Introduction
1. The issue for determination in this ruling is the preliminary objection taken by the 1st Defendant challenging the jurisdiction of this Court. The objection is premised on the contention that the dispute concerns land and therefore falls within the exclusive jurisdiction of the Environment and Land Court (“the ELC”).
2. The Plaintiff contests the objection. His position is that the dispute is not one concerning title to, use or occupation of land but is essentially a contractual and commercial dispute arising from agreements entered into between the parties and, in particular, the distribution of the landowners' entitlement arising from a property development.
Background
4. The Plaintiff instituted these proceedings in relation to the development undertaken on LR No. 209/1667/2, now Nairobi/Block 40/319. The dispute has its origins in a family agreement dated 8th November 2021, pursuant to which various apartments arising from the development were said to have been allocated to members of the family, including three apartments to the Plaintiff. The 1st Defendant disputes the nature, validity and legal effect of that agreement.
5. The development was subsequently undertaken pursuant to a Joint Venture Agreement dated 9th February 2022. The Interested Party, Al Kausar Investments Limited, maintains that the development is governed by that Joint Venture Agreement and that it was not a party to the family agreement of 8th November 2021. It further states that the development is substantially complete and that some of the units have been sold, leased or occupied.
6. On 8th October 2025, the Plaintiff filed an interlocutory application seeking, principally, preservation of apartments, profits and proceeds said to constitute the landowners' share in the development. On 10th October 2025, the Court issued interim protective orders restraining dealings with the apartments, shares, profits and proceeds constituting the landowners' 30% share.
7. Following those orders, the parties engaged in mediation and negotiations. On 10th December 2025, certain resolutions were recorded concerning the project and the parties' respective positions. Thereafter, on 2nd February 2026, a Consent was recorded between the Plaintiff, the 2nd Defendant and the 3rd Defendant. The 1st Defendant was not a party to that Consent.
8. The 1st Defendant subsequently filed a Notice of Motion dated 5th March 2026, challenging, among other matters, the jurisdiction of this Court and seeking relief concerning the interim orders and the Consent. It is in the context of that application and the dispute generally that the present jurisdictional objection falls for determination.
The Preliminary Objection
10. The 1st Defendant's contention, in substance, is that because the dispute relates to apartments and a development situated on identified land, it is a dispute falling within the jurisdiction conferred upon the ELC by Article 162(2)(b) of the Constitution.
11. The Plaintiff takes a different view. He submits that the dispute is principally contractual and commercial, arising from the Joint Venture Agreement and the family arrangement concerning the distribution of the landowners' entitlement. The question before the Court, according to the Plaintiff, is not who holds title to the land, nor its use or occupation, but the respective contractual and beneficial rights of the parties in the development.
Analysis and Determination
12. A preliminary objection must concern a pure point of law which, if successful, disposes of the matter without requiring the Court to ascertain facts by way of evidence. It is settled law that where determination of the objection requires the Court to investigate contested facts or exercise discretion, the matter ceases to be a proper preliminary objection.
13. The objection before the Court, however, raises a pure question of law: which court has jurisdiction to determine the dispute as pleaded and disclosed by the proceedings?
14. Jurisdiction is conferred by the Constitution or statute. Article 162(2)(b) of the Constitution establishes the ELC and empowers it to determine disputes relating to “the environment and the use and occupation of, and title to, land.” Article 165(5) correspondingly provides that the High Court shall not have jurisdiction in respect of matters falling within the jurisdiction of the courts contemplated under Article 162(2).
15. The fact that a dispute has some connection with land is not, by itself, determinative of jurisdiction. The Court must examine the real nature of the dispute, the cause of action and the reliefs sought. In Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 Others [2017] KECA 79 (KLR), the Court of Appeal emphasized this distinction, holding that disputes concerning title, use and occupation of land are distinct from disputes which, although connected with land, are essentially contractual or commercial.
