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|Case Number:||Petition E388 of 2020|
|Parties:||Joseph Ngacha Karani v Burhani Foundation, Attorney General, Cabinet Secretary for Lands, Registrar of Lands Nairobi & Inspector General of Police|
|Date Delivered:||23 Sep 2021|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||Antony Charo Mrima|
|Citation:||Joseph Ngacha Karani v Burhani Foundation & 4 others  eKLR|
|Court Division:||Constitutional and Human Rights|
|Case Outcome:||Petition dismissed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
(Coram: A.C. Mrima J.)
PETITION NO. E388 OF 2020
JOSEPH NGACHA KARANI.............................................................,,...........PETITIONER
1. BURHANI FOUNDATION
2. THE ATTORNEY GENERAL
3. CABINET SECRETARY FOR LANDS
4. REGISTRAR OF LANDS NAIROBI
5. INSPECTOR GENERAL OF POLICE....................................................RESPONDENTS
RULING NO. 1
1. The Petitioner herein, Joseph Ngacha Karani, describes himself as a former Mau Mau freedom fighter. It is his grievance that the colonial Government deprived him and his family of their ancestral land for having participated in the armed resistance against the then colonial reign.
2. The Petitioner posits that the colonial Government evicted him and other Mau Mau rebels from their land and forced them into native reserves. He claims that when they returned to their ancestral land upon independence, they found that the land had been subdivided into LR/209/136/159, LR/209/136/270, LR/209/136/271, LR/209/136/272, LR/209/136/282, LR/209/136/284, LR/209/136/285, LR/209/136/287, LR/209/136/288, LR/209/136/290, LR/209/136/291, LR/209/136/292, LR/209/136/293 and LR/209/136/300 (hereinafter referred to as “the parcels of land”) and was being occupied by unknown foreign persons.
3. The Petitioner states that his attempt to have the Government of Kenya and that of Britain to restitute the Mau Mau fighters their land including the parcels of land, lives, livestock and wealth lost during the colonial era have been futile.
4. The instant Petition therefore seeks this Court’s intervention for the claimed violation of Constitutional rights to property occasioned to the Petitioner by the Colonial regime.
5. The Petition is dated 29th October 2020 and is supported by the Petitioner’s Affidavit sworn on an even date.
6. The Petitioner enjoins Burhan Foundation, the 1st Respondent herein, a limited liability company currently in possession of the parcels of land in contention.
7. The 2nd, 3rd, 4th and 5th Respondents are variously sued for the role they play in respect of land ownership in Kenya.
8. The Petitioner prays for the following reliefs;
a. The Court be pleased to issue mandatory order restraining the 1st Respondent by themselves, their agents and/or employees or whomsoever acting on their behalf from transferring, selling, leasing and /or otherwise dealing in any manner whatsoever or interfering with the Petitioner’s parcels of land namely:- LR/209/136/270, LR/209/136/271, LR/209/136/272, LR/209/136/282, LR/209/136/284, LR/209/136/285, LR/209/136/287, LR/209/136/288, LR/209/136/290, LR/209/136/291, LR/209/136/292, LR/209/136/293 and LR/209/136/300.
b. A declaration that the abovementioned parcels of land belong to the Petitioner and his family as their ancestral land and cultural heritage.
c. The Honourable Court does revoke the titles registered in favour of the 1st Respondent, its partners and or subsidiaries.
d. The Honourable Court does order that the 4th Respondent does effect the title transfer changes in favour of the Petitioner after the appropriate documents have been lodged by the Petitioners herein.
e. The 1st Respondent does render vacant possession of the said properties/parcel of lands to the Petitioner.
f. The 5th Respondent to aid in implementation of orders (a) to (e)
g. This Honourable Court be pleased to issue such further orders as it may deem just and expedient for the ends of justice.
h. Costs of this suit.
9. On 27th November 2020, this Court gave directions that parties do address Court on the issue of jurisdiction.
10. Mr. Sakwa, Counsel for the Petitioner filed written submissions on 15th April 2021.
11. Counsel submitted that by dint of Article 165(3) of the Constitution, this Court is vested with jurisdiction to determine the instant dispute. He stated that this High Court has original jurisdiction under Article 22, 23(1) and 258 of the Constitution to hear and determine applications for redress of a denial, violation or infringement of or threat to, a right or fundamental freedom in the bill of rights and empowers every person to institute Court proceedings to assert their rights.
