It is most true that this Court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should.  […]  We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution.[1]

Every denial of jurisdiction on the part of a court is an assertion of the power to determine jurisdiction and thus to constitute a norm.[2]

1. Introduction

It is a truism that a neophyte practitioner only learns with experience that until it has the imprimatur of a Court, preferably the Apex Court, uncertainty may linger on the meaning and effect of a constitutional or legislative provision, however clear it may appear to be[3]. This truism applies with even greater force when such provisions are unclear as is the case of those pesky little words that are causing the controversies on proper limits of the authority of the various divisions of the High Court as against those of the ELRC and ELC- that are engaging our attention this morning- Articles 162(2) & (3) and 165(5) of our Constitution.

Perhaps then, I can contribute to the resolution of these controversies if I were simply to draw your attention to a decision of the Supreme Court authoritatively settling them. They might not have known they were doing so, but in a little remarked decision, two of their Honours spoke, in typically oracular, awkward fashion, on them:

“We recognize that, generally, the entry into the sphere of emerging jurisprudence is located at the High Court, which bears original jurisdiction to interpret the Constitution and which has an appellate jurisdiction from lower Courts that address the basic scenarios of fact that spawn issues of jural character. Such early stage of the pronouncement on critical ideas of law is also to be found in the special Courts having the same jurisdiction as the High Court  – such as those on employment and labour relations; and on environment and land [Article 162(2)][4].

We might as well stop for where is the beef with such final determination, but it seems the word ‘jurisdiction’ was being used in a rather cavalier, misleading sense in this passage as a synonym for ‘status’ as used in Article 163(1)- a warning sign of the dangers of careless paraphrasing. Their Honours probably meant ‘jurisdiction’ in the sense of powers reposed in the Court, not authority to entertain an action. A full Supreme Court is now categorical that “it is obvious to us that status and jurisdiction are different concepts.”[5] Yet, it was a conspicuous distinction that two of their own missed.

However, before we start snickering at our superiors for such so elementary a schoolboy error, recall jurisdiction is protean term that is much abused:

Courts, including this Court, it is true, have been less than meticulous in this regard; they have more than occasionally used the term “jurisdictional” to describe emphatic time prescriptions in rules of court. “Jurisdiction,” the Court has aptly observed, “is a word of many, too many, meanings.”).[…..]  Clarity would be facilitated if courts and litigants used the label “jurisdictional” not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority.”[6]  

It is in that sense which notorious RBG[7] counsels- delineation of classes of cases- subject-matter jurisdiction. This is, of course, similar to the one adopted by the Supreme Court in the Karissa Chengo case- “it is clear that the term “jurisdiction”, …., is the Court’s power to entertain, hear and determine a dispute before it.”[8] I prefer Ginsburg’s formulation because not only does it speak directly to the subject of this piece, but also acknowledges that that is not the sole meaning of jurisdiction.

1. The Specialized Superior Courts

With the escape route so beguilingly offered by Mutunga CJ & Ojwang’, SJC, blocked for want of judicial care, we must turn to the actual terms of Articles 162(2) & (3) and 165(5):

162. System of courts

[…..]

(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.

      

165. High Court

(3) Subject to clause (5), the High Court shall have—

(a) unlimited original jurisdiction in criminal and civil matters;

[…..]

(5) The High Court shall not have jurisdiction in respect of matters—

[…..]

(b) falling within the jurisdiction of the courts contemplated in Article 162 (2).

The combined effect of Article 162(3) conferring jurisdiction-granting powers on the ELRC and ELC to Parliament and Article 165(5) removing such jurisdiction from the High Court is truly remarkable. Parliament has essentially been given jurisdiction-stripping powers as far as the High Court’s original and unlimited jurisdiction when acting pursuant to Article 162(3). It would be necessary to investigate just how far such constitutional power can be exercised without causing, to say the least, some concern given usual reactions by the political branches to unpalatable decisions. But that is a different discussion- on which I expect the redoubtable Mr. Okiyah Omtattah will take up though even he might have a hard time overcoming the express qualification on the ‘unlimited’ contained in Article 165(3)- ‘subject to.’

I will confine myself to the discussion of jurisdiction which Parliament has granted to the ELRC and ELC, rather than their propriety. Before doing so, it is worth recording, Mativo J’s recent observation on the determination of allocations of functions between various Superior Courts:

Drawing a line between what matters squarely fall under a particular High Court division, particularly the Constitutional and Human Rights Division is, in my humble view not always a work of mathematical precision especially bearing in mind, let’s face it, most if not all disputes before a court of law will necessarily involve some form of constitutional infraction, directly or indirectly; however remote. Perhaps this is a riddle better solved by way of ‘elimination method.’[9]

But Article 165(5) seems to require such line-drawing, however perilous the task.

I confess at the outset, that my selection from cases considered here from the corpus of relevant decisions, is partial and arbitrary but I hope, representative of the various positions taken.

• Employment and Labour Relations Court

The ELRC seemingly has exclusive jurisdiction to deal with disputes and complaints relating to employment and labour relations. Section 12 of the Employment and Labour Relations Court Act (“the ELRC Act”), appears quite categorical, as to the nature of the jurisdiction of the ELRC:

 

(1) The [Employment and Labour Relations] Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including—

a)	disputes relating to or arising out of employment between an employer and an employee;
(b)		disputes between an employer and a trade union;

 

(c)	disputes between an employers’ organisation and a trade union’s organisation;
(d)		disputes between trade unions;

 

(e)		disputes between employer organisations;
(f)	disputes between an employers’ organisation and a trade union;

 

(g)	disputes between a trade union and a member thereof;
(h)	disputes between an employer’s organisation or a federation and a member thereof;

 

(i)	disputes concerning the registration and election of trade union officials; and
(j)	disputes relating to the registration and enforcement of collective agreements.

It is noteworthy that jurisdiction is conferred in a circular and unhelpful manner by reference to Article 162- original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution- an extraordinary unhelpful formulation. Who is doing the referring? How is the reference done? And absence such referral, is jurisdiction engaged? So exactly how did Parliament determine the ELRC jurisdiction? Remember this is the primary jurisdiction for the rest of it is an extension either by the ELRC Act itself or another Act.  To compound matters the disputes listed are non-exhaustive. In practical terms, how exactly has Parliament determined the jurisdiction of the ELRC?

One of the other written laws extending the ELRC’s jurisdiction would presumably be the Employment Act which by section 87(1) & (2) reserves for exclusive determination by either a labour officer or the ELRC, the identified employee-employer dispute. I just wish to point out that by section 87(3), this reservation does not apply “in a suit where the dispute over a contract of service or any other matter referred to in sub-section (1) is similar or secondary to the main issue in dispute.” This, seems, to open up the possibility of what might termed supplemental jurisdiction available to the High Court, when the employment claim is tacked to or subsidiary to a claim over which it otherwise has jurisdiction.

As far as I can tell, there is precious little guidance around the actual ambit of the ELRC’s jurisdiction in the efflorescence of jurisdictional decisions occupying large chunks of the law reports because its seems to be assumed to be straightforward by simply determining whether it is within the categories of listed disputes.  Or maybe it is one of those things that we instinctively just know fitting Justice Potter Stewart’s understanding of porn- you know it when you see it[10].  

