Boundaries of Jurisdiction: Chengo and Kenya Courts
Kenya has three superior courts at the same hierarchical level that do not exercise the same jurisdiction. Republic v Chengo is the case that makes this distinction easiest to understand. The High Court, the Environment and Land Court, and the Employment and Labour Relations Court are equal in status, but equality of rank does not make their judges interchangeable.
The practical question is important because filing in the wrong
court can waste years. A dispute may contain constitutional language, land
questions, employment questions and ordinary civil claims at the same time.
Chengo does not solve every mixed case automatically, but it gives the starting
rule: identify the court's constitutional and statutory field before asking
whether the case is important, urgent or convenient to hear there.
The unusual
mixed bench that created the case
Republic v Chengo & 2 others, Petition 5 of 2015 [2017] KESC 15
(KLR), arose from an effort to reduce a backlog of criminal appeals. During a
Judicial Service Week in 2013, judges from specialised courts were assigned to
sit with High Court judges. At Malindi, a High Court judge and a judge
appointed to the Environment and Land Court jointly heard criminal appeals.
The Court of Appeal held that the Environment and Land Court judge
lacked authority to determine criminal appeals reserved to the High Court. The
Director of Public Prosecutions appealed to the Supreme Court.
The constitutional question was deceptively simple. Article 162(2)
describes the specialised courts as having the status of the High Court. Did
that equal status allow a judge appointed to one of those courts to exercise
the High Court's criminal appellate jurisdiction? The Supreme Court answered
no.
Status and
jurisdiction are different legal ideas
The Supreme Court held that status concerns hierarchical standing,
while jurisdiction concerns the sphere of legal authority. The three courts
occupy equal rank, but the Constitution deliberately assigned different subject
matter to them.
Article 165 establishes the High Court and gives it broad original
civil and criminal jurisdiction, subject to the exclusions in Article 165(5).
Article 162(2) requires specialised courts for employment and labour relations
and for environment, land use, occupation and title. Parliament then defined
those specialised jurisdictions through the Employment and Labour Relations
Court Act and the Environment and Land Court Act.
Section 13 of the Environment and Land Court Act gives that court
original and appellate jurisdiction over disputes concerning environment and
land, including title, tenure, land administration, public and private land and
related instruments. Section 12 of the Employment and Labour Relations Court
Act gives the labour court exclusive original and appellate jurisdiction over
the employment and labour disputes assigned to it. Neither statute gives those
judges a general criminal appellate jurisdiction.
Why the
judge's appointment matters
Chengo also treated judicial appointment as legally significant.
Judges are not appointed to an undifferentiated pool of superior-court power. A
judge is appointed and sworn to a particular court, and the jurisdiction
exercised follows that constitutional office.
That is why administrative assignment could not solve the problem in
Chengo. The Chief Justice had a legitimate objective in reducing backlog, but
administrative convenience cannot expand jurisdiction fixed by the Constitution
and legislation. Nor can the parties' consent cure the defect.
The principle protects litigants from well-intentioned but
unauthorised adjudication. A judgment from a bench that lacks jurisdiction may
be a nullity even where the hearing was fair, the judges acted in good faith
and the outcome appears substantively reasonable.
The rule
remains active in current cases
Chengo is not a dormant structural decision. Kenyan courts continued
to rely on it in 2025 when deciding whether disputes belonged in the High
Court, Environment and Land Court or Employment and Labour Relations Court.
In Republic v Attorney General; Chege, decided in June 2025, the
High Court relied on Chengo while examining whether an employment-related
judicial review dispute belonged in the specialised labour court. In Republic v
Nairobi City County Government; Amiha Investments, decided in April 2025, the
High Court similarly treated the subject matter as falling within the
Environment and Land Court and transferred the case after concluding that the
High Court lacked jurisdiction.
These cases show the modern practical effect of Chengo.
Constitutional remedies such as judicial review do not automatically belong to
the High Court if the underlying subject matter is one that the Constitution
and statute assign to a specialised court.
Constitutional
questions can still be decided by specialised courts
One common misunderstanding is that only the High Court may
interpret the Constitution. Chengo does not support that proposition. The
specialised courts may determine constitutional questions that arise within
disputes properly falling inside their subject-matter jurisdiction.
An employment case does not become an ordinary High Court case
merely because the employee alleges violation of constitutional rights. A land
dispute likewise does not leave the Environment and Land Court merely because
the claimant asks for declarations or judicial review-type relief. The decisive
inquiry is the real nature of the controversy.
This prevents strategic pleading from defeating specialisation. At
the same time, it requires careful classification where claims genuinely
overlap. Lawyers should identify the dominant or essential dispute and the
statutory jurisdiction connected to the relief requested rather than selecting
a court solely from the constitutional provisions cited in the pleadings.
International
standards support legality, but do not allocate Kenyan jurisdiction
The United Nations Basic Principles on the Independence of the
Judiciary state, among other things, that everyone has the right to be tried by
ordinary courts or tribunals using established legal procedures. The Principles
are not the source of the jurisdiction of Kenya's High Court, Environment and
Land Court or labour court.
Their relevance is broader. They reinforce the rule-of-law idea that
adjudicative power should be exercised through legally established courts and
procedures. In Kenya, however, the precise allocation of power is determined by
Articles 162 and 165 of the Constitution and the statutes enacted under them.
A practical
court-selection method
Before filing, counsel should identify the source of jurisdiction
and then classify the essential subject matter. If the case is fundamentally
about title, occupation, use or administration of land, section 13 of the
Environment and Land Court Act should be considered. If it arises from an
employment or labour relationship, section 12 of the Employment and Labour
Relations Court Act is central. If the matter falls outside the specialised
fields and within Article 165, the High Court may be the proper superior court.
The same analysis should be repeated for each major remedy. A
pleading that combines claims should explain why one court can lawfully
determine the complete controversy, or whether claims must be separated or
otherwise handled through a lawful procedural mechanism.
Judicial administrators must apply the same discipline when
assigning judges. Backlog, workload and convenience are serious practical
concerns, but Chengo requires solutions that respect the judicial office and
jurisdiction to which each judge was appointed.
Why Chengo
still matters
Chengo gives substance to the constitutional idea of specialisation.
The specialised courts were not created as departments of the High Court. They
were given equal standing so that employment and land disputes could be handled
by courts of full superior-court status while remaining within defined fields.
Its lesson is therefore not only "file in the correct
court." It is that lawful adjudication depends on both the correct
institution and a properly constituted bench. Equal rank does not erase the
legal boundaries between judicial offices.
For an ordinary litigant, that distinction can determine whether
years of litigation produce an enforceable judgment or a jurisdictional
nullity. The safest starting point is to ask what the dispute is really about
and which constitutional and statutory provisions give a particular court power
to decide it.
Source note
This article is based on Republic v Chengo & 2 others [2017] KESC 15 (KLR), Articles 162 and 165 of the Constitution of Kenya 2010, section 13 of the Environment and Land Court Act, section 12 of the Employment and Labour Relations Court Act, recent decisions applying Chengo including Republic v Attorney General; Chege [2025] KEHC 9231 (KLR) and Republic v Nairobi City County Government; Amiha Investments [2025] KEHC 4236 (KLR), and the United Nations Basic Principles on the Independence of the Judiciary as non-binding international context.
Suggested citation:
Ronald Serwanga, "Boundaries of Jurisdiction:
Chengo and Kenya Courts" East Africa Legal Insight (9 September 2026).