https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10069

Adan v Karu & another (Sued as the Trustees and Executives of Dupoto/Dafur Welfare Association) (Civil Case E002 of 2024) [2026] KEHC 10069 (KLR) (Civ) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10069 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case E002 of 2024 JN Mulwa, J July 9, 2026 Between Abdulrazaq Haji Adan Plaintiff and John Karu 1st Defendant Jamasas Ole Karu 2nd Defendant Sued as the Trustees and Executives of Dupoto/Dafur Welfare Association (On Preliminary Objection dated 21/08/2025) Ruling 1.This suit was filed by the Plaintiff as against the Defendants, suing as the trustees and executives of Dupoto/Dafur Welfare Association, by a plaint dated 5/01/2024 through its Advocates M/s F. N. Wamalwa & Co. Advocates. 2.The gist of the Plaintiff’s suit and claim is garnered from the plaint is that the officials of the Defendant sometimes in 2023 received funds from the Plaintiff in the tune of Kshs. Four Million (Kshs. 4,000,000/=) to facilitate it to firm allocation of a parcel of land Embakasi Area in the settlement scheme, from which he would be entitled to five Acres thereof, which he states is equivalent to Kshs. 250,000,000/= (two hundred fifty Million Kenya Shillings. 3.That thereafter, he states that the block, 125/2157 was later acquired by the Government for Kenya Railways at 50 million Kenya shillings an Acre, and therefore, by virtual of the purchase price in Embakasi area, the five Acres allocated to him by the Defendants is worth Kshs. 250,000,000/= and due to the turn of events, he now seek the orders he prays for in the plaint. 4.The reliefs sought by the Plaintiff are:-a.A judgment ordering the Defendants to pay forthwith to the plaintiff his rightful share of the proceeds of compensation received from Kenya Railways Corporation from Title Block 125/2157 for the five Acres, pegged on the value of each acre.b.The sum found due and payable to the plaintiff to attract interest at commercial rates by Kenya Commercial bank from date of payment to the Defendants until payment in full.c.Any other orders as the court may deem expedient, and costs of the suit. 5.The Preliminary Objection (PO) dated 21/08/2025:-1.That the suit is bad in law, frivolous, vexatious and in abuse of the court process2.That this honourable Court lacks jurisdiction to entertain and determine the present suit as the same relates to ownership, use, occupation and title to land specifically parcel number Block 125/2157 Embakasi, and its entitlement thereto.3.That jurisdiction over disputes relating to land and environment is exclusively vested in the Environment and land court (ELC) pursuant to Article 162(2)(b) of the Constitution of Kenya, 2010, as read together with Section 13 of the Environment and land Court Act 2011.4.That the jurisdiction of this Honourable Court is expressly ousted by the constitution and statute in so far as matters relating to land are concerned.5.That the present suit is therefore incompetent, fatally defective and an abuse of the court process and ought to be struck out in limine with costs to the Defendants 6.Upon the above backdrop, the parties were directed to file their respective submissions on the Preliminary Objection. They both have complied. Defendants Submissions on the Preliminary Objection 7.The submissions are dated 25/02/2026 three issues have been flagged;a.On whether the Preliminary objection meets the legal threshold of a preliminary objection, it is submitted that it names a pure point of law as it may dispose of the suit, that it ought to be based on uncontested facts, citing the cases of Mukisa Biscuit Manufacturing Co. Ltd, V. West End Distributors Ltd and Samuel Kamau Macharia v. KCB & 2 Other, Kiliaro Fresh Ltd v. National Environment Tribunal & Others [2026] KESC 18 (KLR) for the holding that jurisdiction of a court is a preliminary objection that ought to be determined on the onset; that jurisdiction emanates from either the constitution or legislation of both.b.On whether this court should entertain the dispute in light of the constitutional and Statutory Frameworks Governing land matters, it is submitted that as the claim is entitlement to 5 acres out of land parcel Block 125/2157, the substance of the claim is entitlement to the land or the proceeds arising from compulsory acquisition of land.That Article 162 (2)(b) of the Constitution