16.The starting point is to define what a preliminary objection is.The case of Mukisa Biscuits v West End Distributors Ltd  E.A 696 held as follows:
17.A court of law cannot validly take any step without jurisdiction. The moment a party in a suit successfully challenges the jurisdiction of the court, the said court must down its tools. The Supreme Court in the Matter of Interim Independent Electoral Commission  eKLR held as follows:
18.In the instant suit the defendant has based his Preliminary Objection on the ground that this court lacks jurisdiction to hear and determine the Plaintiff’s suit. The issue of jurisdiction is a pure point of law which can determine the matter without having to consider the merits of the case.
19.I have perused the amended plaint in light of the prayers sought therein. The Plaintiff avers that he was the registered owner of parcel of land known as I.R No.9514/6 situated at East of Nakuru Municipality within Nakuru measuring 120 acres allocated to him by the Commissioner of Lands. That in the year 1986, the Government of Kenya requested him to surrender his parcel of land known as L.R No.10978/8 situated at Kampi ya Moto measuring 100 acres to the Government and in return, the government offered to allot him land measuring 120 acres situated in Lanet, Nakuru District from the Lanet Beef Research station. He avers that he consented to the Government’s request on the express agreement and understanding that the government would allot him land measuring 120 acres situated at Lanet, Nakuru District as a consideration of surrendering L.R NO.10978/8 and in consideration of the identified shortcoming affecting L.R NO.9514/6 situated at East of Nakuru Municipality. He contends that he surrendered the land as agreed and he was allotted the parcel of land known as L.R No.9514/6 measuring 120 acres as compensation on 18th August, 1992 but in the year 1998 and 1999 the Agricultural Development Corporation(ADC) apprised him that the land that was allotted to him by the Government constituted encroachment of 40 acres of its land which was adjacent to the property and blocked him from accessing the rest of his property and as a result he filed a suit against ADC seeking orders to have it permanently restrained from trespassing or interfering with his peaceful enjoyment of his property before the high court in HCCC 111 of1999 Titus Kiragu vs ADC but it was dismissed. Being dissatisfied with the High Court Judgement, he appealed to the Court of Appeal in Civil Appeal No. 54 of 2002 Titus Kiragu vs ADC but it was similarly dismissed as the court found that the Land allocated and granted to him as compensation by government had already been transferred to Kenya Meat Commission and hence it could not be allocated to him as it did not belong to the government at the time of allocation.
20.He avers that the court then ordered cancellation of his title to the property to excise the 40 acres claimed by ADC and as a result he lost 40 acres of land and lost access to the remainder of the 80 acres of property whose access was situated through the portion of the 40 acres claimed by ADC hence his title is now threatened with extinction because the government misrepresented itself as regards to the consideration he gave for the 100 acres it acquired from him.
21.The defendant’s view is that the above matters can be addressed by the ELC while the plaintiff opine that this court has jurisdiction to determine the issues as they are within its pecuniary jurisdiction and they are a mixture of both commercial and land use.
22.The jurisdiction of the ELC Court is limited by Article 162(2) and (3) of the Constitution of Kenya and Section 13(2) of the ELC Act No. 19 of 2011. Article 162(2)(b) which states that ELC Court has the mandate to hear and determine disputes relating to use and occupation and title to land.
23.In particular the provisions of Article 162(2) of the Constitution of Kenya 2012 provide as follows: -Parliament shall determine the jurisdiction and functions of the Courts contemplated in clause (2)”.13. Jurisdiction of the Court(1)The Court shall have original and appellate jurisdiction to hear and determine all disputes 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.”
25.The jurisdiction of the High Court is set out under Article 163(3) which states that the High Court shall among others, have; a) Unlimited original jurisdiction in criminal and civil matters.
26.Land is defined under Article 260 of the Constitution. It includes the surface thereof, everything above and below it.
27.Black’s Law Dictionary, 9th Edn; defines the word ‘use’ as being:-‘the application or employment of something; esp. a long continued possession and employment of a thing for the purpose for which it is adapted, as distinguished from a possession or employment that is merely temporary or occasional.’ Emphasis added.
28.In Co-operative Bank of Kenya vs Patrick Kangethe Njuguna & 5 Others (supra) the Court of Appeal stated that for 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.
