Barno v Ole Kiambu, Ntete & Ochieng (As Trustees for Dopoto/Darfur Settlement Welfare Scheme) & 5 others (Environment and Land Case E086 of 2024) [2026] KEELC 4580 (KLR) (2 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC NO. E086 OF 2024** **DAVID SOME BARNO - PLAINTIFF** **VS** **LIKAM OLE KIAMBU, DAVID** **GOLIGOL NTETE & VICTOR OCHIENG** **[As Trustees for Dopoto/ Darfur Settlement** **Welfare Scheme] - 1ST DEFENDANT** **DAVID OLE NKARATOI - 2ND DEFENDANT** **SIMON MAMA - 3RD DEFENDANT** **MARIPET OLE NTININ - 4TH DEFENDANT** **NATIONAL LAND COMMISSION - 1ST INTERESTED PARTY** **KENYA RAILWAYS CORPORATION - 2ND INTERESTED PARTY** **RULING** **(In respect of the Preliminary Objections by 1st Defendant dated 7/10/2025)** 1. This ruling pertains to the 1St Defendant’s Preliminary Objection dated 28/10/ 2025. To provide context for this objection, a brief summary of the pleadings will suffice. The Plaintiff initiated legal proceedings against the Defendants and Interested Parties through the Plaint filed on 23/2/2024, seeking, among other reliefs, a declaratory order that, pursuant to the Agreement dated 17/07/2021 executed between the Plaintiff and the Defendants, the Plaintiff is entitled to payment and/or compensation regarding the assessed compensation value of three (3) acres from Title No. Nairobi/Block 125/2157 (formerly LR No. 2935/72) or any subdivision thereof; an order directing the Interested Parties to pay the Plaintiff a sum equivalent to the assessed compensation value for three (3) acres of Title Number Nairobi/Block 125/2157 (formerly LR No. 2935/72) or any subdivision thereof; and costs of the suit. 2. The Plaintiff contends that he entered into an Agreement dated 17/06/2021, with the 1st Defendant, whereby the 1st Defendant consented to transfer three (3) acres of the subject property, formerly known as Land Reference Number 2935/72 and currently designated as Parcel Number Nairobi/Block 125/2157, to the Plaintiff. The consideration for this transfer was the Plaintiff’s commitment to assist the 1st Defendant in the processing of the Title for the aforementioned property. The Plaintiff asserts that he has fully and satisfactorily fulfilled his obligations under the aforementioned Agreement, a claim that the Defendants do not contest. 3. Subsequently, prior to the subdivision of the resultant Title, the 1st and 2nd Interested Parties notified their intention to compulsorily acquire the suit property for the construction of a standard gauge railway line. Following a series of meetings, it was agreed that the Interested Parties would proceed with the acquisition of the portion of the property to which the Plaintiff was entitled. Critically, the Defendants were to act as the Plaintiff’s Attorneys in the compulsory acquisition process and, upon receipt of the compensation funds, to pay the Plaintiff his share, which is equal to the value of three (3) acres as assessed by the Interested Parties’ Valuers. The Defendants received part of the compensation on or about 15/12/2023 but have since refused to pay the Plaintiff his dues, thereby breaching the Agreement. 4. The Plaintiff further asserts that the Defendants’ conduct constitutes not only a breach of contract but also acts of fraud and illegality. They allegedly induced him, through deceptive practices, to incur substantial expenses in processing the Title under the false pretense of providing adequate remuneration. Furthermore, they have allegedly misappropriated his compensation proceeds for their own benefit. The Plaintiff expresses concern that the Defendants are on the verge of receiving the final compensation from the Interested Parties and will continue to deny him his lawful entitlement, thereby causing him irreparable financial harm. Consequently, he petitions the Court for intervention to protect his interests and to recover his lawful dues. 5. The 1st Defendant in opposition to the suit filed the instant Preliminary Objection challenging the competency of the suit on the following grounds: 6. The Environment and Land Court lacks jurisdiction to entertain this suit as drawn and filed, as the Plaintiff's claim does not relate to the use, occupation, title, or environmental issues relating to land as envisaged under **Section 13 of the Environment and Land Court Act, 2011**, but rather seeks to enforce an alleged contract and/or claim for compensation for breach thereof. 7. The Plaintiff’s cause of action, being one founded in contract and/or liquidated damages, falls within the jurisdiction of the High Court’s Civil or Commercial Division, and not the Environment and Land Court. 