1. The scales of justice must balance procedural rigour with substantive fairness. The architecture of civil litigation demands strict adherence to procedural anchors and constitutional boundaries.
2. A litigant cannot approach the seat of justice in a vacuum. Similarly, a Court cannot usurp authority where the Constitution has expressly ousted it.
3. This ruling resolves a Notice of Preliminary Objection dated 13th February, 2026, which tests this delicate equilibrium. Notably, the objection appears substantively unopposed on the law, compelling this Court to evaluate the competence of the proceedings in limine.
Background Facts
4. The factual matrix underpinning this dispute is drawn entirely from the pleadings on record. The Plaintiff, XIV Ventures Limited, and the Defendant, Virginia Wanjiku Nge'the, executed a Joint Venture Agreement dated 30th December, 2024. The venture concerned the proposed development of residential villas known as "Serenity Springs Villas" on a land parcel described as L.R No. 7022/288 (Original No. 7022/11/2), situated in Kiambu. The commercial relationship subsequently deteriorated.
5. The Plaintiff approached this Court in haste. It filed a Notice of Motion dated 11th February, 2026, under a Certificate of Urgency. It sought sweeping interlocutory orders. These included injunctions to restrain the Defendant from alienating the suit property, evicting the Plaintiff, and an order directing the immediate registration of a caveat or restriction against the title.
6. The Defendant reacted swiftly. She entered an appearance under protest and filed a Notice of Preliminary Objection dated 13th February, 2026. The objection seeks the summary dismissal of the application. The grounds are set out as follows:
“TAKE NOTICE that the Defendant/Respondent shall, at the hearing of the Plaintiff/Applicant’s Notice of Motion Application dated 11th February 2026 and/or at the earliest opportunity, raise a Preliminary Objection on points of law that the said Application (and the proceedings as presented) are incompetent and this Honourable Court lacks jurisdiction, on the following grounds;
THAT;
1) Want of subject-matter jurisdiction: This Honourable Court lacks jurisdiction to hear and determine the Plaintiff/Applicant’s Notice of Motion Application dated 11th February 2026 as the substance, dominant issue and effect of the reliefs sought concern title to, dealings in, occupation, possession, use and/or interests in land, namely LR No. 7022/288 (Original No. 7022/11/2).
2) The prayers sought are land/title/occupation remedies: The Notice of Motion Application dated 11th February 2026 seeks, inter alia, orders:
i) Restraining the Defendant/Respondent from alienating, transferring, charging, leasing, selling and/or otherwise dealing with LR No. 7022/288 (Original No. 7022/11/2);
ii) Restraining eviction and/or interference with access, possession and/or occupation of LR No. 7022/288 (Original No. 7022/11/2); and
iii) For registration of a caveat/restriction/inhibition against the title and/or preservation of status quo on LR No. 7022/288 (Original No. 7022/11/2), which are remedies that go to land title/registration and land occupation, falling within the exclusive jurisdiction of the Environment and Land Court.
3) Constitutional/statutory allocation ousts the High Court: By virtue of Article 162(2)(b) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act (as read with Article 165(5) of the Constitution), disputes relating to the environment and the use and occupation of, and title to, land are reserved to the Environment and Land Court, and are excluded from the High Court’s jurisdiction. Critically, by virtue of Article 165(5)(b) of the Constitution, the High Court is expressly divested of jurisdiction in matters reserved for the courts contemplated under Article 162(2), including the Environment and Land Court.
4) A Joint Venture Agreement narrative cannot confer jurisdiction where the subject matter is land: The Plaintiff/Applicant’s reliance on the Joint Venture Agreement dated 30th December 2024 does not confer jurisdiction upon this Court where the primary prayers and practical effect of the Notice of Motion Application dated 11th February 2026 are to control and preserve rights and dealings in land, including inhibitions/restrictions and possession/occupation. Jurisdiction is determined by the substance of the dispute and the remedies sought, not by how a party labels the dispute.
5) Incompetence: The Plaintiff/Applicant’s Notice of Motion Application dated 11th February 2026 is fatally defective and incompetent as presented because it is not anchored on any Plaint, Originating Summons, Petition, or other originating pleading setting out a cause of action. Interlocutory injunctive and preservatory orders cannot properly issue in a vacuum absent a competent suit before the court.