16. Applying that test to this case, I do not find that the present dispute is one concerning title to the suit property. There is no issue, on the material before the Court, requiring the Court to determine the registered ownership of LR No. 209/1667/2, now Nairobi/Block 40/319, or to adjudicate a competing claim to title.
17. Neither is the substance of the Plaintiff's claim a dispute concerning the use or occupation of the land.
18. The substantive controversy concerns the 8th November 2021 family agreement, its nature, validity, interpretation and legal effect, and the rights and entitlements said to arise from it. The Plaintiff seeks recognition and preservation of apartments, profits and proceeds said to represent the landowners' entitlement arising from the development.
19. The subsequent Joint Venture Agreement dated 9th February 2022 forms part of the factual and contractual framework within which the development was undertaken. Whether the family agreement survived that Joint Venture Agreement, whether it is binding upon the parties, and what rights, if any, it confers are matters of contractual interpretation and enforcement.
20. The 1st Defendant's challenge to the validity and enforceability of the family agreement does not assist the jurisdictional objection. Those are contested questions which may require evidence at the hearing of the substantive dispute. They do not, at this stage, change the character of the claim or convert a contractual dispute into a dispute concerning title, use or occupation of land.
21. Put differently, the land is the subject matter upon which the parties' contractual rights are to be enjoyed; it is not the cause of action upon which the Court is called upon to determine those rights.
22. The fact that the reliefs sought may ultimately affect apartments constructed upon the land does not, without more, confer exclusive jurisdiction upon the ELC. As held in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 Others (supra), jurisdiction is determined by the nature of the dispute the Court is required to adjudicate, not merely by the property in respect of which the dispute has arisen.
23. I am therefore satisfied that the dispute, as presently pleaded, is substantially contractual and commercial. It falls within the jurisdiction of this Court.
24. For the foregoing reasons, I find that the 1st Defendant's objection to the jurisdiction of this Court is not merited, and is hereby dismissed.
25. Costs of the preliminary objection shall abide the outcome of the suit.
26. It is so ordered
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17 DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent
1. The issue for determination in this ruling is the preliminary objection taken by the 1st Defendant challenging the jurisdiction of this Court. The objection is premised on the contention that the dispute concerns land and therefore falls within the exclusive jurisdiction of the Environment and Land Court (“the ELC”).
2. The Plaintiff contests the objection. His position is that the dispute is not one concerning title to, use or occupation of land but is essentially a contractual and commercial dispute arising from agreements entered into between the parties and, in particular, the distribution of the landowners' entitlement arising from a property development.
Background
4. The Plaintiff instituted these proceedings in relation to the development undertaken on LR No. 209/1667/2, now Nairobi/Block 40/319. The dispute has its origins in a family agreement dated 8th November 2021, pursuant to which various apartments arising from the development were said to have been allocated to members of the family, including three apartments to the Plaintiff. The 1st Defendant disputes the nature, validity and legal effect of that agreement.
5. The development was subsequently undertaken pursuant to a Joint Venture Agreement dated 9th February 2022. The Interested Party, Al Kausar Investments Limited, maintains that the development is governed by that Joint Venture Agreement and that it was not a party to the family agreement of 8th November 2021. It further states that the development is substantially complete and that some of the units have been sold, leased or occupied.
6. On 8th October 2025, the Plaintiff filed an interlocutory application seeking, principally, preservation of apartments, profits and proceeds said to constitute the landowners' share in the development. On 10th October 2025, the Court issued interim protective orders restraining dealings with the apartments, shares, profits and proceeds constituting the landowners' 30% share.
7. Following those orders, the parties engaged in mediation and negotiations. On 10th December 2025, certain resolutions were recorded concerning the project and the parties' respective positions. Thereafter, on 2nd February 2026, a Consent was recorded between the Plaintiff, the 2nd Defendant and the 3rd Defendant. The 1st Defendant was not a party to that Consent.