Much cited[11] in this respect is the decision of Majanja J in United States International University (USIU) vs The Attorney General & Others[12] , where he affirmed the autonomy of the ELRC, as co-ordinate Court within our curial system and its autonomy from the High Court’s supervisory mandate. While his entire discussion repays close scrutiny, for present purposes, only two of his observations on the elimination of the High Court’s jurisdiction in respect to employment and labour matters are relevant:

9. A correspondent court to the High Court, that is the Industrial Court, has now been established to deal with employment and labour matters.  It follows that all employment and labour relations matters pending in the High Court shall now be heard by the Industrial Court which is now a court of the status of the High Court.  The High Court therefore lacks jurisdiction to deal with matters of employment and labour matters whether filed in the High Court before or afterthe establishment of the Industrial Court.

[…..]

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.”

A fairly expansive understanding of the ELRC’s jurisdiction, but does not provide much guidance as to the limits of that jurisdiction.

It is easy to discern from their decisions that the Court of Appeal views matters relating to the extent of the ELRC’s jurisdiction as self-evident. Maybe it is the nature of the cases that have been presented thus far. For example, Daniel N Mugendi v Kenyatta University & 3 others[13], the judges, found that as the claim was for breach of contract of employment, it followed that it should have been before the ELRC.

Consider also Donald Osewe Oluoch v Kenya Airways Limited[14] allowing an appeal against a decision of the High Court declining to strike out a civil suit by an employer against its ex-employee to enforce a training bond. Fastening upon the first of the kind of disputes falling within the then Industrial Court’s mandate under a differently worded section 12(1) of the then Labour Institutions Act, 2007 as well Section 87 of the Employment Act, to conclude that it was “clear that employment related disputes are reserved for the Industrial Court” and extends to ex-employees as they arise in the course of employment. By the Court’s lights, it was open to Parliament to restrict the jurisdiction of the High Court:

“Notwithstanding the provisions of Article 165(3)(a) of the Constitution therefore, where a statute confers jurisdiction upon an inferior court or tribunal or upon some other person or authority, the original jurisdiction of the High in such matter is ousted, and the parties to such dispute must submit to the jurisdiction conferred upon that interior tribunal or other person.”

A somewhat startling conclusion that might call for further consideration. As far as interior tribunals are concerned, is it not hornbrook law that such alternative remedy does not oust the jurisdiction of the High Court? The established rule is that absent exceptional circumstances, alternative remedies must be exhausted before moving the High Court but this is not jurisdictional bar[15]. The case referenced by the Court of Appeal did not go so far i.e. an alternative remedy constitutes ouster of the High Court’s jurisdiction. Dulu J’s decision in James Kabugi Macharia v Kenya Tea Development Agency Authority[16] was simply to the effect that as Parliament had donated jurisdiction on employment matters to the Industrial Court, the High Court had no jurisdiction to entertain employment claims. Right or wrong, this is several orders of magnitude below the sweeping proposition that alternative remedies oust the High Court’s jurisdiction.

Given the changes wrought to the jurisdiction of the ELRC by the ELRC Act distinct from the provisions, the Court was considering, beyond the general principle I have highlighted, Donald Osewe is of limited precedential value on that Court’s jurisdiction.

Other opportunities to provide guidance have generally been spurned employing standard, (at times, not so standard) methods of judicial abstention or avoidance. Consider two examples, both before the Court of Appeal, one of which we owe to the one-man precedent-generating machine- Okiyah Omtattah. Alarmed that Prof. Magenta’s term as V/C of Kenyatta University might unlawfully extended beyond the permissible two-term maximum (or so he claimed), he launched constitutional proceedings before the ELRC. On his subsequent application, an injunction was also granted restraining the recruitment of a V/C on the basis of what Wasilwa J agreed was flawed advertisement. Separate appeals[17] against that decision consolidated for joint hearing and determination succeeded but on the narrow procedural grounds that were well-trodden by previous decisions- final orders should not have been granted on an interlocutory application[18]; it is wrong to grant both the principal and alternative reliefs sought in an application[19]; courts should not usurp or micromanage the exercise of powers by other statutory bodies acting within their jurisdictions.[20] You would not know by reading the judgment – there were extensive arguments that the matter ought not have been before the ELRC at all as it was one of the classes of cases it was not authorized to adjudicate upon. No mention was made of this at all in the judgment. So much for the faithfully recycled shibboleth that once jurisdiction is raised it must be determined at once before any further step is taken for jurisdiction is everything[21]. This is a rule of law that enjoys canonical status in our books.[22] But, not a word! At least, it is an addition to the stock of prudential techniques available to duck constitutional issues presented for determination[23]– ignore it. Justice Brandeis eat your heart out. Who says the Kenyan Court is not contributing to development of rich constitutional jurisprudence?

More recently, on a challenge against the assumption of jurisdiction by the ELRC over a decision of the Retirement Benefits Tribunal[24], the Court of Appeal deployed the doctrine of mootness to punt the question of the extent of such jurisdiction. It was a two-pronged demurrer which had been dismissed by Aboudha J- ELRC lacked jurisdiction to hear and determine any dispute relating to retirement benefits or pension scheme and any appeal from the determination of the Retirement Benefits Tribunal & no right of appeal lies to the ELRC as none had been expressly conferred. For Aboudha J, this was an employer-employee dispute, squarely falling within the ELRC’s mandate:

“The appellants are former employees of Kenya Commercial Bank. Their retirement benefits therefore find their rooting on relationship with the Bank as its employees.  This Court has as one of its areas of jurisdiction, resolution of disputes arising out of employer-employee relationship. A purposive interpretation of this jurisdiction includes prospective and former employees such as the appellants before me.  It is therefore erroneous to submit as Senior Counsel Mr. Fred Ojiambo did that this Court lacks jurisdiction in the matter.  This limb of the preliminary objection is therefore disallowed.”[25]

Reversing the order in which they had been argued and determined in the Court and apparently before them, the judges of appeal addressed the right of appeal first concluding that contrary to the ELRC’s holding there was none- “Having found that the appeal does not lie and that ELRC had no jurisdiction for that reason, to determine the appeal, it follows that the court is debarred from hearing and determined the appeal rendering the remaining ground of appeal hypothetical and therefore moot.”[26] This, of course is another improvement on another doctrine of mootness for ordinarily it would apply to an appeal itself. If for one reason or another, issues in proceedings pending before an adjudicative body have become academic and would not confer any practical benefit to any one of the parties, why devote any time and energy to it? Courts exist to resolve real disputes and actual problems, but not to engage in academic peregrinations of no practical utility[27]. Unless, of course the matters raised, even though of no impact to the immediate parties, present a discrete, unsettled legal question that requires resolution in the public interest.[28]  It is but a short step to extend this to grounds of appeal, – because if you succeeded on one of the principal grounds of appeal, no decision is required on the other grounds as they are hypothetical. I wonder if this would apply to proceedings before any superior courts which are invariably mounted on multiple grounds. It is open for a judge to choose one of them, which if upheld, the rest require no determination as they are hypothetical.