Consequently, the Plaintiff/Applicant’s Notice of Motion Application dated 11th February 2026 should be dismissed with Costs to the Defendant/Respondent.”
Issues for Determination
7. The Court has analysed the pleadings, the rival written submissions, and the authorities cited by Counsel for both parties. The Court has also considered the oral highlights by Counsel for the Defendant in the absence of the Plaintiff’s Counsel who failed to show up for the highlighting. The Court frames two issues for determination as follows:
(i) Whether a suit not founded on a Plaint can be sustained.
(ii) Whether this is a land matter divesting this Court of jurisdiction in favour of the Environment and Land Court (ELC).
Analysis
8. The Court takes note that the leading case on raising of Preliminary Objections remains the locus classicus decision in Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696. Law JA 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...".
9. In the same judgment, Sir Charles Newbold P. added:
"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 the exercise of judicial discretion.".
(i) Whether a suit not founded on a Plaint can be sustained.
10. The Court will begin with the procedural competence of the application. The rules of engagement in civil practice are clear and mandatory. Civil proceedings must be instituted in a prescribed statutory manner. Order 3 Rule 1 of the Civil Procedure Rules 2010 dictates that every suit shall be instituted by presenting a Plaint to the Court, or in such other manner as may be prescribed.
11. The Defendant, through her Further Affidavit sworn on 12th March, 2026, laid bare a fatal anomaly. The Plaintiff's Notice of Motion hangs in the air. There is no substantive Plaint or Originating Summons on the record. The Plaintiff astonishingly conceded this defect. In its Replying Affidavit sworn on 24th February, 2026, the Plaintiff admitted that it moved this Court seeking interim orders
"pending formal filing and completion of substantive pleadings".
12. This is an egregious abuse of the Court process. An interlocutory application cannot exist in a vacuum. It is ancillary and parasitic by nature. It must draw its lifeblood from an existing substantive suit. A Court cannot preserve the substratum of a suit that has not yet been born. The Defendant correctly relied on the holding in Mogaka v Diamond Trust Bank of Kenya Ltd & 2 others [2022] KEELC 3328 (KLR). In that case, the Court, quoting Ernest Mwangi Waigi v National Bank of Kenya Ltd [2015] eKLR, stated:
“A perusal of the plaint reveals that the plaintiff is primarily challenging the lawfulness of the defendant’s exercise of its statutory power of sale. However, he never included any prayer in the plaint to that effect. In my view and as correctly pointed out by Maina Wachira, the plaintiff should at least have included a prayer for a declaratory order seeking that this court declares the defendant’s intended exercise of its statutory power of sale to be unlawful. In the absence of such prayer, the plaintiff’s prayer for a permanent injunction has no legs to stand on. Prayers for injunction cannot exist in a vacuum".
13. My sister Mogeni J. in Chacha & another v Orbit Chemicals Industries Limited & another [2024] KEELC 3278 (KLR) is also in agreement. An application for an injunction drawn without a primary plaint is fundamentally defective and amounts to a procedural nullity. The Plaintiff's application is consequently incompetent.
(ii) Whether this is a land matter divesting this Court of jurisdiction in favour of the Environment and Land Court (ELC).
14. The Court now turns to the second issue. It touches on the very life of this Court's authority. Jurisdiction is everything. The Defendant relies on the celebrated decision of Nyarangi JA in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] eKLR. The Court of Appeal stated these words which continue to guide our Courts:
"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 downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.".
15. The Defendant argues this is a land dispute disguised as a commercial claim. She relies on Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. The Plaintiff counters this. It contends that the dominant issue is an accounting and commercial dispute arising from the Joint Venture Agreement, invoking this Court's unlimited original civil jurisdiction under Article 165(3)(a).
16. The jurisprudence on identifying the true nature of a dispute is well settled. The Court must look beyond the nomenclature used by the parties. It must examine the pleadings and the exact reliefs sought. The Defendant rightly cites the Court of Appeal in Co-operative Bank of Kenya Limited v Njuguna & 5 others [2017] KECA 79 (KLR). The Appellate Court directed that a trial Court must identify the real, dominant dispute before assuming jurisdiction.