8. The suit, as currently constituted, is incompetent, fatally defective, and nullity ab initio, and ought to be struck out with costs. 9. The 1st Defendant avers that it shall rely on **Sections 13(1) and (2)** of the **Environmental and Land Court Act, 2011** and the principles set out in **Owners of Mo Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1**, among other authorities. 10. The Court directed that the Preliminary Objection be heard by way of written submissions, and the parties filed their written submissions. The Plaintiff/Respondent, in opposition to the Preliminary Objection, filed written submissions dated 18/10/2025. The 1st Defendant/Objector filed its written submissions dated 11/11/2025. **Plaintiff’s submission** 1. The Plaintiff asserts that the basis of the claim, as outlined in the Plaint, originates from an agreement dated 17/06/2021, whereby the 1st Defendant committed to transfer three acres of the disputed property, now registered as Nairobi/Block 125/2157. This transfer was undertaken in consideration of the Plaintiff’s assistance in processing the title. Furthermore, the Plaintiff affirms that he fulfilled his obligations and that subsequent negotiations with the Defendants resulted in an agreement under which the Plaintiff would receive compensation equal to the value of the three acres, as determined in compulsory acquisition proceedings conducted by the Interested Parties. 2. It is the Plaintiff’s submission that the dispute, at its core, concerns a claim to a portion of land or a monetary payment in lieu, and the prayers sought directly relate to the named parcel of land. Accordingly, the Plaintiff asserts that the matter constitutes a breach of contract arising from dealings in land, which falls squarely within the jurisdiction conferred upon this Court under Section 13 of the Environment and Land Court Act. The Plaintiff therefore urges the Court to find the 1st Defendant’s Objection untenable and to dismiss it with costs. **1st Defendant’s submission** 1. The primary issue to be determined, as articulated by the 1st Defendant, centers on whether this Honourable Court possesses the jurisdiction to hear the current suit under the provisions of Article 162 of the Constitution and Section 13 of the Environment and Land Court Act, 2011. The 1st Defendant contends that jurisdiction is a fundamental issue; without it, the Court is precluded from proceeding. Reliance is placed on the principle established in The Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1. The 1st Defendant further asserts that, although the Environment and Land Court holds equal status to the High Court, it operates within a specialized and limited jurisdiction as delineated by Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, which is restricted to disputes concerning environmental issues, land use and occupancy, and land title. The Supreme Court’s ruling in Karisa Chengo & 2 others v Republic [2017] eKLR affirms that the jurisdictions of the Environment and Land Court and the High Court are not interchangeable. 2. Applying the predominant purpose test as enunciated in the cases of Suzanne Achieng Butler & 4 Others –vs- Redhill Heights Investment Ltd & Another[2016]eKLR *and* Bank of Africa Ltd v TSS Investments Ltd & 2 Others *[2019]* eKLR,the 1st Defendant contends that the present dispute does not predominantly concern land. Although the transaction may have involved land, the Plaintiff’s claim is for monetary compensation arising from an alleged breach of a construction contract, with no contest over ownership, possession, or title. That the suit property is undisputedly vested in the Government through Kenya Railways Corporation hence the claim thus falls within the realm of civil or commercial law, properly cognizable by the High Court, and not within the jurisdictional purview of the Environment and Land Court. 3. **The second issue pertains to whether the Plaintiff has exhausted all available alternative remedies in accordance with the doctrine of exhaustion. The 1st Defendant contends that the suit violates this doctrine, as the Plaintiff’s grievance concerns compulsory acquisition and alleged non-payment of just compensation, processes governed by the Land Act. It further argues that, pursuant to Section 133A of the Land Act, recourse must be sought before the Land Acquisition Tribunal, and that this Court’s jurisdiction in such matters is primarily appellate. The 1st Defendant maintains that the Plaintiff has neither approached the Tribunal nor presented exceptional grounds to bypass the statutory mechanism. Consequently, the 1st Defendant respectfully urges this Honourable Court to uphold the preliminary objection, deny jurisdiction, and dismiss the suit with costs.