12. Counsel further submitted that under Article 21 of the Constitution, this Court has the mandate to observe, respect, protect and fulfil the rights and fundamental freedoms in the Bill of Rights."
13. On interpretation of the Constitution, Counsel submitted that this Court is vested with jurisdiction under Article 165(3)(d) of the constitution. Reliance was placed on the Supreme Court decision in Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & Others (2012) eKLR where it was stated;
168] A Court's jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law
14. Further reliance was placed on the Apex Court’s decision In Application Number 2 of 2011, In the Matter of the Interim Independent Electoral Commission, Constitutional where it was stated;
Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.
15. Finding support on the foregoing decisions, Counsel submitted that the instant Petition as pleaded raises issues that fall under the jurisdiction of this Court namely; the protection of human rights and property rights.
16. He contended that it is as a result of illegal acquisition and fraudulent sub-division of the initial suit property into many plots that the 1st Respondent among others became illegal occupants and as such are liable to relinquish the said parcels of land to the Petitioner, stop demanding for rental income and also compensate the Petitioner and his family for the monies they have illegally and unconstitutionally extracted from the aforementioned parcels of land over the years.
17. In conclusion, the Petitioner reiterated that it had advanced sufficient grounds and reasons to justify this Court’s jurisdiction.
18. None of the Respondents filed their respective responses on the issue of jurisdiction.
19. As stated above, there is only one preliminary issue which the Court directed the parties to address. It is the issue of jurisdiction.
20. This Court dealt with the aspect of jurisdiction in Nairobi High Court Constitutional Petition E282 of 2020 David Ndii & 4 others v Attorney General & 3 others; Kenya Human Rights Commission & 2 others (Intended Amicus Curiae)  eKLR where it rendered a detailed definition and significance of jurisdiction. This is what yours truly stated: -
24. Jurisdiction is defined in Halsbury’s Laws of England (4th Ed.) Vol. 9 as “…the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for decision.”. Black’s Law Dictionary, 9th Edition, defines jurisdiction as the Court’s power to entertain, hear and determine a dispute before it.
25. In Words and Phrases Legally Defined Vol. 3, John Beecroft Saunders defines jurisdiction as follows:
By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognisance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…. Where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.
26. That, jurisdiction is so central in judicial proceedings, is a well settled principle in law. A Court acting without jurisdiction is acting in vain. All it engages in is nullity. Nyarangi, JA, in Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited  KLR 1 expressed himself as follows on the issue of jurisdiction: -
Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings…
27. Indeed, so determinative is the issue of jurisdiction such that it can be raised at any stage of the proceedings. The Court of Appeal in Jamal Salim v Yusuf Abdulahi Abdi & another Civil Appeal No. 103 of 2016  eKLR stated as follows: -
Jurisdiction either exists or it does not. Neither can it be acquiesced or granted by consent of the parties. This much was appreciated by this Court in Adero & Another vs. Ulinzi Sacco Society Limited  1 KLR 577, as follows;
2) The jurisdiction either exists or does not ab initio …
3) Jurisdiction cannot be conferred by the consent of the parties or be assumed on the grounds that parties have acquiesced in actions which presume the existence of such jurisdiction.
4) Jurisdiction is such an important matter that it can be raised at any stage of the proceedings even on appeal.
28. On the centrality of jurisdiction, the Court of Appeal in Kakuta Maimai Hamisi -vs- Peris Pesi Tobiko & 2 Others (2013) eKLR stated that: -
So central and determinative is the jurisdiction that it is at once fundamental and over-arching as far as any judicial proceedings in concerned. It is a threshold question and best taken at inception. It is definitive and determinative and prompt pronouncement on it once it appears to be in issue in a consideration imposed on courts out of decent respect for economy and efficiency and necessary eschewing of a polite but ultimate futile undertaking of proceedings that will end in barren cui-de-sac. Courts, like nature, must not sit in vain.
29. On the source of a Court’s jurisdiction, the Supreme Court of Kenya in Constitutional Application No. 2 of 2011 In the Matter of Interim Independent Electoral Commission (2011) eKLR held that: -
29. Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid down in judicial precedent ….
