Kenya National Highway Authority v Pandya (Suing as the legal administrator of the Estate of Latitchandra Durgashanker Pandya) ((Suing as the legal administrator of the Estate of Latitchandra Durgashanker Pandya)) (Civil Appeal E103 of 2021) [2025] KECA 287 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that land ownership disputes belong in the Environment and Land Court, even when filed as constitutional petitions in the High Court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court (High Court) had jurisdiction to entertain and determine the Petition
- 2.Whether the Petition was essentially a dispute over title to, use and occupation of, and compulsory acquisition of land reserved for the exclusive jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution
- 3.Whether the issue of jurisdiction could be raised for the first time on appeal
Key legal issues
#Whether jurisdiction can be raised for the first time on appeal
Yes. Jurisdiction is a fundamental point of law that may be raised at any stage of the proceedings and by any party, even for the first time on appeal.
Relying on the Supreme Court's decision in Dina Management Limited v County Government of Mombasa, the Court held that because jurisdiction is a threshold and fundamental issue, a party is not estopped from raising it even at the appellate stage, and a court must always satisfy itself that it has jurisdiction regardless of whether the issue appears in the pleadings.
Whether the High Court had jurisdiction over a petition whose dominant substance was title to, and compulsory acquisition of, land
No. The petition was concerned first and foremost with title to land and land acquisition, matters reserved to the Environment and Land Court under Article 162(2)(b) and Section 13 of the Environment and Land Court Act.
Although the respondent framed the petition as enforcement of Article 40 property rights, the declarations sought asked the court to declare who the rightful owner of the suit land was and whether compulsory acquisition was justified. Under Article 165(5)(b) the High Court is barred from matters falling within the jurisdiction of courts contemplated under Article 162(2), which include disputes relating to environment and the use and occupation of, and title to, land.
Whether the constitutional framing of a land dispute ousts the ELC's exclusive jurisdiction
No. A party cannot confer jurisdiction on the High Court by dressing a title and land-ownership dispute as a constitutional rights petition.
The Court was not convinced that the predominant purpose of the petition was solely to enforce Article 40 rights; the proposed issues for determination and the declarations sought showed the real dispute concerned validity of title, ownership, use and occupation of land and compulsory acquisition, all within the ELC's statutory mandate under Section 13 of the Environment and Land Court Act.
Legal principles established
#- The issue of jurisdiction is fundamental, being a point of law, and can be raised at any stage of the case and by any party, including for the first time on appeal.
- A court is bound to always satisfy itself whether or not it has jurisdiction to hear and determine a matter before it, even where jurisdiction is not raised in the pleadings.
- The High Court has no jurisdiction under Article 165(5)(b) of the Constitution to determine disputes relating to the use and occupation of, and title to, land; such disputes are the exclusive preserve of the Environment and Land Court.
Court orders
#- 1.The appellant's appeal is allowed
- 2.The judgment of the High Court (E. Ogola, J.) dated 4th February 2021 is set aside together with all the consequential orders
- 3.The Petition (Mombasa High Court Petition No. 13 of 2015) is remitted to the Environment and Land Court for hearing and determination to its logical conclusion
- 4.Orders issued on 8th March 2018 maintaining status quo are not interfered with unless set aside by the Environment and Land Court when re-hearing the matter
- 5.The Deputy Registrar of the Court to send the file to the Mombasa Environment and Land Court within 21 days and inform the parties accordingly
- 6.The respondent shall meet the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa, Constitutional and Human Rights Division
- Constitutional Petition No. 13 of 2015
- Jurisdiction invoked
- First appeal to the Court of Appeal; jurisdictional dispute determined under Article 165(5) and Article 162(2) of the Constitution read with Section 13 of the Environment and Land Court Act
Relief refused
#Respondent's request for dismissal of the appeal and upholding of the High Court judgment and declarations of ownership
The superior court had no jurisdiction to declare who the rightful owner of the suit land was, as such determination is the preserve of the Environment and Land Court
Costs
The respondent shall meet the costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We are satisfied that the superior court had no jurisdiction to hear and determine the matter and should have found that he had no jurisdiction to declare who the rightful owner of the suit land was
it is trite that the issue of jurisdiction is fundamental being a point of law and therefore can be raised at any stage of the case and by any party
The judgment of the Superior Court (E. Ogola, J.) dated 4th February 2021 be and is hereby set aside together with all the consequential orders
The Petition filed by the respondent in the High Court, being Mombasa High Court Petition No. 13 of 2015 be and is hereby remitted to the Environment and Land Court for hearing and determination to its logical conclusion
Issues in the judgment
#The memorandum of appeal refers to the notice as dated '1th February 2015' whereas the rest of the judgment records it as dated 16th February 2015.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya National Highways Authority v Mandev Ltd & another (Environment and Land Appeal E050 of 2025) [2026] KEELC 3949 (KLR)[2026] KEELC 3949 (KLR)30 Jun 2026
Cite this brief
#Cite this brief
Caselaw, "Kenya National Highway Authority v Pandya (Suing as the legal administrator of the Estate of Latitchandra Durgashanker Pandya) ((Suing as the legal administrator of the Estate of Latitchandra Durgashanker Pandya)) (Civil Appeal E103 of 2021) [2025] KECA 287 (KLR)", Case Analysis (2025). Court of Appeal at Mombasa, first appeal against Mombasa High Court Constitutional Petition No. 13 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/287/eng@2025-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.