** **Analysis and Determination** 1. Having considered the pleadings, Preliminary Objection, rival submissions and the authorities cited to me, the following issues arise for determination: 2. Whether the Preliminary Objection raises pure points of law. 3. Whether the Court has jurisdiction to hear and determine this suit. 4. **Whether the Preliminary Objection raises pure points of law** 5. The starting point is to define what a preliminary objection is. On what constitutes a Preliminary Objection, in the case of Hassan Ali Joho & Another -Vs- Suleiman Said Shabal & 2 others SCK Petition No. 12013[2014] eKLR, the Supreme Court restated the definition in the case Mukhisa Biscuit Manufacturers Ltd vs West End Distributors Ltd (1969) E.A where the Court of Appeal said that: “…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 need to be ascertained or if what is sought is the exercise of judicial discretion.” 1. The issue of jurisdiction is a purely legal point that can determine the matter independently of the substantive facts of the case. It is immaterial whether the facts presented by the plaintiff are true, as the court's authority to hear and decide the case is contingent upon proper jurisdiction. Jurisdiction is fundamental in any litigation; a court cannot validly proceed without it. Once a party successfully challenges the court's jurisdiction, the court is obligated to dismiss the case. 2. The Supreme Court in the Matter of Interim Independent Electoral Commission [2011] eKLR held as follows: “Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14): “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.” [30] The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the Recipient-Court is to apply the same, with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavors to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution”*.* 1. It is therefore my finding that the Preliminary Objection raised by the 1st Defendant is one on pure points of law that this court needs to determine. 2. **Whether the Court has jurisdiction to hear and determine this suit** 3. It is common ground that the jurisdiction of this court is set out under Article 162(2) as read together with Section 13 of the ELC Act, 2011 and that the same relates to the use occupation and title to land. 4. In order to make a determination as to whether the issues before are land related my attention has been drawn to the decision in the case of **Suzanne Achieng Butler & 4 others v Redhill Heights Investments Limited & another [2016] eKLR,** which decision I agree with. In the said case the court stated that; “In all honesty, it would not be possible for such direction to come from the Constitution or statute; it would have to be supplied by the Courts in a case by case basis. Such is our task here. 23. When faced with a controversy whether a particular case is a dispute about land (which should be litigated at the ELC) or not, the Courts utilize the **Pre-dominant Purpose Test:** In a transaction involving both a sale of land and other services or goods, jurisdiction lies at the ELC if the transaction is predominantly for land, but the High Court has jurisdiction if the transaction is predominantly for the provision of goods, construction, or works. 24. The Court must first determine whether the pre-dominant purpose of the transaction is the sale of land or construction. Whether the High Court or the ELC has jurisdiction hinges on the predominant purpose of the transaction, that is, whether the contract primarily concerns the sale of land or, in this case, the construction of a townhouse. 25. Ordinarily, the pleadings give the Court sufficient glimpse to examine the transaction to determine whether sale of land or other services was the predominant purpose of the contract. This test accords with what other Courts have done and therefore lends predictability to the issue. 26. In my view, the following factors are significant in determining the nature of the contract: 1. The language of the contract; 2. The nature of the business of the vendor; 3. If the contract is mixed, the intrinsic worth of the two parts – land acquisition and other services or provision of materials; 4. **The gravamen of the dispute – whether rooted in contests about ownership, deficiency in title, occupation or use of the land or whether the genesis of the dispute is something else like the quality of services offered, construction, works and so forth; and the remedies sought by the Plaintiff” (emphasis mine).