Anyway, because the broader question on jurisdiction was moot, determining it would only cause confusion, so it was reserved for the right occasion[29], when presumably it would not cause such confusion. This seems to undermine a promise in one of the early cases of the Court of Appeal- Daniel Mugendi-, holding out the prospect of orderly development of the understanding of the jurisdiction of the ELRC as matters are litigated.[30]

Two opportunities before the Appellate Court to explore the extent of the ELRC’s jurisdiction came and passed with little illumination given. Bereft such guidance, the ELRC is flexing its muscles across the board. Examples abound but a favourite is the ‘mixed grill’[31] decision. In the context of attempts at reviving a kind of claim the Court of Appeal had long put paid too- bootstrapping of a challenge to the exercise of a statutory power of sale under a mortgage/charge by an ex-employer bank to a claim for unlawful termination. Prior to the suite of Labour Laws passed in 2007, all claims went before the Commercial Division of the High Court and did not fare well. Illustrative of this are the unsuccessful attempts by a former Managing Director of KCB to stop the sale of his charged land while he pursued his employment-related claims against it.  Even though on average, the batting rate is still low in terms of obtaining relief, the ELRC court is entertaining such boot-strapped claims, rejecting objections that it lacks jurisdiction over securities of land. The rationale is just where multiple courts have jurisdiction over components of a claim, it would be unjust and impracticable to split each aspect of such a composite suit and divvy them up to a Court with subject-matter jurisdiction over that aspect. A single suit before one of the Courts with jurisdiction is therefore proper. As Aboudha J evocatively put it:

“The objection rekindles the debate on what a Court should do in mixed grill cases. Would an employee who during the tenure of his employment borrowed money or took a mortgage predicated on the employment relationship upon contesting termination of his services split his claim among the various Court? This Court in the case of Peter Mutisya Musembi & another v. National Bank of Kenya (2014) eKLR borrowing from the Australian cases of Dean Patty v. Commonwealth Bank of Australia 2000 FCA 1072 and Philip Morris Inc. v. Adam P. Brown Male Fashions Ltd (1981) 148 CLR became of the view that the argument that this Court and indeed other Courts of concurrent jurisdiction properly siezed of a matter cannot adjudicate upon consequential or factual question which on the face of it appear to be within the exclusive jurisdiction of another Court in the same judicial tier would unreasonably emasculate and whittle down the inherent power of a Court of law to do justice without undue regard to technicalities.”

Justice Ngugi has equally gushingly endorsed this for “At the same time, however, it is imperative that a Court should not approach jurisdiction in an ultra-technocratic fashion as an essentialist parsing of sticks in a bundle. Jurisdiction is a substantive standard aimed at ensuring only the right court or tribunal clothed with the legitimate mandate deals with a dispute or controversy. It is not a jurisprudential thaumatrope to keep litigants guessing to which Court their controversy belongs at the pain of having their timeously pleaded case struck out for not pigeon-holing their claim in the correct box. The correct approach to jurisdiction is one which treats the question functionally as opposed to technically; one that looks at the constitutional objectives in creating equal status Courts as opposed to engaging in an essentialist, taxonomical and categorical analysis.”[32]

So harmony prevails, at any rate as between the High Court and the ELRC. There may be no looming crisis in the horizon yet as judges go about their business shunting parties between the High Court and the ELRC but there are some wrinkles that need to be ironed out. Take an old-fashioned ‘public-interest’ judicial review proceedings challenging propriety of the decision of the Director of Immigration to issue a work permit. Determining the matter without the benefit of submissions, at the leave stage, the matter is, sua sponte, to ELRC on an issue (the appropriate forum of ventilating Constitutional/Administrative Law complaints) that is still mired in controversy. Nor is there any reasoned decision for example teaching blockhead ignoramuses such as yours truly, exactly how the ELRC gets jurisdiction that is conferred by section 8 of the Law Reform Act. It seems clear that work permits or any other act/decision of the Director of Immigration do not come within any of the ten listed matters but is this what is meant by referral to the ELRC? I have no immediate data at hand as to how many of such decisions are replicated in Courts across the country but it would be useful know.

• The Environment and Land Court

Tracking and also supplementing Article 162(2)(b) of our Constitution, section 13 of the Environment and Law Court Act, 2011 (“the ELC Act”) provides:

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.

 

(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.

(4) In addition to the matters referred to in subsections (1) and (2), the Court shall exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court.

At least we have been spared opaque circularity though the silver bullet here would be sub-section 2(a)- any other dispute relating to environment and land. There is no use of the adjective ‘exclusive’ but nothing turns on that.

The competing claims of jurisdiction have notably arisen in the context of securities over land as well as succession matters. I will address each in turn. It is no credit to the diversity of our jural system that depending on location, disputes charges/mortgages or succession etc, it is a lottery as to which Court one should approach for relief.

A good starting point is Mabeya J’s decision in Anthony Raymond Cordeiro v Adrian Noel Calvalho & 5 others[33] on the respective jurisdictions of the ELC and High Court while  addressing an argument that “all disputes touching on land are in the exclusive jurisdiction of the Environmental and Land Court.” For his Honour, the resolution of that issue did not depend solely on the terms of Section 13 of the ELC Act but also those of Article 162(2)(b) which sets  out the limits of the Court. Relying on the definitions of the terms ‘use’, ‘occupation’ and ‘title’ drawn from Black’s Law Dictionary, laid the boundaries of the two respective courts thus:

“It should be noted that the terms use and occupation of, were used conjunctively and not disjunctively. In this regard my view is that the intention in the Constitution is that if an issue arises touching on land in respect of its use, possession and control, then the High Court will have no jurisdiction. If the dispute touching on land is for anything else other than what I have stated, my view is that that dispute will be outside the jurisdiction of the Land Court. This might include disputes between a lender and a land owner where land has been given as security for a facility. My opinion is reinforced by the definition of the term “use” in Black’s Law Dictionary that “the employment of a thing for the purpose for which its is adopted as distinguished from a possession and employment that is merely temporary or occasion.” No doubt land is only used as security on a temporary and occasional basis. It is commoditized occasionally.”

Turning a critical eye on provisions of section 13 of the ELC Act, under this framework, certain sub-sections passed constitutional muster, while others were struck down as infirm though they are still very much in our statute books. Note that this judgment imposes a strict wall of separation between matters exclusively within the ELC’s jurisdiction and those that are not. It cannot touch the latter.

While fully sympathetic with where Mabeya J was coming from, faithfully following paths trodden by no less an authority than the Supreme Court, it far from clear to me whether such transformation of constitutional provisions into technical terms of legal art with specific meaning as given in standard legal dictionaries[34] is correct or consistent with the best reading of our then, and still, nascent Constitution. It may be argued that, if we are genuinely committed to purposive interpretation, dictionaries- stale, incomplete, sometimes arbitrary, historical records of a past understanding(s) of a particular word- are hardly useful for a living document. They have played, and are playing, an outsized and possibly misleading role in our understanding of not just the Constitution but other legal texts:

“The dictionary determines what meaning may be given to the to the text; it does not determine what meaning must be given to the text. It is a linguistic tool, not a criterion for understanding the legal language of the text. The word of a statute are not fortresses to be conquered with dictionaries. The same is true of all types of legal texts.”[35]

It might also be wondered whether legislative determination as to ELC’s jurisdiction, given that it was a power expressly conferred on them to determine, it was entitled great deference, but those are debates for another day.