17. In the absence of a Plaint, this Court has perused the Plaintiff's Notice of Motion. The prayers are glaringly proprietary and possessory. The Plaintiff seeks to injunct the Defendant from alienating, transferring, or selling L.R No. 7022/288. It seeks to stop eviction. It seeks the registration of a caveat or restriction against the title. These are classic land remedies. A commercial narrative cannot confer jurisdiction where the practical effect of the remedies sought is to control and preserve rights in land.
18. By virtue of Article 165(5)(b) of the Constitution, the High Court is expressly divested of jurisdiction in matters reserved for the Environment and Land Court. This is an absolute constitutional ouster.
19. A suit without a Plaint is a nullity. A suit filed in the wrong constitutional forum is equally a nullity. The Plaintiff's application fails on both fronts. It is hopelessly incompetent and incurable by any stretch of inherent jurisdiction. The Preliminary Objection is unopposed on the substantive law, and the Court is fully persuaded to allow it.
20. As to costs, they lie at the discretion of the Court and ordinarily follow the event. The Defendant has successfully sustained her Preliminary Objection. She is entitled to the costs of this Preliminary Objection. The Court notes that the dispute between the parties is far from resolved. The effects of this decision are to merely give the parties a brief pause, to take a few steps back and reload their guns. This Court is also mindful of its duty to save on costs. No defence was filed and the proceedings have been relatively short-lived. The costs are assessed at Kshs. 50,000/=.
Determination
21. The Court determines the Notice of Preliminary Objection dated 13th February, 2026 in the following manner:
(i) The Defendant's Notice of Preliminary Objection dated 13th February, 2026, is sustained in its entirety.
(ii) The Plaintiff's Notice of Motion application dated 11th February, 2026, being fatally defective for want of an anchoring Plaint and filed in a Court without jurisdiction, is HEREBY struck out.
(iii) The costs are awarded to the Defendant assessed at Kshs. 50,000/=.
22. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 16TH DAY OF SEPTEMBER, 2026.
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Lukano for the Plaintiff/Applicant.
Miss Jane Okoth for the Defendant/Respondent.
Mr. John Paul - Court Assistant.
2. A litigant cannot approach the seat of justice in a vacuum. Similarly, a Court cannot usurp authority where the Constitution has expressly ousted it.
3. This ruling resolves a Notice of Preliminary Objection dated 13th February, 2026, which tests this delicate equilibrium. Notably, the objection appears substantively unopposed on the law, compelling this Court to evaluate the competence of the proceedings in limine.
Background Facts
4. The factual matrix underpinning this dispute is drawn entirely from the pleadings on record. The Plaintiff, XIV Ventures Limited, and the Defendant, Virginia Wanjiku Nge'the, executed a Joint Venture Agreement dated 30th December, 2024. The venture concerned the proposed development of residential villas known as "Serenity Springs Villas" on a land parcel described as L.R No. 7022/288 (Original No. 7022/11/2), situated in Kiambu. The commercial relationship subsequently deteriorated.
5. The Plaintiff approached this Court in haste. It filed a Notice of Motion dated 11th February, 2026, under a Certificate of Urgency. It sought sweeping interlocutory orders. These included injunctions to restrain the Defendant from alienating the suit property, evicting the Plaintiff, and an order directing the immediate registration of a caveat or restriction against the title.
6. The Defendant reacted swiftly. She entered an appearance under protest and filed a Notice of Preliminary Objection dated 13th February, 2026. The objection seeks the summary dismissal of the application. The grounds are set out as follows:
“TAKE NOTICE that the Defendant/Respondent shall, at the hearing of the Plaintiff/Applicant’s Notice of Motion Application dated 11th February 2026 and/or at the earliest opportunity, raise a Preliminary Objection on points of law that the said Application (and the proceedings as presented) are incompetent and this Honourable Court lacks jurisdiction, on the following grounds;
THAT;
1) Want of subject-matter jurisdiction: This Honourable Court lacks jurisdiction to hear and determine the Plaintiff/Applicant’s Notice of Motion Application dated 11th February 2026 as the substance, dominant issue and effect of the reliefs sought concern title to, dealings in, occupation, possession, use and/or interests in land, namely LR No. 7022/288 (Original No. 7022/11/2).