** 5. From the above case and using the Predominant Purpose Test, it will be paramount for the court to determine the gravamen of the dispute between the parties herein and determine whether the same is rooted in contests about ownership, deficiency in title, occupation or use of the land or something else. 6. The Court of Appeal in the case of Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others [2017] eKLRwhile determining the issue of jurisdiction for the Environment and Land Court stated that; 32. As for land use, the **Black’s Law Dictionary, 9th Edn;** gives the basic definition of the word ‘use’ as being: - ‘the application or employment of something; esp. a long continued possession and employment of a thing for the purpose for which it is adapted, as distinguished from a possession or employment that is merely temporary or occasional.’ Emphasis added.’ *35.* Accordingly, for land use to occur, the land must be utilized for the purpose for which the surface of the land, air above it or ground below it is adapted. To the law therefore, land use entails the application or employment of the surface of the land and/or the air above it and/ or ground below it according to the purpose for which that land is adapted. Neither the cujus doctrine nor Article 260 whether expressly or by implication recognizes charging land as connoting land use. 41. …. the jurisdiction of the ELC to deal with disputes relating to contracts under Section 13 of the ELC Act ought to be understood within the context of the court’s jurisdiction to deal with disputes connected to ‘use’ of land as discussed herein above. Such contracts, in our view, ought to be incidental to the ‘use’ of land; they do not include mortgages, charges, collection of dues and rents which fall within the civil jurisdiction of the High Court.” 1. From the Plaint, the Plaintiff seeks judgment in his favour for a declaration that he is entitled to the compensation of the assessed value of three (3) acres of the suit property and that the assessed sum be paid to him pursuant to the Agreement dated 17/6/2021. 2. As earlier noted, the Plaintiffs’ case is that he entered into an Agreement for dated 17/6/202 in which the 1st Defendant agreed to convey three (3) acres of the suit property. In return, the Plaintiff was to assist and finance the 1st Defendant’s acquisition and processing of the Title in the 1st Defendant’s name. 3. I have perused the Agreement. It was agreed at Paragraph 3 thereof that the Plaintiff had agreed in return of the membership to the 1st Defendant and apportionment of the three (3) acres, to facilitate and assist the 1st Defendant monetarily to process the Title for the entire suit property from the Ministry of Lands and Physical Planning. 4. Under the Agreement, the Plaintiff was to obtain 3 acres from the suit property after assisting the 1st Defendant in processing the Title. The Plaintiff avers that after the Title was obtained and the Interested Parties compulsorily acquired the suit property, the 1st Defendant has refused to pay him his share, equivalent to three (3) acres, which he ought to have obtained. Evidently, the issues raised by the Plaintiff cannot be severed for hearing by the High Court. The reliefs sought by the Plaintiff are centred on breach of contract and compensation following the compulsory acquisition. These reliefs can only be issued and/or obtained from this Court and not from the High Court or the Land Acquisition Tribunal. 5. Guided by the Co-operative Bank of Kenya Limited v Patrick KangetheNjuguna & 5 others (Supra) and the decision by the Learned JudgeNgugi J **Suzanne Achieng Butler & 4 others v Redhill Heights Investments Limited & Another (Supra) the trans**action herein being who should be compensated for the acquisition of the 3 acres, it clear that the dispute revolves predominantly around land. Therefore, in line with the predominant purpose test, this Court is clothed with the requisite jurisdiction to hear and determine it. 6. Final orders for disposal 1. Accordingly, this court finds that it has the jurisdiction to hear and determine this matter. 2. The 1st Defendant’s Preliminary Objection is therefore dismissed with costs to the Plaintiff. 7. It is so ordered. **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 2ND DAY OF JULY 2026 VIA MICROSOFT TEAMS.** **J. G. KEMEI** **JUDGE** **Delivered Online in the presence of:** 1. Mr Bundotich for the Plaintiff 2. N/A for the Defendants 3. N/A for the 1st Interested Party 4. Mr. Ronald Too for the 2nd Interested Party 5. CA- Ms Kendi