Representing another strand of the early attitudes is Nyamweya J declining to erect an impregnable Maginot line between the ELC and the High Court. (Though we were later to learn that her Honour ought not have been in the ELC in the first place as there is before an impregnable Maginot line between the ELC judges and High Court judges erected by the Constitution)[36]. In several decisions, she held that it does not follow that because a matter falls with the jurisdiction of the ELC, that of the High Court is ousted for there are matters which may fall within both- concurrent jurisdiction. It extended to family matters regarding property ownership[37] which could be adjudicated upon by either the family division of the High Court or the ELC. Her Honour relied on Practice Directions[38] for this purpose, thus it is arguable not only are these decisions of a temporary nature but also questionable for such practice directions cannot confer jurisdiction otherwise denied by the Constitution.

 

A three-judge High Court bench[39] has further developed this theme on a probably more secure footing:

Concurrent and coordinate jurisdictions

65. The above analysis lead us to the conclusion that both the High Court and the ELC Court have a concurrent and or coordinate jurisdiction and can determine constitutional matters when raised and do touch on the environment and land. Neither the Constitution nor the ELC Act limit the High Court’s jurisdiction in this respects while a closer reading of the ELC Act reveals  that the ELC Court’s jurisdiction was in 2012 limited by Parliament in so far as constitutional issues touching on land and environment are concerned but the Court of Appeal in Mugendiexpressed the view that the ELC when dealing with disputes concerning the environment and land may also deal with claims of breaches of fundamental rights touching on the subject at hand. We hold that in matters constitution the ELC has jurisdiction not just when it involves clean and healthy environment but also land.
66. A closer reading of the Petition especially the complaints and the reliefs sought would reveal that the petition is simply not about the environment and land. Substantial questions, as found and determined by Kariuki J, have been raised not only on the process of compulsory acquisition of land but also on the integration and generation of the environment. Questions have been raised about denial of access to information as well as a threatened contravention or violation of the right to fair administrative action. Questions have also been raised on the violation and or RE Kenya [SH-WS FID1961074] further threatened violation of the dignity of the petitioner’s constituents. As was stated by Kariuki J: –

“(23) The totality of the allegations, complaints [sic] raised in the petition and the reliefs sought raised substantial questions of law envisaged by the provisions of Article 165 (3) (b) (d) and 165(4). Thus warranting the court in the instant case to certify the matter for referral to the Chief Justice for assigning of an uneven number being not less than three judges for hearing the matter”.

67. The learned Judge was confirming that substantial questions had been raised touching on and concerning Articles 10, 28, 35, and 47 of the Constitution as well. These Articles have nothing to do with land and environment.
68. We are satisfied that although the jurisdiction in constitutional matters conferred by Section 13(3) of the ELC Act upon the  ELC appears limited to questions on and application for redress of a denial violation or infringement or threat to rights or fundamental freedoms relating to a clean and healthy environment under Articles 42,69 and 70 of the Constitution, the section did not purport to confer exclusive jurisdiction in such cases upon the ELC so as to impinge upon the provisions of Article 165(3)(b) & (d) of the Constitution. We are also satisfied that it could not have been the intendment of the draftsmen of the Constitution that when the court is faced with a mixture of causes of action touching on the Constitution, especially on fundamental rights, a separationalistic approach is to be adopted by the court and half the claim dispatched to one court as the other half is retained.

We will come back to these conclusions later but for a moment note the absence in the concurrent jurisdiction jurisprudence of any reference to the jurisdiction-stripping effect of Article 165(5). Once Parliament has conferred jurisdiction on the ELC on a particular area, assuming that conferment passes constitutional muster whether a la Mabeya J, or otherwise, the High Court lacks jurisdiction. There may be work-a-rounds in addressing multiple claims proceedings- possibly playing around with the rigidity of concept of jurisdiction but appeals to negative incorporeal intendments of the draftsmen of the Constitution do not seem that convincing when confronted, for example assertions that is precisely the effect of Article 165(5). Logicians might approve as an application of the Law of the Excluded Middle.

The third, though overlapping, strand of cases which can be detected are conflicting approaches on the appropriate venue for judicial review of executive action potentially concerning the environment or land as reflected decisions of, say, Odunga J in R v CS Mining & others ex parte Cortex Mining Kenya Limited[40], transferring on jurisdictional grounds from the High Court to the ELC, a J/R in respect to cancellation mining licence or Kenya Association of Manufacturers & 2 others v Cabinet Secretary, Ministry of Environment and Natural Resources & 3 others[41]– challenges against the ban of plastic bags. In both cases it found as the matters fell, with the jurisdiction of the ELC[42] because they come within matters specified in section 13 of the ELC Act which does not include the word ‘exclusive’ but Article 165(5) to support the conclusion that it followed the High Court lacked jurisdiction:

“In my view the matters which fall within the ambit of Article 162(2) of the Constitution must be matters within the exclusive jurisdiction of the said specialised Courts. However where the matters raised fall both within their jurisdiction and outside, it would be a travesty of justice for the High Court to decline jurisdiction since it would mean that in that event a litigant would be forced to institute two sets of legal proceedings. Such eventuality would do violence to the provisions of Article 159 of the Constitution.”

Does it therefore follow that provided it’s a mixed claim, the jurisdiction otherwise denied by Article 165(5) is now acquired by default. And Article 159 now applies to jurisdiction? If all a party has to do is tack in an additional non-ELC, for the High Court to assert jurisdiction even over the ELC matters, what about Majanja J’s caution on avoiding forum-shopping for unless Courts hold firm “Litigants and ingenious lawyers would contrive causes of action designed to remove them from the scope of the Industrial Court. Such a situation would lead to diminishing the status of the Industrial Court and recurrence of the situation obtaining before the establishment of the current Industrial Court.”

Chitembwe J views matters differently with little patience for jurisdictional challenges for preferred Courts. In R v The Governor County of Kilifi & other[43], where his Honour lamented the increasingly prevalent practice of state organs facing challenges to the propriety on their actions by throw impediments of alleged ‘jurisdictional’ objection on the path of citizens with genuine cases for relief before the High Court. It warrants extensive citation:

 

The ex-parte applicant contends that its expansion works were abruptly stopped by the respondents without being given a prior notice or hearing. It further contends that its constitutional rights were violated.   It is incurring financial losses due to the stop order issued by the respondents. There is no dispute as to the ownership of the land.    The National Environmental management Authority (NEMA) issued a licence for the works. NEMA seems not to be complaining. The project was advertised for members of the public to make their comments. I do find that the ex-parte applicant’s case deals with the manner in which its work was stopped. The ex-parte applicant is of the view that the works were stopped arbitrarily yet it had obtained all the requisite approvals. This dispute does involve land but a business being undertaken on the land. If NEMA had complained that the conditions in its licence are not being complied with, then it would be an environmental issue to be dealt with by the Environment and Land Court. There is no report from the respondents indicating that the expansion works are contrary to NEMA’s licence.

It should be clear to litigants that not every dispute which involve land should be heard by the environment and Land Court.  Succession disputes involve the distribution of deceased peoples’ estate. Part of the estates usually involve land. There is no requirement that succession cases be heard by the land court.   Majority of human activities take place on land.   Even those charged with criminal cases such as trespass or afray, face cases where the dispute occurred on the land. Where people fight over the ownership of land, the criminal element involves the ownership of the land being the reason for the fight. Should such cases be heard by our colleagues in the Environment and Land Court.   In essence therefore, most activities occur on the land. Where   the   Government   compulsorily   acquires   a   citizen’s   land   and compensation is delayed, the dispute relates to land but the core issue is the compensation. We should learn how to differentiate between what belongs to the historical High Court and what belongs to the Environment and Land Court.    Recently, litigants have formed a habit of raising the issue of jurisdiction between the two courts not necessarily for good reasons. Counsel for the  respondents  have happily  cited  the  case  of REPUBLIC  V REGISTRAR  OF  TITLES  AND  ANOTHER,  EX-PARTE  DAVID GACHINA MURIITHI (supra).    That case was determined by Justice Odunga in 2014. The Judge does not deal with land cases. Counsel for the respondents are not complaining that Justice Odunga ought not to have determined the dispute as it involved a prayer for an order of certiorari relating to the revocation of the ex-parte applicant’s title. We should be sincere on this issue of jurisdiction.

