Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutPetition dated 24/04/2023 (Thika)

Kariuki, Ndegwa and Kibuthu As Secretary, Chair Person & Treasurer of Kiambu County Tenants Welfare Association & 7 others v Kiambu County Executive Committee & 4 others (Constitutional Petition E005 of 2023) [2025] KEELC 2864 (KLR)

Environment and Land Court
27 March 2025
5,627 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court struck out a Kiambu residents' petition over municipality status, ruling public participation complaints belong in the High Court, with no costs ordered.

What this practically means

#

Executive summary

#
The Petitioners, members of welfare and residents' associations in Kiambu County, filed a Petition and Notice of Motion dated 24/04/2023 seeking declarations that the Respondents, public authorities, failed to involve the public in conferring municipality status on various localities and in zoning, contrary to Articles 10, 35, 174(c) and 183(1)(b) of the Constitution and the National Government Coordination Act and County Government Act. They also sought aggravated and general damages for violation of rights to a clean and healthy environment under Articles 42, 69 and 70. The 1st to 3rd Respondents raised a preliminary objection contending the Environment and Land Court lacked jurisdiction because the Petition challenged legislative and administrative processes under the Urban Areas and Cities Act and County Government Act, matters for the High Court, and that the suit was a mongrel of prayers and an abuse of process. The 4th and 5th Respondents did not participate. Framing two issues - jurisdiction and appropriate orders - Mogeni J applied the predominant purpose test from the Court of Appeal in Co-operative Bank v Njuguna. The Court found the predominant issue to be public participation and governance, with the environmental claim ancillary, placing the dispute within the High Court's jurisdiction under Article 165(3). The Court also declined the Petitioner's invitation to re-examine Supreme Court and Court of Appeal precedent, citing Kenya Hotel Properties. Allowing the preliminary objection, the Court struck out the Petition and, treating it as public interest litigation, ordered each party to bear its own costs.

Questions the Court framed

#

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

  1. 1.Whether or not this Court is clothed with jurisdiction to hear and determine these proceedings
  2. 2.What orders commend themselves to be given

Key legal issues

#
01

Whether the Environment and Land Court has jurisdiction over a petition principally complaining of failure of public participation in conferring municipality status

Holding

The Court lacks jurisdiction; the predominant purpose of the petition is public participation and governance rights, which fall under the High Court's jurisdiction under Article 165(3)

Reasoning

The Court applied the predominant purpose test endorsed by the Court of Appeal in the Co-operative Bank case. Although the petition cited land use planning, its substance concerned public participation, fair administrative action and access to information in the conferment of municipality status. Rights to a clean environment were ancillary. Such matters lie with the High Court, not the ELC under Article 162(2)(b).

p. 12
02

Whether the Court can re-examine decisions of the Supreme Court and Court of Appeal on public participation

Holding

It cannot; it is bound by superior court decisions

Reasoning

Relying on Kenya Hotel Properties Limited v Attorney General in both the Court of Appeal and Supreme Court, the Court held that entertaining the Petitioner's request to depart from apex court precedent would violate the constitutional judicial hierarchy. A declaration by a court without jurisdiction is a nullity, and inferior courts cannot review, annul or reopen decisions of superior courts.

p. 13
03

Whether the preliminary objection was a valid pure point of law

Holding

Yes; jurisdiction is a pure question of law proper for a preliminary objection

Reasoning

Guided by Mukisa Biscuit Manufacturers, Oraro v Mbaja and Omondi v National Bank of Kenya, the Court confirmed that a preliminary objection must raise pure points of law on assumed pleaded facts. The Supreme Court in Mary Wambui Munene affirmed that jurisdiction is a pure question of law to be resolved on a priority basis.

p. 7

Legal principles established

#
  • Jurisdiction is everything; a court without jurisdiction must down its tools
  • Where a mixed petition raises cross-cutting issues, jurisdiction is determined by the predominant purpose test as settled by the Court of Appeal
  • A subordinate superior court cannot examine, overturn or re-examine decisions of higher courts

Court orders

#
  1. 1.The Notice of Motion Application and Petition dated 24/04/2023 is struck out
  2. 2.Each party shall bear its own costs

The bench

#

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

majority

Wrote the judgment

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

Relief refused

#

Declaratory orders for failure of public participation, aggravated and general damages for violation of rights to clean and healthy environment, and challenge to conferment of municipality status

The Court lacked jurisdiction; the predominant issue was public participation in governance, not land use, so jurisdiction vested in the High Court under Article 165(3)

p. 12

Costs

Since the Petition takes on the form of public interest litigation, each party shall bear its own costs.

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.

Given the foregoing, the Notice of Motion Application and Petition dated 24/04/2023 is hereby struck out. Since the Petition takes on the form of public interest litigation, each party shall bear its own costs.
p. 13Final orders - striking out and costs
Thus this Court is not clothed with the jurisdiction to determine the issue of public participation in relation to the conferment of municipality status for the subject areas mentioned and gazette by the County Government.
p. 12Lack of jurisdiction
Jurisdiction is everything. Without it, a Court has no power to make one more step.
p. 5Doctrine of jurisdiction
The predominant issue, therefore, is the issue of right of public participation in governance of urban areas and municipalities and involvement of citizens through provision of information.
p. 12Predominant purpose test applied

Issues in the judgment

#
minor

Paragraph 12 states the Petitioner posited that the ELC's jurisdiction 'was ousted' - apparently an error for 'was not ousted' given the Petitioner's actual position

minor

Inconsistent Gazette Notice dating within the Preliminary Objection (e.g. No. 11310 dated 2/11/2016 vs others dated 2/11/2018)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kariuki, Ndegwa and Kibuthu As Secretary, Chair Person & Treasurer of Kiambu County Tenants Welfare Association & 7 others v Kiambu County Executive Committee & 4 others (Constitutional Petition E005 of 2023) [2025] KEELC 2864 (KLR)", Case Analysis (2025). Petition dated 24/04/2023 (Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2864/eng@2025-03-27

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