REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CIVIL CASE NO E003 OF 2025
RICHARD KEMOLI…………………………………….……..……………PLAINTIFF
VERSUS
COUNTY GOVERNMENT OF VIHIGA…………..……………………DEFENDANT
RULING
INTRODUCTION
1. In a Notice of Preliminary Objection dated 18 th November 2025 and filed on 19 th November 2025, the Defendant herein sought that the Plaintiff's suit be struck out on the grounds that this court lacked jurisdiction to entertain the claim as it arose from a transaction relating to land, that the claim was statute-barred under Sections 4(1)(e) and 10 of the Limitations of Actions Act, and that the Plaint disclosed no cause of action against it.
2. The Defendant’s Written Submissions dated 11 th December 2025 and filed on 17 th December 2025 while those of the Plaintiff were dated 17 th March 2026 and filed on 23 rd March 2026. This Ruling is, therefore, based on the said Written Submissions.
LEGAL ANALYSIS
3. It did appear to this court that the issues the parties placed before it for determination were as follows: -
a. Whether this court had jurisdiction to entertain the Plaintiff's suit;
b. Whether the Plaintiff's claim was statute-barred; and
c. Whether the Plaint disclosed a reasonable cause of action against the Defendant.
4. This court considered the same under the following distinct and separate headings.
I. JURISDICTION
5. The Defendant submitted that the Plaintiff’s claim was founded on an allegation of negligent misrepresentation arising from a transaction that ostensibly occurred in 1994 involving the allocation of the Plot Number 6 Chavakali.
6. It submitted that this court had no jurisdiction to hear and determine the matter and relied on the case of Mukisa Biscuits Manufacturing Company Limited vs West End Distributors (1969) EA 696 EA 696 , where the court held that a preliminary objection consisted of a point of law which if argued as a preliminary point, it would dispose of the suit, an objection which was an objection to jurisdiction of the court.
7. It argued that although the Plaintiff had clothed the suit as one for negligent misrepresentation, the substratum of the dispute concerned the allocation, ownership and title to the Plot Number 6 Chavakali (hereinafter referred to as “the subject property”). It submitted that the court would necessarily have to interrogate the validity of the allocation process, the status of the title and the competing proprietary interests in the land.
8. It argued that a court had to examine the substratum of the suit to determine jurisdiction, and if the core dispute required the determination of issues reserved for a specific court, then the filing court could not assume jurisdiction. It made reference alluded to the exclusive jurisdiction of the Environment and Land Court (ELC) under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act and submitted that the substratum of the dispute was the allocation, ownership, and title of the subject property.
9. It relied on the case of Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 Others [2012] eKLR , where the Supreme Court held that a court's jurisdiction flowed from either the Constitution or legislation, or both, and that a court could only exercise the jurisdiction conferred upon it by the Constitution or other written law. The court further held that a court could not arrogate to itself jurisdiction exceeding that conferred by law.
10. It further placed reliance on the case of Co-operative Bank of Kenya Ltd vs Patrick Kangethe Njuguna & 5 Others (2017) eKLR , where the Court of Appeal clarified that where a dispute directly concerned the use and title to land, it fell within the jurisdiction of the ELC. The court further explained that the jurisdiction of the ELC to determine disputes relating to contracts under Section 13 of the Environment and Land Court Act had to be understood within the context of its jurisdiction to determine disputes connected with the use of land.
11. It submitted that the Plaintiff invited the court to act ultra vires when the proper forum was the ELC or the National Land Commission (NLC). It referred this court to the case of Logitech International Limited vs Kenya Ports Authority & 3 Others (Civil Suit E015 of 2021) [2023] KEHC 17426 (KLR) (12 May 2023) (Ruling) , where it was held that although a claim might have been framed as one for breach of contract or negligence, where the predominant issue fell within the jurisdiction of the ELC, it was that court that was to determine the entire dispute, including all ancillary and consequential issues. It, therefore, urged this court to allow its Preliminary Objection.
12. On his part, the Plaintiff submitted that its claim against the Defendant as pleaded in Paragraph 12 of the Plaint was founded on negligent misrepresentation. He submitted that he had not sought any remedy or relief on land. He stated that he prayed for monetary compensation which was within the jurisdiction of this court and not the ELC. He was emphatic that his claim against the Defendant had nothing to do with the title, use or occupation of land.
13. He submitted that the Constitution limited the jurisdiction of the ELC to disputes relating to the use, occupation, and title to land. He further submitted that Section 150 of the Land Act provided that the ELC had jurisdiction and functions over disputes contemplated under Article 162(2) of the Constitution.