2) The prayers sought are land/title/occupation remedies: The Notice of Motion Application dated 11th February 2026 seeks, inter alia, orders:
i) Restraining the Defendant/Respondent from alienating, transferring, charging, leasing, selling and/or otherwise dealing with LR No. 7022/288 (Original No. 7022/11/2);
ii) Restraining eviction and/or interference with access, possession and/or occupation of LR No. 7022/288 (Original No. 7022/11/2); and
iii) For registration of a caveat/restriction/inhibition against the title and/or preservation of status quo on LR No. 7022/288 (Original No. 7022/11/2), which are remedies that go to land title/registration and land occupation, falling within the exclusive jurisdiction of the Environment and Land Court.
3) Constitutional/statutory allocation ousts the High Court: By virtue of Article 162(2)(b) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act (as read with Article 165(5) of the Constitution), disputes relating to the environment and the use and occupation of, and title to, land are reserved to the Environment and Land Court, and are excluded from the High Court’s jurisdiction. Critically, by virtue of Article 165(5)(b) of the Constitution, the High Court is expressly divested of jurisdiction in matters reserved for the courts contemplated under Article 162(2), including the Environment and Land Court.
4) A Joint Venture Agreement narrative cannot confer jurisdiction where the subject matter is land: The Plaintiff/Applicant’s reliance on the Joint Venture Agreement dated 30th December 2024 does not confer jurisdiction upon this Court where the primary prayers and practical effect of the Notice of Motion Application dated 11th February 2026 are to control and preserve rights and dealings in land, including inhibitions/restrictions and possession/occupation. Jurisdiction is determined by the substance of the dispute and the remedies sought, not by how a party labels the dispute.
5) Incompetence: The Plaintiff/Applicant’s Notice of Motion Application dated 11th February 2026 is fatally defective and incompetent as presented because it is not anchored on any Plaint, Originating Summons, Petition, or other originating pleading setting out a cause of action. Interlocutory injunctive and preservatory orders cannot properly issue in a vacuum absent a competent suit before the court.
Consequently, the Plaintiff/Applicant’s Notice of Motion Application dated 11th February 2026 should be dismissed with Costs to the Defendant/Respondent.”
Issues for Determination
7. The Court has analysed the pleadings, the rival written submissions, and the authorities cited by Counsel for both parties. The Court has also considered the oral highlights by Counsel for the Defendant in the absence of the Plaintiff’s Counsel who failed to show up for the highlighting. The Court frames two issues for determination as follows:
(i) Whether a suit not founded on a Plaint can be sustained.
(ii) Whether this is a land matter divesting this Court of jurisdiction in favour of the Environment and Land Court (ELC).
Analysis
8. The Court takes note that the leading case on raising of Preliminary Objections remains the locus classicus decision in Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696. Law JA 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...".
9. In the same judgment, Sir Charles Newbold P. added:
"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 the exercise of judicial discretion.".
(i) Whether a suit not founded on a Plaint can be sustained.
10. The Court will begin with the procedural competence of the application. The rules of engagement in civil practice are clear and mandatory. Civil proceedings must be instituted in a prescribed statutory manner. Order 3 Rule 1 of the Civil Procedure Rules 2010 dictates that every suit shall be instituted by presenting a Plaint to the Court, or in such other manner as may be prescribed.
11. The Defendant, through her Further Affidavit sworn on 12th March, 2026, laid bare a fatal anomaly. The Plaintiff's Notice of Motion hangs in the air. There is no substantive Plaint or Originating Summons on the record. The Plaintiff astonishingly conceded this defect. In its Replying Affidavit sworn on 24th February, 2026, the Plaintiff admitted that it moved this Court seeking interim orders
"pending formal filing and completion of substantive pleadings".