I now turn to a set of decisions from the ELC Court itself. In Athman Salim Mohamed & another v Resiato Munguti & others[44] Githumbi J dismissed a Petition by third parties whose titles had been invalidated, without their participation, as it constituted a collateral attack on the decision of a Court of equal status. Land comprising an estate had been successfully sub-divided and sold to those parties. Initially Gacheche J declined to interfere with those titles as the sub-divisions had already occurred but a renewal application succeeded before Nambuye J and the Petitioners advised to seek relief within the Succession Cause under section 93 of the Law of Succession Act. Of course, that decision can be justified as an abuse of process ruling but I mention it because, part of the Petitioner’s complaint was that in light of Articles 162(2)(b) and 165(5), the High Court in the Succession Case had no business determining the validity of their titles. It therefore mattered naught what Section 93 provided for the High Court had no jurisdiction at all as a constitutional matter. No answers were forthcoming.

We must mention a decision of Sila Munyao J who dismissed a preliminary objection that the ELC court has no jurisdiction over disputes on matrimonial property. His Honour was palpably aghast at such impertinence seeking to limit the otherwise almost limitless jurisdiction of the ELC. After referring to what he obviously regarded as the perspicacious terms, relating to subject-matter as well as relief, of Articles 162(2)(b) and section 13 of the ELC Act, his Lordship observed:

18.The general jurisdiction is set out in Section 13 (1) which emphasizes that the ELC has both original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution, relating to environment and land. Section 13 (2) clarifies the general jurisdiction in Section 13 (1), probably to elaborate more, as to what a matter touching on land and environment is. It sets out matters touching on environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources. Section 13 (2) (e) in very broad terms, states that the court has jurisdiction to hear any other dispute relating to environment and land.

19. It will be seen from Section 13 (2) (d) and  (e) that the ELC has jurisdiction to hear a matter relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and any other dispute relating to environment and land.
20. It will be appreciated that the jurisdiction of the ELC in so far as a dispute involves land or the environment is very wide indeed. In fact, the boundaries are almost limitless. As to the remedies that the ELC can grant, it will be observed that this includes an award of damages.[45]

If Sila Munyao J is right as to the almost limitless jurisdiction (though he silent as to those very far-off outer limits are- the Oort cloud?) of the ELC, does it follow that that of the High Court is correspondingly vanishingly small?

We need not panic as the Court of Appeal has joined the party, clipping any imperialist wings by the specialist Courts. One of the issues presented for decision in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others [46], was whether the ELC rightly entertained a suit involving the exercise of a statutory power of sale. Their Honours (Visram, Karanja & Koome JJ. A), had no doubt they ought not have.  I am not sure I follow their reasoning for rejecting the argument that had found favour with the ELC as the creation of securities over land involved the use of land thus ELC had jurisdiction under Article 162(2)(b) and section 13. For the Court of Appeal, the answer turned on the legal meaning on land as contained in Article 260 and legal text from which the learned Judges concluded use was rather restricted: “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.” They then turned to the proper understanding of land as informed by Black’s Law Dictionary as well as the draft land use policy, to conclude:

 

“Accordingly, 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. Neither the cujus doctrine nor Article 260 whether expressly or by implication recognizes charging land as connoting land use.”

 

By definition, charges do not come within that understanding of land use nor does disposition constitute land use. Both the relevant paragraphs merit reproduction in their entirety:

“36. By definition, a charge is an interest in land securing the payment of money or money’s worth or the fulfillment of any condition (see Section 2 of the Land Act). As such, it gives rise to a relationship where one person acquires rights over the land of another as security in exchange for money or money’s worth. The rights so acquired are limited to the realization of the security so advanced (see Section 80 of the Land Act). The creation of that relationship therefore, has nothing to do with use of the land (as defined above). Indeed, that relationship is simply limited to ensuring that the chargee is assured of the repayment of the money he has advanced the chargor.

37. Further, Section 2aforesaid recognizes a charge as a disposition in land. A disposition is distinguishable from land use. While the former creates the relationship, the latter is the utilization of the natural resources found on, above or below the land. As seen before, land use connotes the alteration of the environmental conditions prevailing on the land and has nothing to do with dispositions of land. Saying that creation of an interest or disposition amounts to use of the land, is akin to saying that writing a will bequeathing land or the act of signing a tenancy agreement constitute land use. The mere acquisition or conferment of an interest in land does not amount to use of that land. Else we would neither speak of absentee landlords nor would principles like adverse possession ever arise. If a disposition were held to constitute land use, an absentee landlord with a subsisting legal charge over his land would never have to contend with the consequences of adverse possession, for he would always be said to be ‘using’ his land simply by virtue of having a floating charge/disposition over the property.”

While it was in the context of charges, on this understanding, far from being limitless, when it comes to land at any rate, it is a very limited jurisdiction indeed. I wonder if it will be possible to wield the appellate scalpel as effectively on the rest of section 13. To be sure, I can well envisage plausible arguments that as the issue in the Co-op Bank case was accounts, discussion on ELC’s jurisdiction was dicta.

• Unpacking the Jurisdictional Confusion

 

Even without reference to most of the alphabet soup of decisions touching on the issue, we have crossed a relatively long circuitous path on what ought to have been a short planks or planks. Despite the lower Court’s best endeavours, confusion and uncertainty still lingers. Yet, speaking on high  its elevated perch, the Supreme Court could not detect the confusing noises emanating from the jurisdictional Babel of the Courts below. For them, it was a matter free of controversy for it was crystal clear:

 

The Constitution of Kenya, 2010 has pronounced itself clearly on the jurisdictional competencies of various Courts of law in Kenya. The drafters of the Constitution, it appears, had the intention of clearly demarcating the jurisdictions of the said Courts so as to pre-empt lacunae and conflicts. Besides the Constitution, there are several statutes which demarcate the jurisdictions of various Courts and tribunals,…

It is all there in the Constitution and various statutes. All we have to do is read them. No lacunae. No conflicts. Justice Black used to say, just read and apply the Constitution as written.[47] As lesser mortals, down the curial hierarchy, not mention even more lowly practitioners, simply cannot get it, some assistance would have been handy. Merely reciting the Constitutional as well as statutory basis (in case of the ELRC & ELC) of the Supreme Court, Court of Appeal[48] , the High Court ELRC and ELC barely scratches the surface, if at all.