establishes the ELC court with original jurisdiction to determine all dispute disputes relating to title, tenure, compulsory acquisition and other disputes relating to land and environment.c.As to whether the suit as instituted is incompetent and an abuse of court process, it is submitted that the suit is a deliberate abuse of court process in the fare of the statutory demarcation of jurisdiction of courts.The following decisions are cited in support, Makani v. Masariru [2026] KEHC 1712(KLR); phoenix of E. A Assurance Co. Ltd V. S. M. Thiga t/a Newspaper service [2019] eKLR; Leli & Another v. Cornerstone Clearing V Forwarding Ltd. [2026] KECA 82 (KLR) Plaintiff’s submissions in Opposition to the Preliminary Objection. 8.In this submissions dated 27/02/2026, the Plaintiff submits that the preliminary objections lacks merit and ought to be dismissed citing1.misinterpretation of legal requirement of legal requirements for establishing a cause of action,2.that it does not meet the threshold of a pure point of law, as it requires consideration of facts and merits of the case,3.that a preliminary objection should not be used as a means to defeat a claim on technicalities but focus on substantive issues. 9.The following decisions are called to aid:i.Mukisa Biscuit manufacturing co. (supra)ii.Owner of Motor Vessel “Lilian” (supra)iii.Co-operative Bank of Kenya Ltd v. Patrick Kangethe Njuguna & 5 others [2017] eKLR whereof the court of appeal observed that the respective jurisdictions of the ELC and the High Court are well spelt by the Constitutioniv.Suzanne Butler X 4 others v. Redhill Investments & Another [2017] eKLR andv.Amina Mohamed Harish v. Chakama Ranching Col Ltd & 5 others [2023] KEHC 1572(KLR) on the “Predominant purpose test” in respect to court’s jurisdiction. 10.The Plaintiff submits that the purpose test of the suit as expounded in the above cited decisions is not in relation to ownership, use, occupation, or title to land, as a presence of the ELC, but that the predominant test, the subject issue before the court does not involve the above and therefore this court has jurisdiction to hear the case on its merit. Analysis and Determination 11.Form the parties pleadings and submissions, the court postulates issues for determination as concerns:-i.What is the cause of action and or subject issue before the court for determination?ii.Whether the preliminary Objection meets the threshold of the preliminary objectioniii.Who bears cost of the preliminary objection? What is the cause of action and or subject issue before the court 12.The court took the liberty to verbatim state the Plaintiffs case claim as gained from its plaint. In courts considered view, the Plaintiff by its pleadings, which bind it, seeks the reliefs already stated. It is trite that each party is bound by its pleadings. Neither the party or the court can depart therefrom, nor attempt to introduce new causes of actions, see principles enunciated in ELRC case No. E. 062 of 2021 K. B Saughari & Sons v. Peter Idewa Papa [2021] KEELRC 381 KLR. 13.What is gather from the plaintiff’s leadings is that despite the land parcel title Block 125/2157 being allocated to it and from which one (1) Acre would have been allocated to him as per the parties agreement the said land parcel was compulsorily acquired by the government, for the benefit of Kenya Railways, upon which the defendant was compensated. 14.The impugned land parcel having been taken away and given out to Kenya Railways, a state Corporation, the only remedy was compensation, which I hold as the issue in question calling to aid the holding in Co-operative Bank of Kenya limited V. Patrick Kangethe (supra). 15.In the suit, the of Appeal held that “… in construing whether ELC had jurisdiction in a matter the consideration must be the dominant issue in the dispute and whether that issue relates to the environment and use and occupation of aid title to land”. 16.Additionally, the Court of Appeal in the Co-operative bank, case above at paragraph 35, the respective jurisdictions of the ELC and the High Court are well spelt out by the Constitution at Article 162 (2) & (3). 