12. This is an egregious abuse of the Court process. An interlocutory application cannot exist in a vacuum. It is ancillary and parasitic by nature. It must draw its lifeblood from an existing substantive suit. A Court cannot preserve the substratum of a suit that has not yet been born. The Defendant correctly relied on the holding in Mogaka v Diamond Trust Bank of Kenya Ltd & 2 others [2022] KEELC 3328 (KLR). In that case, the Court, quoting Ernest Mwangi Waigi v National Bank of Kenya Ltd [2015] eKLR, stated:
“A perusal of the plaint reveals that the plaintiff is primarily challenging the lawfulness of the defendant’s exercise of its statutory power of sale. However, he never included any prayer in the plaint to that effect. In my view and as correctly pointed out by Maina Wachira, the plaintiff should at least have included a prayer for a declaratory order seeking that this court declares the defendant’s intended exercise of its statutory power of sale to be unlawful. In the absence of such prayer, the plaintiff’s prayer for a permanent injunction has no legs to stand on. Prayers for injunction cannot exist in a vacuum".
13. My sister Mogeni J. in Chacha & another v Orbit Chemicals Industries Limited & another [2024] KEELC 3278 (KLR) is also in agreement. An application for an injunction drawn without a primary plaint is fundamentally defective and amounts to a procedural nullity. The Plaintiff's application is consequently incompetent.
(ii) Whether this is a land matter divesting this Court of jurisdiction in favour of the Environment and Land Court (ELC).
14. The Court now turns to the second issue. It touches on the very life of this Court's authority. Jurisdiction is everything. The Defendant relies on the celebrated decision of Nyarangi JA in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] eKLR. The Court of Appeal stated these words which continue to guide our Courts:
"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 downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.".
15. The Defendant argues this is a land dispute disguised as a commercial claim. She relies on Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. The Plaintiff counters this. It contends that the dominant issue is an accounting and commercial dispute arising from the Joint Venture Agreement, invoking this Court's unlimited original civil jurisdiction under Article 165(3)(a).
16. The jurisprudence on identifying the true nature of a dispute is well settled. The Court must look beyond the nomenclature used by the parties. It must examine the pleadings and the exact reliefs sought. The Defendant rightly cites the Court of Appeal in Co-operative Bank of Kenya Limited v Njuguna & 5 others [2017] KECA 79 (KLR). The Appellate Court directed that a trial Court must identify the real, dominant dispute before assuming jurisdiction.
17. In the absence of a Plaint, this Court has perused the Plaintiff's Notice of Motion. The prayers are glaringly proprietary and possessory. The Plaintiff seeks to injunct the Defendant from alienating, transferring, or selling L.R No. 7022/288. It seeks to stop eviction. It seeks the registration of a caveat or restriction against the title. These are classic land remedies. A commercial narrative cannot confer jurisdiction where the practical effect of the remedies sought is to control and preserve rights in land.
18. By virtue of Article 165(5)(b) of the Constitution, the High Court is expressly divested of jurisdiction in matters reserved for the Environment and Land Court. This is an absolute constitutional ouster.
19. A suit without a Plaint is a nullity. A suit filed in the wrong constitutional forum is equally a nullity. The Plaintiff's application fails on both fronts. It is hopelessly incompetent and incurable by any stretch of inherent jurisdiction. The Preliminary Objection is unopposed on the substantive law, and the Court is fully persuaded to allow it.
20. As to costs, they lie at the discretion of the Court and ordinarily follow the event. The Defendant has successfully sustained her Preliminary Objection. She is entitled to the costs of this Preliminary Objection. The Court notes that the dispute between the parties is far from resolved. The effects of this decision are to merely give the parties a brief pause, to take a few steps back and reload their guns. This Court is also mindful of its duty to save on costs. No defence was filed and the proceedings have been relatively short-lived. The costs are assessed at Kshs. 50,000/=.
Determination
21. The Court determines the Notice of Preliminary Objection dated 13th February, 2026 in the following manner:
(i) The Defendant's Notice of Preliminary Objection dated 13th February, 2026, is sustained in its entirety.
(ii) The Plaintiff's Notice of Motion application dated 11th February, 2026, being fatally defective for want of an anchoring Plaint and filed in a Court without jurisdiction, is HEREBY struck out.
(iii) The costs are awarded to the Defendant assessed at Kshs. 50,000/=.
22. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 16TH DAY OF SEPTEMBER, 2026.
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Lukano for the Plaintiff/Applicant.
Miss Jane Okoth for the Defendant/Respondent.
Mr. John Paul - Court Assistant.