https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9241

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E405 OF 2026** WAFULA A. WAMALWA .....................................................PETITIONER VERSIS STEPHEN CHEGE NJOROGE LAND REGISTRAR – NAIROBI REGISTRY.................................................................................1ST RESPONDENT BERIA CHOKA LAND REGISTRAR NAIROBI REGISTRY..............................................................................2ND RRESPONDENT CABINET SECRETARY, MINISTRY OF LANDS AND PHYSICAL PLANNING .............................................................................3RD RESPONDENT CHIEF EXECUTIVE OFFICER/SECRETARY PUBLIC SERVICE COMMISSION..........................................................................4TH RESPONDENT AND EDWARD LERINA OLE KOIYAKI ............................1ST INTERESTED PARTY BLUE LIME LIMITED.................................................2ND INTERESTED PARTY MWADI WOMEN ENTERPRISES LIMITED.............3RD INTERESTED PARTY SYOKIMAU FARM LIMITED.....................................4TH INTERESTED PARTY ETHICS AND ANTI CORRUPTION COMMISSION.5TH INTERESTED PARTY SALAT SAMAN OLOW ..............................................6TH INTERESTED PARTY **RULING ON JURISDICTION** 1. The petitioner herein Aggrey Wafula filed the petition and notice of motion both dated 17th June 2025. The reliefs sought in the petition for which conservatory orders are sought in the notice of motion include: 2. **A declaration that the administrative process known as Registrar’s hearings under Section 79 of the Land Registration Act, 2012 as currently implemented by the 1st and 2nd respondents is unconstitutional, unlawful and void for want of clear legal framework and procedural safeguards;** 3. **A declaration that any cancellation, rectification, alteration, transfer or gazettement of land titles arising from such impugned administrative process is unconstitutional, null and void.** 4. **An order directing that the implementation and operation of the Land Registration Act, 2012 be suspended and uncontinued by the 2nd respondents until the cabinet Secretary for Lands and physical planning (3rd respondents formulates, enacts and publishes clear, lawful and constitutionally compliant regulations governing their Constitution, procedure and operation** 5. These are just the three out of the ten reliefs that the petitioner is seeking in his petition dated 17/6/2026. 6. When the petition was brought to me under certificate of urgency, I certified it as urgent and directed that the petitioner be notified to appear exparte virtually this morning to address the court on the petition. 7. This notification was informed by the court’s observation that the petition as a whole and the application for conservatory orders are misplaced. 8. From the few reliefs that I have reproduced in this short ruling, and I need not go deeper into the merits thereof, it is clear that the cause of actions is in the wrong court. 9. Jurisdiction is the power conferred on courts, and tribunals by either the Constitution or the statutes or both. A court of law cannot arrogate itself jurisdiction that it is devoid of and hear and determine a matter neither can parties confer jurisdiction on a court by consent. 10. The Principle of law espoused in **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)** isthat jurisdiction can be raised at any time of the proceedings by parties or by the court on its own motion; and that once a court of law establishes that it is devoid of jurisdiction, it must do no more than down its tools still holds. 11. 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)** case added its voice to this hallowed principle when it stated, quite clearly that: ***“Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law could only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which was conferred upon it by law. The issue as to whether a court of law had jurisdiction to entertain a matter before it, was not one of mere procedural technicality; it went to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings.*** ***Where the Constitution exhaustively provided for the jurisdiction of a court of law, the court must operate within the Constitutional limits. It could not expand its jurisdiction through judicial craft or innovation. Nor could Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the constitution conferred power upon Parliament to set the jurisdiction of a court of law or tribunal, the legislative would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”*** 1. In line with the above principles, the jurisdiction of the High Court is derived from the Constitution in Article 165 and many other statutes enacted by Parliament of Kenya. 2. The Constitution also establishes other Superior Courts which include the Supreme Court as an apex court, the Court of Appeal and the specialized courts contemplated in Article 162 (2). 3. Under Article 162 (2) (b), the Constitution contemplates the establishment of the Environment and Land Court, with jurisdiction to hear and determine disputes relating to the environment and the use and occupation of, and title to land. To give effect to the above Article, sub Article (3) mandates Parliament to determine the jurisdiction and functions of the courts contemplated in clause (2) above. 