17.Further the court in determining which court has jurisdiction between the high court and the ELC in the case of Nyambura Mbugua v. Diamond Trust bank of (K) Ltd & Another [2018] eKLR, modified the definition in the Co-operative Bank case by stating that:“I would modify the above test and hold the position that what is important when determining whether the court has jurisdiction is not so much the purpose of the transaction, but the subject matter or issue before the court, for I think, that the purposes of the transaction may at times be different from the issue of subject matter before court” 18.Evidently, taking cue from the learned decisions in the above cases, is what is plain language the “Predominant purpose test” as applied in Amina Mohamed Harith v. Chakama Ranching Company case (supra), which determines whether a dispute primarily concerns land, if the predominant purpose of the transaction is land-use or ownership, the ELC has jurisdiction. 19.Whereas the defendants express contrary opinion, which I fully concur with in respect of the legal imperatives as to an issue of law only as to constitute a Preliminary Objection as held in Mukisa Biscuits manufacturing col Ltd (supra, and reaffirmed in Samuel Kamau Macharia (supra) it is important to go further and find if such point of law concerns subject issues in dispute. 20.Here, a cursory perusal of the reliefs sought by the plaintiff are a refund of the Plaintiffs. Money plus interest from the said money was given to the Defendants, not due to the defendants breach but due to compulsory acquisition of what he would have been given in exchange of his money, the one acre title out of Land parcel Block 125/2157 situated at Embakasi. 21.It is not this court’s duty to determine whether the reliefs sought would be successful at this interlocutory stage, but most importantly, which of the two courts; the High Court or the ELC that should determine the “dominant issue”. 22.Clearly, at the risk of repetition, upon interrogation and consideration of the party’s submissions, I hold the view that the predominant issue, and the predominant test, presents itself as, not concerning land use, ownership, or title to the suit property. 23.That therefore determines the court with the requisite jurisdiction to hear and determine the dispute between the parties here, as the High Court.As to whether the Preliminary Objection meets the threshold of a preliminary Objection? 24.I agree with the Defendants submission that the Plaintiff’s claim would inevitable require the court to interrogate whether the Plaintiff had any recognizable proprietary interest in Block 125/2157; and whether such interest was valid as well as whether he was entitled to compensation. 25.Indeed, the above questions would only be determined upon evidence being adduced before the court with jurisdiction and which court would then determine the same on merit. 26.The Mukisa Biscuit Manufacturing Company case (supra) held that a preliminary objection must raise a pure point of law which has been pleaded or which arises by clear implication out of the pleadings, and if argued, as a preliminary point, may dispose of the suit. The court therein emphasized that such an objection must not be based on contested facts that require elaborate interrogation. 27.I have in my view, rendered myself sufficiently on the points of law flagged by the Defendants, coming to the finding that the issue at fore in this suit is not among the questions for interrogation as provided as Section 13 of the ELC Act, and Article 162 (2) (b) of the Constitution. 28.It is purely a refund of the Plaintiffs money arising from an agreement that never materialized due to frustrations beyond the parties control. The refund, if upon evidence is found to be due and valid; the court will then determine the quantum, and applicable interest rates, as well as costs of the suit. 29.That said, in terms of issue 2, whether the preliminary objection meets the threshold of a preliminary objection as stated in Mukisa Biscuit Manufacturing case(supra) cannot sustain , it requires elaborate irrigation on the contested facts by each party, the reason why the suit was filed in the first instance. 30.In the end, I come to the conclusion that the preliminary objection as raised dated 21/08/2025 lacks merit and must suffer the fate of dismissal. 31.Finally, on costs, applying my mind to provisions of Section 27 of the Civil Procedure Act, and the proviso thereto, for good reason and circumstance, order and I direct that each party bears its own costs of the Preliminary Objection. Orders accordingly. DELIVERED DATED AND SIGNED AT NAIROBI THIS 9TH DAY OF JULY 2026.……………………….JANET MULWA.JUDGE