30. Later, in Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & Others (2012) eKLR Supreme Court stated as follows: -
A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsels for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality, it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings … where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.
31. And, in Orange Democratic Movement v Yusuf Ali Mohamed & 5 others  eKLR, the Court of Appeal further stated: -
 …. a party cannot through its pleadings confer jurisdiction to a court when none exists. In this context, a party cannot through draftsmanship and legal craftsmanship couch and convert an election petition into a constitutional petition and confer jurisdiction upon the High Court. Jurisdiction is conferred by law not through pleading and legal draftsmanship. It is both the substance of the claim and relief sought that determines the jurisdictional competence of a court...
21. From the foregoing, it is sufficiently settled that a Court’s jurisdiction is derived from the Constitution, an Act of Parliament or both.
22. The gist of the Petition in this matter is the ownership of the parcels of land allegedly on the ground of historical injustices.
23. Contextualizing the above in this matter, the guiding provisions of the Constitution and the law are Articles 165(3) and (6) and 162 of the Constitution and Section 13 of the Environment and Land Court Act respectively.
24. Article 165(3) and (6) elaborately sets out the jurisdiction of the High Court as follows:
(3) Subject to clause (5), the High Court shall have —
(a) unlimited original jurisdiction in criminal and civil matters;
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
(c) jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to consider the removal of a person from office, other than a tribunal appointed under Article 144;
(d) jurisdiction to hear any question respecting the interpretation of this Constitution including the determination of—
(i) the question whether any law is inconsistent with or in contravention of this Constitution;
(ii) the question whether anything said to be done under the authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution;
(iii) any matter relating to constitutional powers of State organs in respect of county governments and any matter relating to the constitutional relationship between the levels of government; and
(iv) a question relating to conflict of laws under Article 191; and
(e) any other jurisdiction, original or appellate, conferred on it by legislation.
(6) The High Court has supervisory jurisdiction over the subordinate Courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior Court.
25. Article 162(2) and (3) provides as follows: -
(2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—
(a) employment and labour relations; and
(b) the environment and the use and occupation of, and title to, land.
(3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).
26. The legislation contemplated under Article 162(3) is the Environment and Land Court Act.
27. Section 13 thereof outlines the Environment and Land Court’s jurisdiction as follows: -
(1) The Court shall have original and appellate jurisdiction to hear and determine all dispute in accordance with Article 162(2) (b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.
(2) In exercise of its jurisdiction under Article 162(2) (b) of the Constitution, the Court shall have power to hear and determine disputes—
(a) relating to environmental planning and protection, climate issues, land use, planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;
(b) relating to compulsory acquisition of land;
(c) relating to land administration and management;
(d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and
(e) any other dispute relating to environment and land.
(3) Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution.
28. The issue of the jurisdiction of the specialized Courts has been determined with finality by the superior Courts in the famous Karisa Chengo & 2 others v Republic case. The Court of Appeal in Karisa Chengo & 2 others v Republic Civil Appeal Nos. 44, 45 & 76 of 2014  eKLR observed as follows: -
The Committee of Experts in its Final Report thus, adverted to three main factors in securing anchorage in the Constitution for the specialized Courts. These were, first, setting out in broad terms the jurisdiction of the ELC as covering matters of land and environment … but leaving it to the discretion of Parliament to elaborate on the limits of those jurisdictions in legislations. Secondly, and more fundamentally, the establishment of the ELC was inspired by the objective of specialization in land and environment matters by requiring that ELC Judges were, in addition to the general criteria for appointment as Judges of the superior Courts, to have some measure of experience in land and environment matters. Lastly, the Committee of Experts ensured the insertion in the Constitution of a statement on the status of the specialised Courts as being equal to that of the High Court, obviously to stem the jurisdictional rivalry that had hitherto been experienced between the High Court and the Industrial Court…...