29.The High Court in HCCC 111 OF 1999 Titus Kiragu vs ADC found that the plaintiff had surrendered 100 acres of his land to government in exchange of 120 acres of land from the government .However, when the plaintiff’s surveyor surveyed the land did not respect the earlier surveys and boundaries and ended up taking 40 acres of land which rightly belonged to ADC.
30.As per prayers (a) and (b) of the amended plaint, the plaintiff/respondent seeks compensation for his lost property by being allocated 40 acres of land on the adjoining property being LR 9514/R by the government. For this court to issue this order it has to ascertain whether the parcel of land LR 9514/R belongs to the government and whether it is still available. This in my view is clearly a land issue that ought to be determined at the onset and it is a dispute relating to use and occupation and title to land which falls squarely within the ambit of Article 162(2)(b) of the Constitution. Prayer (c) of the Amended Plaint relates to land use and its enjoyment which similarly falls within the jurisdiction of the Environment and Land Court. Other prayers are on costs and damages which on merit are grantable by the ELC.
31.From the foregoing, I agree with the Defendant’s Counsel that this court is bereft of jurisdiction to determine this matter.
32.I have considered the authorities referred to me by the Plaintiff/ Respondent and in my considered view the facts of those cases are distinguishable from this case.
33.In the case of Co-operative Bank of Kenya v Patrick Kangethe Njuguna & 5 Others  eKLR, the dominant issue was the settlement of amounts owing from the respondents to the appellant on account of a contractual relationship of a banker and lender. The court found in a nutshell that a charge does not constitute use of land within the meaning of Article 162(2) b of the Constitution of Kenya 2010
34.In the case of Ifdid Ole Tauta & Others v Attorney-General (supra) the Petitioners had inter alia sought a declaration that they, (the Petitioners) together with the Maasai Community of Ngong Hills were entitled to the suit land measuring approximately 577 Hectares or thereabouts and sought an order directing the Government to immediately survey the land and issue title deeds to them, and other bona fide Maasai residents of Ngong Hills. Among the several issues raised were the questions whether the suit ought to have been brought before the Land and Environment Court. And while acknowledging that courts have been faced with applications raising objections on their jurisdiction to entertain suits on matters that fell within the jurisdiction of the courts established under Article 162(2), that court stated that whilst the practice had not been to dismiss the suits, but to transfer them for hearing at the right forum, and concluded that –
35.In the Petition between Patrick Musimba v National Land Commission & 4 Others (supra), the Petitioner challenged firstly the manner in which compulsory acquisition of land had been conducted in Kibwezi Constituency and secondly, the process of the Environmental Impact Assessment (EIA) for the construction of the Standard Gauge Railway (SGR). A Preliminary Objection was raised by the Respondents challenging the jurisdiction of the court on the ground that the court empowered to hear and determine such matters was the Environment and Land Court (ELC) established under the Environment and Land Act (Cap 12A of the Laws of Kenya, (ELC Act) as read with Article 162 of the Constitution. It was submitted that both Articles 162 and 165 of the Constitution limited the jurisdiction of the High Court. In Patrick Musimba vs National Land Commission & 4 others  eKLR- the court while discussing the Concurrent and coordinate jurisdictions of the High Court and the ELC observed that:-
36.In the case of Leisure Lodge Limited vs Commissioner of Lands & 67 Others (supra) a three judge bench of the High Court held that the High Court and the Environment and Land Court have concurrent and coordinate jurisdiction and would determine constitutional matters when raised touching on the Environment and Land and neither the Constitution nor the Environment and Land Court Act Limited the Court’s jurisdiction.
37.It is apparent that no constitutional issue has been raised in the instant case. Even though the plaintiff states that there is an element of a commercial dispute between the parties, it is very clear to me that the predominant issue, and overwhelmingly so, relates to land. The questions raised are, in my view, to be determined by the ELC.
38.I find that the Preliminary Objection has merit and I uphold it.
39.So what happens next? Ordinarily if the court was to find that it has no jurisdiction the next logical step would to be strike out the suit. But in this case the circumstances are different.
40.The matter was filed in 2005 before the creation of the The Environment and Land Court which came into operation in October 2012. It would thus be unjust to strike out the suit. The fairest way to handle the matter is to have the matter determined by that court.
41.Therefore, I hereby direct that this file be transferred to the ELC, Nakuru for hearing and determination. The matter to be placed before the Deputy Registrar, ELC on a date that I shall give shortly.
42.Costs of the objection shall be in the cause. Orders accordingly.