Karisa Chengo while loudly disclaiming formalism[49], practices it to the hilt. It is all there, the insistence of clear rules and coherence obtained through the rigorous application of deductive logic; overweening reliance of dictionaries, preferably legal ones to closely parse words used in legal provisions; invocation of formal processes- the exact terms of the appointment as ELC judges via the gazette notice or the contents of the oath taken etc; the absence of thorough-going or any actual underlying policy evaluations i.e. identification of the competing policies at stake, alternative means at accommodating them and relative merits of each and their practical impact; overall the construction of a rigid edifice is law as opposed to policy.[50] It merits close examination, and I would respectfully submit, reconsideration as soon as practicable but that too is a topic for different discussion. For the moment, I note that the Supreme Court was categorical as to the complete separation of the jurisdictions of the three Courts comprising our Superior Courts:

 

“52] 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.”

While it does not state so directly, it seems to be pretty clear that not only did the Honourable Justices, not perceive any lacunae but for them there are bright line restrictions of the jurisdictions of the three Superior Courts which are never to be crossed.  And each should be strictly confined to its specific precinct with no cross-over something that applies with equal force to its judges.

This seems to be to call into question all the talk of concurrent jurisdiction/mixed grill etc seems doomed. Would it be rude to recall Lord Justice Ward’s comments as to risks inherent the higher the judicial ladder one climbs:

 

“I prefer the instincts of the youthful Mr Justice Stanley Burnton before he became corrupted by the arid atmosphere of this court. It goes to prove what every good old-fashioned county court judge knows: the higher you go, the less the essential oxygen of common sense is available to you.”[51]

 

Probably it would be, so let’s not endorse such snarky, unfair comments. Ward is wrong, wisdom and good sense hold are all the rage within Appellate Courts.

Pulling in another direction, with a different take on Karisa Chengo, as well a previous understanding of Article 165(5), is of course the decision of the Court of Appeal, in Law Society of Kenya Nairobi Branch v Malindi Law Society & 6 others[52] by a play of words reading the intentions of the drafters to mean subject-matter jurisdiction of the ELC/ELRC Courts was never meant to be exclusive to those Courts:

“70. Contrast the expression “reserved for the exclusive jurisdiction” with the expression “falling within the jurisdiction”. It is a pointer, in our view, that it was never intended that disputes relating to employment and labour relations and the environment and the use and occupation of, and title to, land would be “reserved for the exclusive jurisdiction” of the specialized courts under Article 162(2). It is also noteworthy that In Re The Matter of the Interim Independent Electoral Commission [2011] eKLR, the Supreme Court of Kenya in construing Article 165(3) of the Constitution that confers jurisdiction on the High Court to hear any question respecting the interpretation of the Constitution noted that although the High Court was entrusted, under that Article, with the mandate to interpret the Constitution, that

“empowerment by itself, however, does not confer upon the High Court an exclusive jurisdiction.”

71. By parity of reasoning, although under Article 162 (2) of the Constitution Parliament is mandated to establish courts with the status of the High Court to hear and determine disputes relating to employment and labour relations and environment and the use and occupation of, and title, to land, that in itself does not confer an exclusive jurisdiction to those specialized courts to hear and determine the specified types of cases. However, as already stated, Article 165 (5) is clear that the High Court has no jurisdiction in respect of matters falling within the jurisdiction of the specialized courts. Whereas Parliament is empowered to enact legislation to confer jurisdiction to the Magistrate’s courts to hear and determine disputes stipulated under Article 162 (2) of the Constitution, it cannot establish a Superior Court or confer upon a Superior Court jurisdiction to hear employment and labour relations cases and environment and land cases.”

I sympathize with the conclusion but some of this reasoning is unconvincing. It is judicial fiat, not application of ordinary understanding of English words that reads the exclusivity in the expression ‘’reserved for the exclusive jurisdiction” and denies it for the phrase “failing within.” The effect of 165(5) is to deny jurisdiction of the High Court over those matters, period. The use of ‘exclusive’ was not so much directed at the subject matter of the ELRC/ELC but recognition that some matters- Advisory Opinions/Presidential Petitions, which may come within the High Court’s jurisdiction,  have been reserved for the Supreme Court. As they point out at the conclusion of the cited passages, for purposes of determining whether or not Parliament could confer jurisdiction on the Magistrates Court, Article 165(5) is simply irrelevant as that is concerned with restrictions on the High Court’s jurisdiction. It is difficult to comprehend what the textual exegesis between the terms of 165(a) & (b) adds to that. It is a wholly immaterial distraction which does not speak to the matter before the Court.

A more direct approach than armchair lexicography may be preferable. It may be time for the Courts, beginning with our Supreme Court to avoid making a fixation of jurisdictional boundaries between the Courts. Sometime, it is indeed important. It is easy to understand, when it comes to the three great departments of governments, separation of powers concern, cause overarching anxiety about boundaries-crossing. History is replete with judicial overreach perhaps most prominently on display by the U.S. Supreme Court between the 1860s until 1937 when a change of guard changed course:

 

“The crucial issue prior to 1937 was whether the Constitution prohibited government- state and federal-from interfering with the free play of economic forces (outside the field of public utilities)-no matter how great the public need. Federal legislation dealing with other phases of national or interstate industry was on important occasions found to invade powers reserved to the states. State laws were frequently found invalid because they impinged on the field of interstate commerce committed by the Constitution to the Federal Congress. And the due process clauses of the Fifth and Fourteenth Amendments were held to bar both state and federal governments from regulating such economic factors as prices, wages and labor relations in businesses “not affected with a public interest.”

Others will give different examples varying degrees of plausibility-, the Warren Court[53], the UK Supreme/Court before and after the enactment of the Human Rights Act[54], the Indian Supreme in the 1960s/70s[55]; the Mason/Brennan Courts[56] in Australia in 1980s/90s etc.  We all have our biases and no consensus will ever be reached while hypocritically accusing those we are opposed to of not respecting apocryphal ever-shifting borders separating the appropriate from inappropriate judicial intervention:

Over all these years the struggle is usually about encroachment across the boundary…that there is such a boundary has not been disputed. But throughout the years of judicial review no cartographer has been able to draw that line with any particular clarity, or at least with the precision necessary to recognise a case of trespass. There has been, Lord Bingham wrote in 1996, difficulty and dispute on the frontier, not alleviated by doubt about where the frontier should be, or, more directly, Lord Goff in 1993 although I am well aware of the existence of the boundary, I am never quite sure where to find it. The absence of any clear boundary is convenient for both those who cry trespass and for the alleged trespasser. [57]

When it comes to the Superior Courts, I am baffled for why are we obsessing- a craze almost- with boundaries? Accepting, as several judges seem to have, that the complexity or untidiness of human affairs will inevitably give rise to jumbled mélange of claims that do not, and cannot, snugly fit into legal categories on which jurisdictional authority has been conferred on Superior Courts whether by the Constitution or statute. We are all Kenya’s judges administering justice best we can, not Svengali-like fusspots waylaying hapless litigants anxious to have their day in Court without crossing jurisdictional minefields. Nor should the privates in the field- lawyers- be singled out for blame in failing to identify the correct forum. Surely, we have reached the stage where most of the time claims are before the designated Court for that dispute. What’s the big deal about those that might not?

We are, it seems to me devoting, too much energy, to what, if we were to adopt the words of Lord Justice Ward of different kind of boundary dispute- “disputes of this kind are a most hateful form of litigation; go away and sort it out.” We are making a fetish of so-called specialization without achieving any social utility for this effort. After all, those staffing ELRC/ELC, have more or less the same qualifications as those of the High Court, regardless of the additional requirement in respect to the ELC[58]. Now that its accepted that the Magistrate’s Court too jurisdiction of matters that came within ELRC/ELC’s jurisdictions[59], are we going to divvy them up into ELC Magistrate’s Court’s and ELRC’s ones as distinct from the ‘common’, ordinary ones? What’s the point? Are we substituting forum-shopping with litigant-hunting as Courts try to attract suits by being more user-friendly?