29. The matter was appealed to the Supreme Court in Petition No. 5 of 2015 Republic vs. Karisa Chengo & 2 Others  eKLR. The Supreme Court rendered itself as follows: -
 … Article 162(1) categorises the ELC and ELRC among the superior Courts and it may be inferred, then, that the drafters of the Constitution intended to delineate the roles of ELC and ELRC, for the purpose of achieving specialization, and conferring equality of the status of the High Court and the new category of Courts. Concurring with this view, the learned Judges of the Court of Appeal in the present matter observed that both the specialised Courts are of “equal rank and none has the jurisdiction to superintend, supervise, direct, shepherd and/or review the mistake, real or perceived, of the other”. Thus, a decision of the ELC or the ELRC cannot be the subject of appeal to the High Court; and none of these Courts is subject to supervision or direction from another.
 In addition to the above, we note that pursuant to Article 162(3) of the Constitution, Parliament enacted the Environment and Land Court Act and the Employment and Labour Relations Act and respectively outlined the separate jurisdictions of the ELC and the ELRC as stated above. From a reading of the Constitution and these Acts of Parliament, it is clear that a special cadre of Courts, with suis generis jurisdiction, is provided for. We therefore entirely concur with the Court of Appeal’s decision that such parity of hierarchical stature does not imply that either ELC or ELRC is the High Court or vice versa. The three are different and autonomous Courts and exercise different and distinct jurisdictions. As Article 165(5) precludes the High Court from entertaining matters reserved to the ELC and ELRC, it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High Court.
 It follows from the above analysis that, although the High Court and the specialized Courts are of the same status, as stated, they are different Courts. It also follows that the Judges appointed to those Courts exercise varying jurisdictions, depending upon the particular Courts to which they were appointed. From a reading of the statutes regulating the specialized Courts, it is a logical inference, in our view, that their jurisdictions are limited to the matters provided for in those statutes. Such an inference is reinforced by and flows from Article 165(5) of the Constitution, which prohibits the High Court from exercising jurisdiction in respect of matters “reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or (b) falling within the jurisdiction of the Courts contemplated in Article 162(2).
30. On whether the specialized Courts have jurisdiction to deal with constitutional issues including the interpretation of the Constitution and infringement of the rights and fundamental freedoms, the Court of Appeal in Nairobi Civil Appeal No. 6 of 2012, Daniel N Mugendi -vs- Kenyatta University & 3 others  eKLR quoted with approval the High Court decision in Petition No.170 of 2012, United States International University (USIU) vs The Attorney General & Others where Majanja J referred to the South African Court in Gcaba Vs Minister of Safety and Security & Others CCT 64/08 (2009) ZACC 26, in respect of Courts’ jurisdictional limits and constitutional powers donated to specialist Courts by observing as follows: -
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. (emphasis added).
31. The foregoing is the obtaining legal position.
32. The matter, however, did not end there. A further problem arose. It was on the cases raising ‘cross-cutting’ or ‘cocktail’ or ‘mixed grill’ issues within either Courts.
33. Initially there were two schools of thought in the High Court on the matter. One school favoured the ‘pre-dorminant purpose test’ whereas the other school rooted for the ‘pre-dorminant issue before Court test’.
34. The proponents of the former include Ngugi, J who rendered himself in Suzanne Achieng Butler & 4 Others vs Redhill Heights Investments Limited & Another (2016) EKLR as follows: -
23. When faced with a controversy whether a particular case is a dispute about land (which should be litigated at the ELC) or not, the Courts utilize the Pre-dominant Purpose Test: In a transaction involving both a sale of land and other services or goods, jurisdiction lies at the ELC if the transaction is predominantly for land, but the High Court has jurisdiction if the transaction is predominantly for the provision of goods, construction, or works.
24. The Court must first determine whether the pre-dominant purpose of the transaction is the sale of land or construction. Whether the High Court or the ELC has jurisdiction hinges on the predominant purpose of the transaction, that is, whether the contract primarily concerns the sale of land or, in this case, the construction of a townhouse.
41. Munyao, J was for the other test. In Lydia Nyambura Mbugua v Diamond Trust Bank Kenya Limited & Another  eKLR the Learned Judge argued as follows: -
25. ……. On my part, I would modify the above test, and hold the position that what is important when determining whether the court has jurisdiction, is not so much the purpose of the transaction, but the subject matter or issue before court, for I think that the purpose of the transaction, may at times be different from the issue or subject matter before court. Let us take the transaction of a charge as an example. The predominant purpose of creating a charge is for one to be advanced some financial facilities. However, when it comes to litigation, the predominant issue may not necessary be the money, but the manner in which the chargee, is exercising its statutory power of sale. Here, I trust that you will see the distinction between the predominant purpose of the transaction and the predominant issue before court. That is why I hold the view, that in making a choice of which court to appear before, one needs to find out what the predominant issue in his case is, and not necessarily, the predominant purpose of the transaction. If the litigant’s predominant issue will touch on the use of land, or occupation of land, or a matter that affects in one or another, title to land, then such issue would fall for determination before the ELC.
