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ELCDismissedELC Petition (Mombasa) — Petition and Notice of Motion dated 27th May, 2024

Njenga & another v National Government Constituencies Development Fund Board & 3 others (Environment & Land Petition E012 of 2024) [2025] KEELC 1488 (KLR)

Environment and Land Court
21 March 2025
8,778 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~35 min to read original · ~4 min brief

The bottom line

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Landowners who skipped the NG-CDF Board's statutory dispute process lost their constitutional challenge, with costs awarded against them.

What this practically means

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Executive summary

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The 1st Respondent, the National Government Constituencies Development Fund Board, raised a preliminary objection dated 3rd July, 2024 against a Petition and Notice of Motion dated 27th May, 2024, in which the Petitioners alleged that the Respondents arbitrarily constructed Khadija Police Station on their parcel LR. 10330/Section 1/MN (Orig. No. 1469/353), violating Articles 10, 27, 40 and 47 of the Constitution, and sought declarations, an injunction and compensation. The objection grounded on three points: the Petition disclosed no constitutional issue; it offended the doctrine of constitutional avoidance; and it offended the doctrine of exhaustion under Section 56 of the NG-CDF Act, 2015. The 2nd Respondent supported the objection, arguing the Petition lacked the precision required by Anarita Karimi Njeru and Mumo Matemu; the Petitioners argued their case raised serious constitutional issues and fell within exceptions to constitutional avoidance and exhaustion. Naikuni J applied Mukisa Biscuits, holding the objection raised pure points of law going to jurisdiction. The court found that the Petitioners were obligated to first exhaust the dispute resolution mechanism in Section 56 of the NG-CDF Act before coming to court, and that their failure amounted to an abuse of process. Although acknowledging its jurisdiction over land disputes under Article 162(2)(b) and Section 13(2) of the ELC Act, the court held it should exercise restraint. The preliminary objection was allowed, the Petition and application were dismissed for lack of jurisdiction, with costs to the 1st and 2nd Respondents. The court left the Petitioners free to submit the dispute to the Board.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the objection meets the required threshold as found from Law and Precedents
  2. 2.Whether the Notice of Preliminary objection dated 3rd July, 2024 is merited
  3. 3.Who bears the Costs of the Notice of Preliminary objection dated 3rd July, 2024

Key legal issues

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01

Whether the preliminary objection raised pure points of law

Holding

The court was satisfied the objection raised pure points of law since it went to jurisdiction

Reasoning

Applying Mukisa Biscuits and successor authorities, the court held that the grounds challenging jurisdiction, constitutional avoidance and exhaustion did not require ascertainment of facts and therefore qualified as preliminary objections properly so called.

p. 11
02

Whether the Petitioners were required to exhaust the dispute resolution mechanism under Section 56 of the NG-CDF Act

Holding

Yes; the Petitioners were obligated to first submit the dispute to the NG-CDF Board before filing the Petition

Reasoning

The dispute concerned use, title and occupation of land allegedly taken for construction of a police station. Section 56 requires civil complaints to be forwarded to the Board in the first instance. Relying on the exhaustion doctrine and its affirmation by the Supreme Court in Albert Chaurembo Mumba, the court found the Petitioners ignored the statutory mechanism, amounting to an abuse of process.

p. 16
03

Whether the court had jurisdiction over the Petition

Holding

The court held it lacked jurisdiction to grant the prayers sought given the unexhausted statutory mechanism

Reasoning

Although the ELC has jurisdiction over land disputes under Article 162(2)(b) and Section 13(2) of the ELC Act, the doctrine of judicial restraint/exhaustion required the Petitioners to first submit the dispute to the Board. The court noted the Petitioners could still approach the Board and return to court if aggrieved.

p. 17
04

Who bears the costs of the preliminary objection

Holding

The 1st and 2nd Respondents, as successful parties, were awarded costs

Reasoning

Applying Section 27(1) of the Civil Procedure Act that costs follow the event, the court awarded costs to the successful Respondents for the objection, application and Petition.

p. 18

Legal principles established

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  • Where an Act of Parliament provides for a clear dispute resolution mechanism, parties must exhaust it before approaching the court
  • A court must exercise restraint and defer to statutory dispute resolution bodies established by legislation for specific disputes
  • A preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct

Court orders

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  1. 1.That the Preliminary Objection dated 3rd July, 2024 be and is found to have merit and is hereby allowed
  2. 2.That the Notice of Motion application and the Petition dated 27th May, 2024 are both dismissed for lack of jurisdiction
  3. 3.That the 1st and 2nd Respondents shall have the costs of the Notice of Preliminary objection dated 3rd July, 2024, the Notice of Motion application and Petition dated 27th May, 2024

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13(2) of the Environment and Land Court Act, No. 19 of 2011

Relief refused

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All prayers in the Petition and Notice of Motion dated 27th May, 2024 (declaration of violation of Articles 10, 27, 40 and 47; injunction; damages; compensation)

The court lacked jurisdiction because the Petitioners failed to exhaust the dispute resolution mechanism under Section 56 of the NG-CDF Act before filing suit

p. 17

Costs

The 1st and 2nd Respondents shall have the costs of the Notice of Preliminary objection dated 3rd July, 2024, the Notice of Motion application and Petition dated 27th May, 2024.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That the Preliminary Objection dated 3rd July, 2024 be and is found to have merit and is hereby allowed.
p. 18Final orders - preliminary objection allowed
That the Notice of Motion application and the Petition dated 27th May, 2024 are both dismissed for lack of jurisdiction.
p. 18Final orders - dismissal for lack of jurisdiction
my strongest finding herein is that they were obligated under the Act to have exhausted the dispute resolution mechanisms availed to them under statute.
p. 16Exhaustion of statutory dispute resolution mechanism
Where there exists suficient and adequate mechanism to deal with a specific issue or dispute by other constitutional designated organs, the jurisdiction of this Court should not be invoked until such mechanisms is exhausted…
p. 16Judicial restraint and deference to statutory fora
It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct.
p. 10Definition of a preliminary objection

Issues in the judgment

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minor

The judgment inconsistently refers to the Petitioners as 'Appellants' in submissions narration

minor

The judgment refers to costs under 'the Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21', conflating the Civil Procedure Act with the Rules

minor

Paragraph 53 refers to the Respondents as 'Defendant', inconsistent with the petition format

minor

The ruling directs the Petitioners to the 'National Constituency Fund Board' although the correct statutory body is the National Government Constituencies Development Fund Board

material

The court relied on Section 56 of the NG-CDF Act to find it lacked jurisdiction even while acknowledging its own jurisdiction over land disputes, without addressing the Petitioners' argument that Section 56 is silent on constitutional disputes

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Njenga & another v National Government Constituencies Development Fund Board & 3 others (Environment & Land Petition E012 of 2024) [2025] KEELC 1488 (KLR)", Case Analysis (2025). ELC Petition (Mombasa) — Petition and Notice of Motion dated 27th May, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1488/eng@2025-03-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.