While the subject-matter may well be different, the law does not, or ought not, turn on Court before which it is presented. The meaning provisions of the bill of rights and other provisions of the Constitution should not change because it is being decided by a person seasoned in environmental matters as opposed to a judge with no such prior experience.  Would we tolerate differences the superintendence of the Executive and/or the Legislature for conformity with the constitution/the law on the basis of which one of the three Superior Courts is seized of it? Can such variations be compatible with the Rule of Law?

Even substantive provisions of law- contract, tort, restitution, statutory interpretation, evidence, etc- which constitute the common fodder of overwhelming, run-of-the-mill cases before all Courts- involve the application of the same legal methodologies taught in law school and honed in practice.  As Lord Sumption, provocatively dismissing legal specialisations as bogus, put it:

“The principle that there are no desert islands in the law seems to me to be a valuable one, which applies well beyond the realm of family law. The essential reason why I am sceptical of specialisation is that I do not regard law as comprising distinct bundles of rules, one for each area of human affairs. This is partly because no area of law is completely self-contained. Family law, like contract law, tax law, insolvency law or almost any other kind of law, has to be applied to a variety of different kinds of property and other legal rights. These have their own legal characteristics, which do not always lend themselves to the ends of justice as a family judge would see them. The programme for this conference is a useful reminder of this.

 

There is, however, a more fundamental reason for deprecating an excessively specialised approach. Law is, or at least should be, a coherent system. Of course, different human problems pose their own peculiar challenges, which the law must accommodate. But these challenges are not always as peculiar as people think. The practice of law, whether by judges or advocates, involves applying a range of common techniques and common instincts to a variety of legal problem…”[60]

Ultimately, jurisdiction is not as unyielding as the rhetoric suggest and a good thing too. They may be, some advantages in maintaining the rhetoric,- a noble lie- has one scholar recently, put it, but that reality is that it is and much more flexible in practice. [61] Though, if you, agree, the dichotomy between jurisdictionality and non-jurisdictionality is fallacious concealment of a more complex reality the lie may not be so noble.[62]

Recognition and application of this reality as far as the domains of the Superior Courts is concerned is of vital importance. Or am I by making these suggestions for playing around with jurisdiction to allow malleability at the edges as between the Superior Courts, advocating, as the great John Marshall, would want us believe, treason to the Constitution?

[1] Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821) per Marshal CJ

[2] Cover “The Supreme Court, 1982 Term — Foreword: Nomos and Narrative” 97 Harv. L. Rev. 4 (1983-1984), footnote

[3] “…the law is what the judges say it is. Before a point of law has been decided in court counsel must be guarded in advising his client. But after a decision he will rely on it for the answer-perhaps with a note of caution that a higher court may reach different decision. A decision of the House of Lords is final not because it is right but because no one can say it is wrong- except writers in legal journals.” ­ Lord Reid, ”The Judge as Law Maker,” JSPTL 22 (1972). Though he was not prepared to go as far as Fredrick Pollock- “that Parliament generally changes the law for worse and that it is the business of judges to keep the mischief of its interference within the narrowest possible bounds.”

[4] Kenya Section of the International Commission of Jurists v Attorney-General [2014] E. A. 69, 67. There are cases which beyond the immediate parties really ought not see the light of day for they deserve the warning label Lord Denning proposed – “put on one side and marked ‘not to be looked at again,” In re King [1963] Ch 459, 483

[5] Republic v Karisa Chengo & 2 others [2017] eKLR at paragraph 51 (emphasis added)

[6] Kontrick v. Ryan, 540 U.S. 443 (2004).

[7] Carmon and Knizhnik Notorious RBG: The Life and Times of Ruth Bader Ginsburg (2015). Apparently she approves this moniker- “Well, my grandchildren love it, and I try to keep abreast of what’s on the Tumblr.” Who are we to question the authority of her grandchildren and insist on commonplace Ginsburg J?

[8] Republic v Karisa Chengo & 2 others [2017]eKLR at paragraph 35

[9] David Ramogi & 4 others v The Cabinet Secretary, Ministry of Energy & Petroleum & 7 others [2017] eKLR

[10] “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that..” Jacobellis v.Ohio, 378 U.S. 184 (1964)

[11] Karisa Chengo v Republic v Karisa Chengo & 2 others [2017] eKLR; Daniel N Mugendi v Kenyatta University & 3 others [2013] eKLR; Kenya Medical Research Institute versus Attorney General & 3 others [2014] eKLR

[12] United States International University (USIU) v Attorney General [2012] eKLR

[13] [2013] eKLR

[14] (unreported) Civil Appeal No. 5 of 2012

[15] e.g. Bethwell Allan Omondi v Telkom (K) Ltd (Founder) & 9 others [2017] eKLR- ”The Appellant might want to argue that he has a constitutional right of access to justice, and we agree that he does, but the High Court and this Court have pronounced themselves many times to the effect that a party must first exhaust the other processes availed by other statutory dispute resolution organs, which are by law established, before moving to the High court by way of constitutional petitions. See International Centre for Policy and Conflict & 4 others vs The Hon. Uhuru Kenyatta and others, Petition No. 552 of 2012, and Speaker of National Assembly vs Njenga Karume [2008] 1KLR 425.”

[16] [2011] eKLR

[17] Olive Mwihaki Mugenda & another v Okiya Omtattah Okoiti & 4 others [2016] eKLR

[18] ibid at paragraph 66

[19] ibid at paragraph 68

[20] ibid at  paragraph

[21] “I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step.”- Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR 1,14

[22] The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity- In Re The Matter of the Interim Independent Electoral Commission [2011] eKLR at paragraph 30

[23] Ashwander v. Tennessee Valley Auth., 297 U.S. 288 (1936) per Brandeis J.

[24] Staff Pension Fund & Kenya Commercial Bank Staff Retirement (DC) Scheme 2006 & Another v Ann Wangui Ngugi & 524 others (unreported) Civil Appeal No. 20 of 2017

[25] Anne Wangui Ngugi & 524 Others v Retirement Benefits Authority & another [2016] eKLR at paragraph 13

[26] Supra, note 15 at pages 17-8

[27] “It is not the function of the courts to decide hypothetical questions which do not impact the parties before them”- Rushbrideger v HM Attorney-General [2003] 3 All ER 784, 797.

[28] See for example- Chief Adjudication Officer v Foster [1993] 1 All ER 705  resolving a fully argued academic issues because of its far-reaching procedural implications; R v Secretary of State ex parte Francois  [1998] 2 WLR 530 at 532-533 – importance of the matters presented warranted resolution even  though they had become academic

[29] ibid at pages 18-9

[30]  These three courts with similar/equal status should in the spirit of harmonization, effect the necessary transfers among themselves until such time as the citizenry is well-acquainted with the appropriate forum for each kind of claim.  However, parties should not file “mixed grill” causes in any court they fancy.  This will only delay dispensation of justice.