14. He submitted that the jurisdiction of the High Court was set out under Article 163(3) of the Constitution, which granted it unlimited original jurisdiction in criminal and civil matters.
15. He relied on the case of Co-operative Bank of Kenya Ltd vs Patrick Kangethe Njuguna & Others (Msa CACA No 83 of 2016) (KLR citation not provided), where the Court of Appeal held that land use entailed the application or employment of the surface of the land, the air above it or the ground below it according to the purpose for which the land is adapted, and that charging land did not constitute land use.
16. The law relating to preliminary objections was now well settled in the case of Mukisa Biscuit Manufacturing Co Ltd vs West End Distributors Ltd (Supra). One of the recognised grounds upon which a preliminary objection could be properly raised was want of jurisdiction. Indeed, jurisdiction was foundational because a court could not lawfully exercise judicial authority beyond what was conferred upon it by the Constitution or statute as was held in the case of Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 Others (Supra).
17. A perusal of the Plaint dated and filed on 14 th April 2025 showed that t he Plaintiff averred that in or about 1995 he purchased the subject property from the family of the late John Anzeze Lovoni, paid the requisite transfer fees to the Municipal Council of Vihiga, and that by a letter dated 9 th May 1995 the Municipal Council confirmed him as the allottee/owner of the plot. He further stated that the Commissioner of Lands allotted him the subject property vide a Letter of Allotment dated 8 th October 1998, whereupon he paid the stand premium and other charges to the Government to facilitate processing of title.
18. He asserted that he never gained possession of the subject plot but that in 2025, he discovered from the Defendant's records that although the said subject property existed, it belonged to a different person. He attributed his losses and expenses to the Defendant's alleged negligent misrepresentation and sought damages on that basis.
19. It is trite law that courts must not only merely look at how pleadings are framed or clothed. They must unwrap the pleadings to identify the true substance of the dispute. Although the Plaintiff sought financial damages pursuant to what he termed to have been negligent misrepresentation, the root cause of action resulted from the loss of the subject property and the validity of a municipal council allocation.
20. It was, therefore, evident that the substratum of the dispute was the ownership, allocation and proprietary interests over the subject property. In order to determine whether the alleged negligent misrepresentation occurred, this court would necessarily be required to examine the legality of the allocation process, determine whether the Plaintiff acquired any enforceable interest in the suit property, ascertain the status of the competing allotments and determine the proprietary rights of the parties over the land. The alleged negligent misrepresentation was incidental to that principal issue.
21. The aforementioned questions, therefore, fell squarely within disputes relating to title, tenure and interests in land contemplated under Article 162(2)(b) of the Constitution of Kenya, 2010, and Section 13 of the Environment and Land Court Act as was alluded to in the case of Co-operative Bank of Kenya Limited vs Patrick Kangethe Njuguna & 5 Others (Supra) and Logitech International Limited vs Kenya Ports Authority & 3 Others (Supra).
22. Accordingly, this court found and held that jurisdiction to determine the dispute lay with the ELC and not with this court as presently constituted. In line with the holding of the locus classicus Owners of Motor Vessel 'Lillian S' vs Caltex Oil (Kenya) Ltd (1989) KLR 1, where it was held that jurisdiction was everything and without it, a court had no power to make one more step, this court had no mandate to preserve or hear this suit.
23. For the reason that this court had no jurisdiction to hear and determine this matter, the question as to whether the cause of action was statute-barred or if the Plaintiff’s Plaint disclosed a cause of action against the Defendant were issues that were well within the ambit of the ELC.
DISPOSITION
24. For the foregoing reasons, the upshot of this court’s decision was that the Defendant's Notice of Preliminary Objection dated 18 th November 2025 and filed on 19 th November 2025 was merited and the same be and is hereby allowed.
25. It is hereby directed that the matter be and is hereby transferred to the Vihiga Environment and Land Court and that the same be mentioned before the Judge of that court on 30 th September 2026 for further orders and/or directions.
26. As the Defendant is the government and it wold be punitive to award costs against its own citizen, this court has deviated from the general principle that costs follow the events and directs that each party will bear its own costs of the Defendant’s Preliminary Objection.
27. It is so ordered.
DATED and DELIVERED at VIHIGA this 16 th day of September 2026
J. KAMAU
JUDGE
HCCC NO E003 OF 20258
IN THE HIGH COURT OF KENYA AT VIHIGA
CIVIL CASE NO E003 OF 2025
RICHARD KEMOLI…………………………………….……..……………PLAINTIFF
VERSUS
COUNTY GOVERNMENT OF VIHIGA…………..……………………DEFENDANT
RULING
INTRODUCTION
1. In a Notice of Preliminary Objection dated 18 th November 2025 and filed on 19 th November 2025, the Defendant herein sought that the Plaintiff's suit be struck out on the grounds that this court lacked jurisdiction to entertain the claim as it arose from a transaction relating to land, that the claim was statute-barred under Sections 4(1)(e) and 10 of the Limitations of Actions Act, and that the Plaint disclosed no cause of action against it.
2. The Defendant’s Written Submissions dated 11 th December 2025 and filed on 17 th December 2025 while those of the Plaintiff were dated 17 th March 2026 and filed on 23 rd March 2026. This Ruling is, therefore, based on the said Written Submissions.
LEGAL ANALYSIS
3. It did appear to this court that the issues the parties placed before it for determination were as follows: -
a. Whether this court had jurisdiction to entertain the Plaintiff's suit;
b. Whether the Plaintiff's claim was statute-barred; and
c. Whether the Plaint disclosed a reasonable cause of action against the Defendant.
4. This court considered the same under the following distinct and separate headings.
I. JURISDICTION
5. The Defendant submitted that the Plaintiff’s claim was founded on an allegation of negligent misrepresentation arising from a transaction that ostensibly occurred in 1994 involving the allocation of the Plot Number 6 Chavakali.
6. It submitted that this court had no jurisdiction to hear and determine the matter and relied on the case of Mukisa Biscuits Manufacturing Company Limited vs West End Distributors (1969) EA 696 EA 696 , where the court held that a preliminary objection consisted of a point of law which if argued as a preliminary point, it would dispose of the suit, an objection which was an objection to jurisdiction of the court.
7. It argued that although the Plaintiff had clothed the suit as one for negligent misrepresentation, the substratum of the dispute concerned the allocation, ownership and title to the Plot Number 6 Chavakali (hereinafter referred to as “the subject property”). It submitted that the court would necessarily have to interrogate the validity of the allocation process, the status of the title and the competing proprietary interests in the land.
8. It argued that a court had to examine the substratum of the suit to determine jurisdiction, and if the core dispute required the determination of issues reserved for a specific court, then the filing court could not assume jurisdiction. It made reference alluded to the exclusive jurisdiction of the Environment and Land Court (ELC) under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act and submitted that the substratum of the dispute was the allocation, ownership, and title of the subject property.
9. It relied on the case of Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 Others [2012] eKLR , where the Supreme Court held that a court's jurisdiction flowed from either the Constitution or legislation, or both, and that a court could only exercise the jurisdiction conferred upon it by the Constitution or other written law. The court further held that a court could not arrogate to itself jurisdiction exceeding that conferred by law.
10. It further placed reliance on the case of Co-operative Bank of Kenya Ltd vs Patrick Kangethe Njuguna & 5 Others (2017) eKLR , where the Court of Appeal clarified that where a dispute directly concerned the use and title to land, it fell within the jurisdiction of the ELC. The court further explained that the jurisdiction of the ELC to determine disputes relating to contracts under Section 13 of the Environment and Land Court Act had to be understood within the context of its jurisdiction to determine disputes connected with the use of land.
11. It submitted that the Plaintiff invited the court to act ultra vires when the proper forum was the ELC or the National Land Commission (NLC). It referred this court to the case of Logitech International Limited vs Kenya Ports Authority & 3 Others (Civil Suit E015 of 2021) [2023] KEHC 17426 (KLR) (12 May 2023) (Ruling) , where it was held that although a claim might have been framed as one for breach of contract or negligence, where the predominant issue fell within the jurisdiction of the ELC, it was that court that was to determine the entire dispute, including all ancillary and consequential issues. It, therefore, urged this court to allow its Preliminary Objection.
12. On his part, the Plaintiff submitted that its claim against the Defendant as pleaded in Paragraph 12 of the Plaint was founded on negligent misrepresentation. He submitted that he had not sought any remedy or relief on land. He stated that he prayed for monetary compensation which was within the jurisdiction of this court and not the ELC. He was emphatic that his claim against the Defendant had nothing to do with the title, use or occupation of land.
13. He submitted that the Constitution limited the jurisdiction of the ELC to disputes relating to the use, occupation, and title to land. He further submitted that Section 150 of the Land Act provided that the ELC had jurisdiction and functions over disputes contemplated under Article 162(2) of the Constitution.
14. He submitted that the jurisdiction of the High Court was set out under Article 163(3) of the Constitution, which granted it unlimited original jurisdiction in criminal and civil matters.
15. He relied on the case of Co-operative Bank of Kenya Ltd vs Patrick Kangethe Njuguna & Others (Msa CACA No 83 of 2016) (KLR citation not provided), where the Court of Appeal held that land use entailed the application or employment of the surface of the land, the air above it or the ground below it according to the purpose for which the land is adapted, and that charging land did not constitute land use.
16. The law relating to preliminary objections was now well settled in the case of Mukisa Biscuit Manufacturing Co Ltd vs West End Distributors Ltd (Supra). One of the recognised grounds upon which a preliminary objection could be properly raised was want of jurisdiction. Indeed, jurisdiction was foundational because a court could not lawfully exercise judicial authority beyond what was conferred upon it by the Constitution or statute as was held in the case of Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 Others (Supra).
17. A perusal of the Plaint dated and filed on 14 th April 2025 showed that t he Plaintiff averred that in or about 1995 he purchased the subject property from the family of the late John Anzeze Lovoni, paid the requisite transfer fees to the Municipal Council of Vihiga, and that by a letter dated 9 th May 1995 the Municipal Council confirmed him as the allottee/owner of the plot. He further stated that the Commissioner of Lands allotted him the subject property vide a Letter of Allotment dated 8 th October 1998, whereupon he paid the stand premium and other charges to the Government to facilitate processing of title.
18. He asserted that he never gained possession of the subject plot but that in 2025, he discovered from the Defendant's records that although the said subject property existed, it belonged to a different person. He attributed his losses and expenses to the Defendant's alleged negligent misrepresentation and sought damages on that basis.
19. It is trite law that courts must not only merely look at how pleadings are framed or clothed. They must unwrap the pleadings to identify the true substance of the dispute. Although the Plaintiff sought financial damages pursuant to what he termed to have been negligent misrepresentation, the root cause of action resulted from the loss of the subject property and the validity of a municipal council allocation.
20. It was, therefore, evident that the substratum of the dispute was the ownership, allocation and proprietary interests over the subject property. In order to determine whether the alleged negligent misrepresentation occurred, this court would necessarily be required to examine the legality of the allocation process, determine whether the Plaintiff acquired any enforceable interest in the suit property, ascertain the status of the competing allotments and determine the proprietary rights of the parties over the land. The alleged negligent misrepresentation was incidental to that principal issue.
21. The aforementioned questions, therefore, fell squarely within disputes relating to title, tenure and interests in land contemplated under Article 162(2)(b) of the Constitution of Kenya, 2010, and Section 13 of the Environment and Land Court Act as was alluded to in the case of Co-operative Bank of Kenya Limited vs Patrick Kangethe Njuguna & 5 Others (Supra) and Logitech International Limited vs Kenya Ports Authority & 3 Others (Supra).
22. Accordingly, this court found and held that jurisdiction to determine the dispute lay with the ELC and not with this court as presently constituted. In line with the holding of the locus classicus Owners of Motor Vessel 'Lillian S' vs Caltex Oil (Kenya) Ltd (1989) KLR 1, where it was held that jurisdiction was everything and without it, a court had no power to make one more step, this court had no mandate to preserve or hear this suit.
23. For the reason that this court had no jurisdiction to hear and determine this matter, the question as to whether the cause of action was statute-barred or if the Plaintiff’s Plaint disclosed a cause of action against the Defendant were issues that were well within the ambit of the ELC.
DISPOSITION
24. For the foregoing reasons, the upshot of this court’s decision was that the Defendant's Notice of Preliminary Objection dated 18 th November 2025 and filed on 19 th November 2025 was merited and the same be and is hereby allowed.
25. It is hereby directed that the matter be and is hereby transferred to the Vihiga Environment and Land Court and that the same be mentioned before the Judge of that court on 30 th September 2026 for further orders and/or directions.
26. As the Defendant is the government and it wold be punitive to award costs against its own citizen, this court has deviated from the general principle that costs follow the events and directs that each party will bear its own costs of the Defendant’s Preliminary Objection.
27. It is so ordered.
DATED and DELIVERED at VIHIGA this 16 th day of September 2026
J. KAMAU
JUDGE
HCCC NO E003 OF 20258