The defendant raised a preliminary objection dated 16.4.26 to the effect that this court lacks jurisdiction to hear and determine the plaintiff’s suit.
The gist of the defendant’s objection is that the constitution and statutory frameworks delineates the jurisdiction of matters relating to leases to the Environment and Land Court hereinafter referred to as ‘ELC’.
The defendant cited the provisions of Article 162(2) (b) and 165(5) (b) of the constitution that have set out the jurisdiction of the ELC and the high court.
The defendant further submitted that section 13(2) (d) and (e) of the Environment and Land Act grants the ELC jurisdiction over disputes relating to land, including leases, tenancies and contracts involving land.
The defendant further cited the provisions of section 150 of the Land Act, 2012 which provides that the Environment and Land court established in the Environment and Land Court Act is vested with exclusive jurisdiction to hear and determine disputes, actions and proceedings concerning land under the said Act.
The defendant cited the case of Augustus Kyalo Muli v Beatrice Mbuli & Another (2017) eKLR in support of its case.
The plaintiff opposed the preliminary objection arguing that the same was incompetent, procedurally abusive and designed to purely delay the determination of the claim. The plaintiff submitted that the objection failed the test laid out in the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696.
The plaintiff submitted that the case was purely a debt recovery claim and there was no dispute concerning title or ownership and use of land.
DETERMINATION
The only issue for determination is whether this court has jurisdiction to determine this dispute. The plaintiff’s claim as pleaded in the plaint dated 19.1.26 seeks the following reliefs based on breach of tenancy agreements with respect to:
Kakamega Municipality/Block 1/197, Kakamega Municipality/Block 1/131 and Kakamega Municipality/Block 1/254
i) Rent arrears of Kshs. 94,421,247.85 as at 31.3.26
ii) Interest on the liquidated sum of Kshs. 94,421,247.85 at court rates 7,996,323.90 from the date of invoicing until the date of filing suit
iii) Costs of the suit
It is trite law that a preliminary objection should be based on pure points of law which do not require copious probing of evidence in order to ascertain. The locus classicus on this issue is the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd 1969 EA 696 , where LAW, J.A (as he then was) stated:
“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
Every court has a duty to determine whether or not it has jurisdiction in a particular matter.
In the celebrated case of Owners of Motor Vehicle M.V. Lilian S v Caltex Oil (Kenya) Ltd (1989) KLI 1 Nyarangi,J.A. had this to say:
“Jurisdiction must be acquired before judgment. It is for that reason that a question of jurisdiction once raised by a party or by a court of its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Facts constitute the evidence before the court…the moment a court determines that it has no jurisdiction it has to down its tools and proceed no further.”
Article 162(2) (b) of the constitution provides as follows:
“Parliament shall establish courts with the status of the high court to hear and determine disputes relating to (b) the environment and use and occupation of and title to land.”
Section 13(2) (d) and (e) of the Environment and Land Court Act grants the ELC jurisdiction over disputes relating to land, including leases, tenancies and contracts involving land. It provides:
2 In exercise of its jurisdiction under Article 162(2) (b) of the constitution, the court shall have power to hear and determine disputes;
(d) Relating to public, private and community land and contracts, choices in action or other instruments granting any enforceable interest in land; and
(e) any other dispute relating to environment and land
In the case of Augustus Kyalo Muli v Beatrice Mbuli & Another civil case E135 of 2024 (2025) KEHC 3745 KLR (CIV) 26.3.25 (Ruling) the court held:
“The lease agreement is a contract involving land, and its termination directly affects the plaintiff’s rights to occupy and use property. This places the dispute within the jurisdiction of the ELC as held in Paul Mwai & Another v John Muiruri (2020) eKLR and Amina Mohamed Harith v Chakama Ranching Company Ltd & 5 others (2023) KEHC 1572 (KLR).
There is no dispute that the plaintiff’s case herein is hinged on the existence of lease agreement and use of land between the plaintiff and the defendant. The underlying dispute is fundamentally about the use and occupation of land.
I accordingly find that the preliminary objection as raised by the defendant has merit. The dispute herein relates to use and occupation of land, which falls within the exclusive jurisdiction of the Environment and Land Court. The high court lacks jurisdiction to hear the matter, and the suit is accordingly transferred to the Environment and Land Court Kakamega for hearing and determination.
