justice.” 19.Accordingly, I hereby transfer this petition to the Environment and Land Court Nairobi for hearing and final determination. 20.This file is closed. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 26TH DAY OF JUNE 2026R.E ABURILIJUDGE