8. The 1st Defendant subsequently filed a Notice of Motion dated 5th March 2026, challenging, among other matters, the jurisdiction of this Court and seeking relief concerning the interim orders and the Consent. It is in the context of that application and the dispute generally that the present jurisdictional objection falls for determination.
The Preliminary Objection
10. The 1st Defendant's contention, in substance, is that because the dispute relates to apartments and a development situated on identified land, it is a dispute falling within the jurisdiction conferred upon the ELC by Article 162(2)(b) of the Constitution.
11. The Plaintiff takes a different view. He submits that the dispute is principally contractual and commercial, arising from the Joint Venture Agreement and the family arrangement concerning the distribution of the landowners' entitlement. The question before the Court, according to the Plaintiff, is not who holds title to the land, nor its use or occupation, but the respective contractual and beneficial rights of the parties in the development.
Analysis and Determination
12. A preliminary objection must concern a pure point of law which, if successful, disposes of the matter without requiring the Court to ascertain facts by way of evidence. It is settled law that where determination of the objection requires the Court to investigate contested facts or exercise discretion, the matter ceases to be a proper preliminary objection.
13. The objection before the Court, however, raises a pure question of law: which court has jurisdiction to determine the dispute as pleaded and disclosed by the proceedings?
14. Jurisdiction is conferred by the Constitution or statute. Article 162(2)(b) of the Constitution establishes the ELC and empowers it to determine disputes relating to “the environment and the use and occupation of, and title to, land.” Article 165(5) correspondingly provides that the High Court shall not have jurisdiction in respect of matters falling within the jurisdiction of the courts contemplated under Article 162(2).
15. The fact that a dispute has some connection with land is not, by itself, determinative of jurisdiction. The Court must examine the real nature of the dispute, the cause of action and the reliefs sought. In Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 Others [2017] KECA 79 (KLR), the Court of Appeal emphasized this distinction, holding that disputes concerning title, use and occupation of land are distinct from disputes which, although connected with land, are essentially contractual or commercial.
16. Applying that test to this case, I do not find that the present dispute is one concerning title to the suit property. There is no issue, on the material before the Court, requiring the Court to determine the registered ownership of LR No. 209/1667/2, now Nairobi/Block 40/319, or to adjudicate a competing claim to title.
17. Neither is the substance of the Plaintiff's claim a dispute concerning the use or occupation of the land.
18. The substantive controversy concerns the 8th November 2021 family agreement, its nature, validity, interpretation and legal effect, and the rights and entitlements said to arise from it. The Plaintiff seeks recognition and preservation of apartments, profits and proceeds said to represent the landowners' entitlement arising from the development.
19. The subsequent Joint Venture Agreement dated 9th February 2022 forms part of the factual and contractual framework within which the development was undertaken. Whether the family agreement survived that Joint Venture Agreement, whether it is binding upon the parties, and what rights, if any, it confers are matters of contractual interpretation and enforcement.
20. The 1st Defendant's challenge to the validity and enforceability of the family agreement does not assist the jurisdictional objection. Those are contested questions which may require evidence at the hearing of the substantive dispute. They do not, at this stage, change the character of the claim or convert a contractual dispute into a dispute concerning title, use or occupation of land.
21. Put differently, the land is the subject matter upon which the parties' contractual rights are to be enjoyed; it is not the cause of action upon which the Court is called upon to determine those rights.
22. The fact that the reliefs sought may ultimately affect apartments constructed upon the land does not, without more, confer exclusive jurisdiction upon the ELC. As held in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 Others (supra), jurisdiction is determined by the nature of the dispute the Court is required to adjudicate, not merely by the property in respect of which the dispute has arisen.
23. I am therefore satisfied that the dispute, as presently pleaded, is substantially contractual and commercial. It falls within the jurisdiction of this Court.
24. For the foregoing reasons, I find that the 1st Defendant's objection to the jurisdiction of this Court is not merited, and is hereby dismissed.
25. Costs of the preliminary objection shall abide the outcome of the suit.
26. It is so ordered
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17 DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent