1. This suit was instituted through the Plaint dated 9th September 2024. The Plaintiff claims to be the registered owner of Land Parcel Title Number LR 12618/75 situate in West of Naromoru Township in Nyeri. The said Title was originally part of Title No. LR 12618/3 (Previously LR 12612/3) and was previously owned by the Plaintiff’s husband, one John Wachira Wangombe (deceased). According to the Plaintiff, the said mother title and other parcels of land owned by her deceased husband were subdivided according to his directions.
2. The Plaintiff claims that before the above subdivisions, the Defendant had been allowed to live in the family house. After subdivision and the allocation of land, it was agreed that the Defendant would vacate the suit property and go to his gifted property, Land Reference 12618/78. Despite various meetings held with the family and the Defendant's undertakings, including the latest undertaking given on 20th May 2023, to vacate the property by the end of January 2024, the Defendant has remained thereon unlawfully and without the Plaintiff's license, to her prejudice.
3. The Plaintiff seeks a permanent injunction preventing the Defendant from interfering with any of the parcels emanating from Title No. LR 12618/3 (previously LR 12612/3) and more specifically bordering Title Number LR 12618/75 and an order of eviction from the said Parcel 75.
The Defendant’s Preliminary Objection
4. The Defendant filed a Notice of Preliminary Objection dated 2nd December 2024 and filed on the following points:
1. That this Honourable Court lacks territorial jurisdiction - the subject matter of this suit pertains to land and/or environmental matters situated within the territorial jurisdiction of the Environment and Land Court at Nanyuki, given that the subject property is in Laikipia. This Honourable Court therefore lacks jurisdiction to hear and determine this matter as stipulated under Section 12(a) of the Civil Procedure Act, Cap 21 and the Environment and Land Court Act, 2011.
2. The Plaintiff has failed to institute the suit within the court's local limits where the immovable property is situated as required under Section 12 of the Civil Procedure Act, and therefore, the filing of this suit in this Court is contrary to the mandatory legal provisions governing territorial jurisdiction.
3. That, in the circumstances, the Plaintiff's suit and prayers sought therein are a procedural and substantive legal nullity and a proper candidate for dismissal and or transfer to another court with competent jurisdiction.
The Defendant’s submissions in support of the preliminary objection
5. Counsel for the Defendant submitted on the legal basis for territorial jurisdiction under Article 162(2)(b) of the Constitution of Kenya, 2010, which establishes the Environment and Land Court. Sections 11–15 of the Civil Procedure Act (Cap 21) set the principles of territorial jurisdiction and provide that suits concerning immovable property must be filed where the property is situated.
6. It was submitted that jurisdiction is what gives a court or a tribunal the power, authority and legitimacy to entertain any matter before it. In common English parlance, 'Jurisdiction' denotes the authority or power to hear and determine judicial disputes, or even to take cognisance of the same. This definition clearly shows that before a court can be seized of a matter, it must satisfy itself that it has authority to hear it and make a determination, as was so held in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR
7. It is the Defendant’s submission that territorial Jurisdiction must be strictly followed as was held in Phoenix of E.A Assurance Company Limited v S.M. Thiga t/a Newspaper Service [2019] eKLR. Counsel also relied on the case of Kenya Ports Authority v Modern Holding [E.A] Limited [2017] eKLR and Joseph Muthee Kamau & Another v David Mwangi Gichure & Another [2013] eKLR on the submission that Jurisdiction cannot be conferred by consent or waiver of parties.
8. The Defendant therefore submits that this Honourable Court lacks jurisdiction to hear and determine this matter, and that the only remedy available to the Defendant is for this Honourable Court to strike out the matter or have it transferred to a court of competent jurisdiction.
Plaintiff’s Written Submissions to the Preliminary Objection.
9. The Plaintiff’s Counsel submits that the Objection is invalid since the Defendant did not file their statement of defence or enter a conditional appearance within the required timeline, which is the procedure when one is challenging a court`s jurisdiction. Counsel cited the authorities of:
Barakat Exploration Inc. –Vs- Taipan Resources Inc. [2014]eKLR in which the Court relied on a Court of Appeal Decision in Civil Appeal No. 39 Of 1980 Kanti & Co Limited –Vs- South British Insurance Company Limited
Billy Graham Owuor V Daudi Sabin Bahira & Another [2012] Kehc 3979 (KLR), Joab Mehta Oudia v Registered Trustees of Nairobi Club [2022] KEELRC 1063 (KLR) paragraph 9-12 and Petra Development Services Limited v Evergreen Marine (Singapore) PTE Ltd & another [2014] KEHC 2989 (KLR)
10. The Plaintiff also submits that the Preliminary Objection raised is not a pure point of law, as was directed by the case of Mukisa Biscuit Manufacturing Co. Ltd –vs.- West End Distributors (1969) EA 696. Counsel stated that it is not in the place of counsel, drawing the written submissions for the Defendant, to testify or to speak to unsubstantiated facts which, in any case, can only be determined at a hearing.
11. It is also submitted that the title document for the suit land exhibited by the Plaintiff shows that the suit land L.R. Number LR 12618/75 is geographically situated in West of Naromoru Township in Nyeri. That these facts are res ipsa loquitur, as the title clearly speaks for itself and does not require argument or evidence to prove that it is within Nyeri and therefore inside the geographical jurisdiction of Nyeri Environment & Land Court. On this point, Counsel relied on the authorities of:
Ndurya & 2 others v Municipal Council of Malindi & another; Omondi & 12 others (Affected Party) (Environment & Land Miscellaneous Case 220 of 1999) [2022] KEELC 14941 (KLR) (22 November 2022) (Ruling)
Ndambuki & 4 others v Kanyi & another (Environment & Land Case 29 of 2023) [2024] KEELC 4632 (KLR) (13 June 2024) (Ruling)
12. Counsel concluded that the impugned Preliminary Objection dated 2nd December, 2024, is not only irregular, baseless and invalid as the Plaintiff has demonstrated, but it is equally frivolous, vexatious and an abuse of the process of the Court and should be dismissed with costs.
Analysis and Determination
13. What is before the Court for determination is the Preliminary Objection by the Defendant dated 2nd December 2024, arguing that this Court lacks the territorial jurisdiction to hear this suit. According to Black's Law Dictionary, a Preliminary Objection is defined as being:
“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”
14. The above legal preposition was cemented in the now famous case of Mukisa Biscuit Manufacturing Co. Ltd –VS- West End Distributors Ltd. [1969] E.A. 696. The Court held that: -
“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary objection. A preliminary Objection is in the nature of what used to be a demurrer; it raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is in the exercise of judicial discretion. The improper raising of points by way of Preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. This improper practice should stop"
15. In the case of Attorney General & Another v Andrew Mwaura Githinji & another (2016) eKLR, the court outlined the scope and nature of a Preliminary Objection as;
(i) A preliminary objection raised a pure point of law, which is argued on the assumptions that all facts pleaded by the other side are correct.
(ii) A preliminary objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and
(iii) The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and, on occasion, confuse issues in dispute.
16. The court agrees that jurisdiction is a preliminary issue, and the court cannot make any further steps if it lacks the requisite jurisdiction. The often-cited case of Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] eKLR emphasised the importance of jurisdiction, where the Court held that:
"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. Where a court has no jurisdiction, there would be no basis. For a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it, the moment it holds the opinion that it is without jurisdiction."
17. Counsel for the Defendants relied on the authority of Joseph Muthee Kamau & another v David Mwangi Gichuru & Another (Civil Appeal 54 of 2009) [2013] KECA 284 (KLR) (29 May 2013) (Judgment) where it was held that:
"When a suit has been filed in a court without jurisdiction, it is a nullity. Many cases have established that, the most famous being the case of Kagenyi v Musirambo [1968] EA 43.”
18. The Environment and Land Court was established under Article 162(2)(b) of the Constitution of Kenya, 2010, which states that -
(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.
(3) Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).
21. Section 13 of the Environment and Land Court Act vests this court with wide powers over any dispute relating to land and provides that;
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
22. The territorial jurisdiction of courts is set out under Section 12 of the Civil Procedure Act, that:
Subject to the pecuniary or other limitations prescribed by any law, suits—
(a) for the recovery of immovable property, with or without rent or profits;
(b) for the partition of immovable property;
(c) for the foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property;
(d) for the determination of any other right to or interest in immovable property;
(e) for compensation for wrong to immovable property;
(f) For the recovery of movable property actually under distraint or attachment, where the property is situate in Kenya, shall be instituted in the court within the local limits of whose jurisdiction the property is situate:
Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the court within the local limits of whose jurisdiction the property is situate, or in the court within the local limits of whose jurisdiction the defendant actually and voluntarily resides or carries on business, or personally works for gain.”
23. Section 15(c) further provides that:
“Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction—
(c)The cause of action, wholly or in part, arises."
24. As stated in the case of Attorney General & Another v Andrew Mwaura Githinji & another (supra), a preliminary objection raises a pure point of law and is argued on the assumptions that all facts pleaded by the other side are correct. In this case, the question of whether the suit land is located within the territorial jurisdiction of this court or that of Nanyuki Environment and Land Court is in dispute. It must be noted that the Defendant did not file a defence to the suit herein, and neither did he file any documents to support the facts claimed to be true in the objection.
25. The suit Parcel of Land Title Number L.R. 12612/75 was, before excision, LR 12618/3 (previously LR. 12612/3). The Certificate of Title to the suit land is listed as Number 2 on the Plaintiff’s list of documents dated 9th September 2024, and a copy is attached. The details of the said certificate read as follows;
“Title No. IR 226265…..I hereby certify that Rose Nyambura Wachira of Post Office Box Number 13801, Nakuru in the Republic of Kenya, pursuant to Subdivision of IR 60440/1, are now the registered proprietor (s) as owner (s) for an estate in fee simple of ALL that piece of land situate in the W. of Naro Moru Township in Nyeri District…. Containing by measurement Seven Decimal Nine Nine Eight Hectares (7.998 Hectares)…In witness whereof I have hereunto set my hand and seal this 18th day of February Two Thousand and Two…”
26. The above details on the certificate of title, prima facie, show that the suit land is situated within Nyeri, within the territorial jurisdiction of this court. No evidence has been given to contradict this position.
27. Counsel for the Defendant stated in submissions that “according to the Ministry of Public Works, Housing and Urban Development records, the property is in Laikipia County.” He went on to explain that the change from Districts to Counties, as occasioned by the Constitution of Kenya 2010, led to the restructuring of Land Registries and, in some instances, has caused jurisdictional confusion on where to file land cases or process transactions.
28. It is noteworthy that the records of the Ministry of Public Works, Housing and Urban Development referred to by Counsel for the Defendant have not been availed to this court to enable it to assess the correctness of the assertions made by Counsel. The questions of restructuring and consolidation of District Land Registries and District Survey Offices and the arising confusion alluded to have not been pleaded anywhere by the Defendant, and neither has it been shown to be factually correct or to apply to the land parcels subject matter of this suit.
29. Further to this, the submissions by Counsel for the Defendant on questions of land owners having their land located under new counties and thus causing jurisdictional confusion on where to file land cases or process such transactions are submissions based on speculative assumptions and on no agreed and/or proven facts. There is also no reason to believe that the “jurisdictional confusion” alluded to applies to the facts of this case.
30. From the foregoing, the court is satisfied that it has territorial jurisdiction to hear and determine the dispute concerning the suit Parcel of Land. The Court finds that the Preliminary Objection dated 2nd December 2024 lacks merit and the same is hereby dismissed with costs to the Plaintiff. The Defendant is directed to file and serve his defence within fourteen days from the date hereof, and the suit is set down for pre-trial directions on 24th February 2026.
Dated, Signed and Delivered at Nyeri this 11th day of December 2025
In the presence of:-
Mr. Kimeli - Court Assistant
Malinda - For the Plaintiff
M/S Kendi - For the Defendant