DATED, SIGNED AND DELIVERED THIS 30 TH JULY 2026
D.O. ONYANGO
JUDGE
1
The gist of the defendant’s objection is that the constitution and statutory frameworks delineates the jurisdiction of matters relating to leases to the Environment and Land Court hereinafter referred to as ‘ELC’.
The defendant cited the provisions of Article 162(2) (b) and 165(5) (b) of the constitution that have set out the jurisdiction of the ELC and the high court.
The defendant further submitted that section 13(2) (d) and (e) of the Environment and Land Act grants the ELC jurisdiction over disputes relating to land, including leases, tenancies and contracts involving land.
The defendant further cited the provisions of section 150 of the Land Act, 2012 which provides that the Environment and Land court established in the Environment and Land Court Act is vested with exclusive jurisdiction to hear and determine disputes, actions and proceedings concerning land under the said Act.
The defendant cited the case of Augustus Kyalo Muli v Beatrice Mbuli & Another (2017) eKLR in support of its case.
The plaintiff opposed the preliminary objection arguing that the same was incompetent, procedurally abusive and designed to purely delay the determination of the claim. The plaintiff submitted that the objection failed the test laid out in the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696.
The plaintiff submitted that the case was purely a debt recovery claim and there was no dispute concerning title or ownership and use of land.
DETERMINATION
The only issue for determination is whether this court has jurisdiction to determine this dispute. The plaintiff’s claim as pleaded in the plaint dated 19.1.26 seeks the following reliefs based on breach of tenancy agreements with respect to:
Kakamega Municipality/Block 1/197, Kakamega Municipality/Block 1/131 and Kakamega Municipality/Block 1/254
i) Rent arrears of Kshs. 94,421,247.85 as at 31.3.26
ii) Interest on the liquidated sum of Kshs. 94,421,247.85 at court rates 7,996,323.90 from the date of invoicing until the date of filing suit
iii) Costs of the suit
It is trite law that a preliminary objection should be based on pure points of law which do not require copious probing of evidence in order to ascertain. The locus classicus on this issue is the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd 1969 EA 696 , where LAW, J.A (as he then was) stated:
“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
Every court has a duty to determine whether or not it has jurisdiction in a particular matter.
In the celebrated case of Owners of Motor Vehicle M.V. Lilian S v Caltex Oil (Kenya) Ltd (1989) KLI 1 Nyarangi,J.A. had this to say:
“Jurisdiction must be acquired before judgment. It is for that reason that a question of jurisdiction once raised by a party or by a court of its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Facts constitute the evidence before the court…the moment a court determines that it has no jurisdiction it has to down its tools and proceed no further.”
Article 162(2) (b) of the constitution provides as follows:
“Parliament shall establish courts with the status of the high court to hear and determine disputes relating to (b) the environment and use and occupation of and title to land.”
Section 13(2) (d) and (e) of the Environment and Land Court Act grants the ELC jurisdiction over disputes relating to land, including leases, tenancies and contracts involving land. It provides:
2 In exercise of its jurisdiction under Article 162(2) (b) of the constitution, the court shall have power to hear and determine disputes;
(d) Relating to public, private and community land and contracts, choices in action or other instruments granting any enforceable interest in land; and
(e) any other dispute relating to environment and land
In the case of Augustus Kyalo Muli v Beatrice Mbuli & Another civil case E135 of 2024 (2025) KEHC 3745 KLR (CIV) 26.3.25 (Ruling) the court held:
“The lease agreement is a contract involving land, and its termination directly affects the plaintiff’s rights to occupy and use property. This places the dispute within the jurisdiction of the ELC as held in Paul Mwai & Another v John Muiruri (2020) eKLR and Amina Mohamed Harith v Chakama Ranching Company Ltd & 5 others (2023) KEHC 1572 (KLR).
There is no dispute that the plaintiff’s case herein is hinged on the existence of lease agreement and use of land between the plaintiff and the defendant. The underlying dispute is fundamentally about the use and occupation of land.
I accordingly find that the preliminary objection as raised by the defendant has merit. The dispute herein relates to use and occupation of land, which falls within the exclusive jurisdiction of the Environment and Land Court. The high court lacks jurisdiction to hear the matter, and the suit is accordingly transferred to the Environment and Land Court Kakamega for hearing and determination.
DATED, SIGNED AND DELIVERED THIS 30 TH JULY 2026
D.O. ONYANGO
JUDGE
1