42. The Court of Appeal had an occasion and dealt with the issue. In Co-operative Bank of Kenya Limited v Patrick Kang’ethe Njuguna & 5 others, Civil Appeal No. 83 of 2016  eKLR, the Court dealt with the issue as follows: -
 Article 260 aforesaid echoes the traditional definition of land under the common law doctrine known as Cujus est solum, eius est usque ad coelum et ad inferos (cujus doctrine) which translates to ‘whoever owns [the] soil, [it] is theirs all the way [up] to Heaven and [down] to Hell’. As with our Constitution, the doctrine defines land as the surface thereof, everything above it and below it as well….…
 Indeed, considering the above definitions, the inevitable conclusion to be drawn is that land connotes the surface of the land, and/or the surface above it and/or below it.”
 …[F]or land use to occur, the land must be utilized for the purpose for which the surface of the land, air above it or ground below it is adapted. To the law therefore, land use entails the application or employment of the surface of the land and/or the air above it and/or ground below it according to the purpose for which that land is adapted.
43. The Court of Appeal, therefore, settled for the ‘pre-dorminant purpose test’. Therefore, that is the test I will use in this case.
44. The Petitioner’s grievance herein falls squarely within the provisions of Articles 40 and 64 of the Constitution. As can be discerned from the first prayer in the Petition, the Petitioner seeks to protect his right to property by injuncting the 1st Respondent from “transferring, selling, leasing and /or otherwise dealing in any manner whatsoever or interfering with the parcels of land.
45. Prayers (b), (c), (d) and (e) of the Petition seek declaration of land ownership, revocation of title, transfer of title and declaration of vacant possession respectively.
35. The Environment and Land Court as established by the Constitution and the law is a superior Court of record with the status of the High Court and exercises jurisdiction throughout Kenya. The Court has original and appellate jurisdiction to hear and determine all disputes relating to the environment and the use and occupation of, and title to land.
36. Section 13(7) of the Environment and Land Act empowers the Court to make any order and grant any relief as it may deem fit and just, including; interim or permanent preservation orders including injunctions, prerogative orders, award of damages, compensation, specific performance restitution, declaration, or costs. Those are the very orders the Petitioner seeks in the Petition.
37. There is another forum available to the Petitioner in this matter. It is the National Land Commission established under Article 67 of the Constitution.
38. The Article provides as follows: -
(1) There is established the National Land Commission.
(2) The functions of the National Land Commission are—
(a) to manage public land on behalf of the national and county governments;
(b) to recommend a national land policy to the national government;
(c) to advise the national government on a comprehensive programme for the registration of title in land throughout Kenya; (d) to conduct research related to land and the use of natural resources, and make recommendations to appropriate authorities;
(e) to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress;
(f) to encourage the application of traditional dispute resolution mechanisms in land conflicts;
(g) to assess tax on land and premiums on immovable property in any area designated by law; and
(h) to monitor and have oversight responsibilities over land use planning throughout the country.
(3) The National Land Commission may perform any other functions prescribed by national legislation.
39. Depending on the manner in which the Petitioner crafts and presents his claim, and bearing the doctrine of exhaustion in mind, it is evident that there are two fora where the Petitioner’s claim may be addressed. That is either before the National Land Commission or the Environment and Land Court.
40. Having so said, it is this Court’s finding and holding that the High Court’s jurisdiction is hereby ousted in this matter.
41. In the end, the Petition dated 29th October, 2020 is hereby struck out with no orders as to costs.
42. It is so ordered.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 23RD DAY OF SEPTEMBER 2021.
A. C. MRIMA
Ruling No. 1 virtually delivered in the presence of:
No appearance for Counsel for Petitioner.
No appearance for the Respondents.
Elizabeth Wanjohi – Court Assistant