[31] I am yet to trace the origin of this popular culinary metaphor. Early uses of it include Daniel N Mugendi v Kenyatta University & 3 others; Ernest Kevin Luchidio v Attorney General & 2 others [2015] eKLR; Didovsky Igor & 11 others v International Bulk Carrier Spa & 2 others [2015] eKLR. But surely ‘mixed claims’, though not as appetizing, is more accurate description and conveys the what is meant better?

[32] Suzanne Achieng Butler & 4 others v Redhill Heights Investments Limited & another [2016] eKLR

[33] (unreported) Nairobi Comm. HCCC No. 627 of 2012

[34] Cf   the famous “But the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic, living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth”– U. S Gompers v. United States, 233 U.S. 604, 610 (1914) per Holmes J. There are many more of similar sentiments across of most jurisdictions. Purposive interpretation eschews such blind reliance (or much) reliance on dictionaries for example Mativo J following a famous South African case “Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context. But it may be useful to stress two points in relation to the application of this principle. The first is that ‘the context’, as here used, is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and within limits, its background.”- David Mwaure Waihiga v Public Service Commission & 4 others [2017] eKLR at paragraph 25

[35] Aharon Barak, Purposive Interpretation in Law (2005)

[36] Republic v Karisa Chengo & 2 others [2017] eKLR. Hitler overrun with that line with accomplished ease-in less than six days- Romanych,  Rupp, &  White Maginot Line 1940: Battles on the French Frontier (2012). A lesson perhaps for our Court of Appeal and Supreme Court?  See further discussion on this case below

[37] Salome Wambui Njau (Suing as an Administratix of the Estate of Peter Kiguru Njuguna (Deceased)) v Caroline Wangui Kiguru [2013] eKLR; Jane Wambui Ngeru v Timothy Mwangi Ngeru [2015] eKLR

[38] “It is however notable in this regard that  this Court shares concurrent jurisdiction with the High Court in certain matters relating to land, and this matters have been described in the Practice Directions On Proceedings In The Environment and Land Courts, and on Proceedings Relating to the Environment and the Use and Occupation of, and Title to Land and Proceedings in other Courts dated 25^th July 2014 and published in Gazette Notice No. 5178 as cases touching on inheritance, succession and distribution of land under the Law of Succession Act. These cases shall continue to be filed and heard by the High Court or the Magistrates Courts of competent jurisdiction”

[39] Patrick Musimba v National Land Commission & 4 others [2015] eKLR

[40] Republic vs. Cabinet Secretary Ministry of Mining & AG, Ex Parte Cortec Mining Kenya Limited Nairobi JR Misc. Appl. No. 298 of 2013

[41] Kenya Association of Manufacturers & 2 others v Cabinet Secretary, Ministry of Environment and Natural Resources & 3 others [2017] eKLR

[42] Position upheld despite counsel’s searing rhetoric which I still think is valid “To uphold the Respondent’s position would deprive or at any rate severely restrict, this Honourable Court’s powers under Article 165(3). For example, the High Court would not have jurisdiction over a  challenge against CS’s for Health order under the Tobacco Control Act banning smoking in public because it would ostensibly reduce air pollution and therefore comes within the exclusive jurisdiction of ELC Court as would challenges to actions of County Governments under the Public Health Act controlling communicable diseases; actions to improve or upgrade slums under the Urban and Cities Act and/or the County Government Act; any action involving national parks and reserves pursuant to the Wildlife Conservation and Management Act; anything relating the roads; those relating to marine life whether under Fisheries Act or other legislations; anything under the Agriculture Act, Forest Act, Pyrethrum Act and come to think of it-the challenges to the Finance Act whether at National or County level for such revenue raising and allocation with have significant impact not only on agencies administering the environment, but tax policy will influence whether or not industries will adopt conservation friendly actions. These examples which abound and can easily be multiplied, exposes the sheer absurdity of the Respondents’ position.” Such attempts at reductio were markedly ineffective which did not even warrant mention.

[43] Malindi High Court J. R. Misc. Cause No. 5 of 2016

[44] Nairobi Case No. 432 of 2013

[45] John Kimani Njenga v Margaret Wanjiru Kanyiri & 2 others [2015] eKLR

[46] Civil Appeal No. 83 of 2016

[47] Hugo LaFayette Black, A Constitutional Faith (1969)

[48] While some aspects of the Court of Appeal may be ‘clear’,  others still attract hullabaloo especially on the right to appeal- for example see the discussions in Erad, Justice Rawal, Nyuttu Agrovet- (both the main judgment and ruling giving leave to appeal)

[49] “The rules of constitutional interpretation do not favour formalistic or positivistic approaches (Articles 20(4) and 259(1))” Quoting n Re the Matter of the Interim Independent Electoral Commission, Sup. Ct. Application No. 2 of 2011; [2011] eKLR. By the way there is a world of difference between formalism – a theory of constitutional adjudication and positivism – a theory of law. They are not equivalent nor are does one imply the latter. In fact, while Dworkin is probably right the legal positivists do not a theory of adjudication (unlike him, they did not need one), it is more compatible with pragmaticism that formalism.

[50]

[51] Oceanbulk Shipping & Trading SA v TMT Asia Ltd [2010] EWCA Civ 79 (15 February 2010) at paragraph 41

[52] Law Society of Kenya Nairobi Branch v Malindi Law Society & 6 others [2017] eKLR

[53] The literature is legion but a snippet, most famously Learned Hand’s Holmes lectures, The Bill of Rights (1958); Philip Kurland’s, “Foreword: ‘Equal in Origin and Equal in Title to the Legislative and Executive Branches of the Government” 78 Harv, L, Rev, 143 (1964) tempered by his “Earl Warren, the ‘Warren Court,’ and the Warren Myths.” 67 Mich. L Rev, 363 (1968). A good review of the Warren Court showing it was in sync with evolving American society- Barry Friedman- “The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009)

[54] Any number of British Home Secretaries- from Michael Howard, David Plunkett, Teresa May.

[55] For a review of the debate see Saha, Arpita, “Judicial Activism in India: A Necessary Evil (July 8, 2008). available at SSRN: https://ssrn.com/abstract=1156979

[56] Dyson Heydon’s successful ‘application for a seat in the High Court’ “Judicial Activism and the Death of the Rule of Law” full text available at https://quadrant.org.au/opinion/qed/2015/08/dyson-heydon-actually-said/

[57] Sir Alan Moses, “Hitting the Balls out of Court: Are Judges Stepping Over the Line? (internal quotations omitted), The Creaney Memorial Lecture (2014), available at https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Speeches/moses-lj-speech-creaney-lecture-2014.pdf

[58] Incidentally, how many of the current crop of ELC judges can genuinely be said to have especial expertise in matters concerning environment and/or land?

[59] Law Society of Kenya Nairobi Branch v Malindi Law Society & 6 others [2017] eKLR

[60] Lord Sumption, Family law at a distance speech delivered At a Glance Conference 2016, Royal College of Surgeons available at https://www.supremecourt.uk/docs/speech-160608.pdf. We need not subscribe to his reductionist view that such common technique is libertarian. As the late A. W. Brian Simpson demonstrates in his book- Leading Cases in Common Law (1995) attempts to reduce the development  or history of the common law to a single paradigm does not comport with its record and betrays its richness and diversity as well as it foibles, prejudices and short-comings.

[61] Fredric Bloom, “Jurisdiction Noble Lie.” 61 Stanford Law Review, 971.

[62] Scott Dodson, “Hybridizing Jurisdiction” 99 California Law Review, 1439 (2011)