4. In 2012, Parliament enacted the Environment and Land Court Act and under Section 13, the Act establishes jurisdiction of the court and the orders that the court can make. 5. There are other many Acts of Parliament that confer jurisdiction on the Environment and Land Court and these Acts include the Land Act, 2012 and Land Registration Act. On restriction of Jurisdiction as extrapolated by the Supreme Court in the **S.K Macharia Vs KCB** (**Supra)** case, Article 165(b) of the Constitution expressly bars the High Court from hearing and determining disputes which are exclusively reserved for the Supreme Court and the courts contemplated under Article 162(2) of the Constitution. These courts are the Employment and Labour Relations Court and he Environment and Land Court. 6. Therefore, albeit Article 165(3) (a) (d) of the Constitution provides that the High Court has unlimited original jurisdiction in Criminal and Civil matters (b) Jurisdiction to determine the question of denial, violation, infringement or threatened rights or fundamental freedoms in the bill of rights, (c) any question respecting interpretation of the Constitution including alleged inconsistency of the law with the Constitution as well as constitutional powers of state organs in respect of County Government and other matters as stated therein, that jurisdiction is subject to Article 165(5) (b) which I have reproduced above. 7. That being the case, and as the petition herein seeks reliefs which are exclusively in the realm of the jurisdiction of the Environment and Land Court, I must do what **Owners of Motor Vessel Lilian “S”** commands. I decline jurisdiction and down my tools, knowing that any merit order made without jurisdiction is null and void. Accordingly, for want of jurisdiction, this court declines to entertain the petition and notice of motion dated 17/6/2026. 8. As to whether I should strike out the petition, I note that the matter falls within the jurisdiction of a sister court with the status of the High Court as stipulated in Article 162 of the Constitution. I am equally aware, as was stated in the case of **Pamoja Women Dev. Programme & 3 others Vs Jackson Kihumbu Wangombe & another in Kiambu HC Civil case No. 15/2015** where Prof Joel Ngugi J (as he then was) citing his own decision in **Esther Mugure Karegi Vs Penta Tancom Ltd ( Kiambu civil Misc. appl. 19/2015** stated that he agreed that there is no substantive concurrent jurisdiction shared between the High Court of Kenya and the two Article 162(2) Equal status courts. The learned judge however stated as follows and I concur-: ***“... I believe the Constitutional Architecture provides for incidental concurrent jurisdiction. For example there is no longer any serious question that the two equal status courts have case wide jurisdiction to hear and determine any additional other issues raised or pleaded in a case which is primarily on their area of specialization even if those issues normally fall outside their jurisdiction . This is the reason equal status courts can deal with any issues raised respecting the violation of the bill of Rights for example.”*** 1. The learned judge further stated that: *“****In my view, this incidental concurrent jurisdiction includes the ability of both the High Court and the equal status courts to deal with certain procedural or administrative questions that present quasi-judicial issues where the court in question is requested to act in the interest of justice or due administration of justice. This is where, I would locate the ability of any of the three superior courts of cognate jurisdiction to transfer to the counterpart superior court any case filed before it that would more appropriately be adjudicated in the cognate superior court. Under this incidental concurrent jurisdiction, the High Court was able, for example, to transfer certain matters to the Environment and Land Court and the Employment and Labour Relations Court”.*** 1. This decision rendered on 15/12/2015 was given support by the Court of Appeal in the case of **Mugendi v Kenyatta University & 3 others (Civil Appeal 6 of 2012) [2013] KECA 41 (KLR) (17 May 2013) (Judgment)** which is a departure from the old reasoning in **Abraham Mwangi Wamigwi Vs Simon Mbiriri Wanyiku & another [2912] eKLR** in which the court held that where a suit was instituted before a court having no jurisdiction, such a suit could not have been transferred to a court where it ought to have been properly instituted; and that that the suit instituted in a court devoid of jurisdiction is a nullity in law and that whatever was a nullity in law was in the eyes of the law nothing and that the court could not have purported to transfer nothing and move it into something through a procedure known as transfer***.*** 2. In the **Daniel Mugendi** (supra) Case, the Court of Appeal stated as follows on the question of whether courts of equal status and the High court could have matters filed in the respective Courts transferred to the other courts with jurisdiction, where the courts find themselves in such situations: ***“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.”*** 1. The above shift acknowledges the purpose in law, being to attain the ends of justice and facilitate access to justice and in doing so, the court can transfer a case on its own motion. 2. For the above reason, I shall not strike out this petition as filed in the wrong court. I direct that the matter is hereby transferred to the Environment and Land Court at Nairobi to be heard and determined on its merits before a concurrent constitutional and Human Rights Division of the said Court. 3. Accordingly, this file from this end is closed. **Dated, Signed and Delivered at Nairobi virtually this 25th Day of June 2026** **R.E ABURILI** **JUDGE**