https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3772

Githunguri Constituency Ranching Co Ltd v Waciumau (Environment and Land Appeal E108 of 2025) [2026] KEELC 3772 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEELC 3772 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Appeal E108 of 2025 JA Mogeni, J June 17, 2026 Between Githunguri Constituency Ranching Co Ltd Appellant and Gachucha Ndegwa Waciumau Respondent Ruling 1.This Application dated 29/08/2025 is filed by the Appellant it is brought under Section 3(1) of the High Court (Practice & Procedure) Rules, The Judicature Act (Cap 8, Laws of Kenya), Sections 1A, 1B, 3A of the Civil Procedure Act, Order 22 Rule 22, Order 51 Rule 1 of the Civil Procedure Rules, 2010, Article 159(2)(d) of the Constitution of Kenya and all other enabling rules, regulations, and provisions of the law. 2.The Appellant/Applicant seeks the following prayers in the said application:1.Spent2.That this Honourable Court be pleased to grant leave to the Applicant for the application filed herewith to be heard under the High Court (Practice & Procedure) Vacation Rules.3.That there be a stay of execution of the ruling delivered on 28th August 2025, and all the consequential orders thereto, pending the hearing and determination of this application.4.That there be a stay of execution of the ruling delivered on 28th August 2025, and all the consequential orders thereto, pending the hearing and determination of the appeal.5.That this Honorable Court be pleased to make an order that all the funds held by the firm of NGERESA & Co. Advocates pursuant to the sale of land parcel RUIRU EAST BLOCK 1 (GITHUNGURI) 756 in execution of the Small Claims Court's decree in Thika No. 967 of 2023, allegedly belonging to the Respondent, either be deposited to this Honorable Court or be held in a joint account to be opened in the joint names of the Respondent's counsel and the Appellant's counsel, pending the determination of whom the legal owner of the subject land is established.6.That this Honorable Court be pleased to halt any payments of funds realized after the auction of land parcel RUIRU EAST BLOCK 1 (GITHUNGURI) 756 to the Respondent or his counsel, and be pleased to issue directions that are expedient in the circumstances so as to ensure the ends of justice are met.7.That the costs of this application be in the cause. 3.Which application is based on the grounds (a) to (l) and the supporting affidavit of Philip Kariuki Gathenge sworn on even date. 4.The deponent, Philip Kariuki Gathenge, avers that he is a director of the Interested Party, whose capacity is substantiated by the Certificate of Incorporation annexed as PKG 1. He deposes that by a ruling delivered on 25/08/2025, the Honorable Mary Kamau declared the Appellant’s application dated 5/08/2025 unmeritorious and ordered it closed, a certified copy of which is annexed as PKG 2. The deponent clarifies that the said application had been filed to safeguard funds realized from a public auction of land parcel Ruiru East Block 1 (Githunguri) 756, a property in which the Appellant/Applicant maintains a proprietary interest as demonstrated by the application annexed as PKG 3. Being aggrieved by the lower court's decision, the Appellant has since preferred an appeal before the Environment and Land Court at Thika, designated as ELC Appeal No. E108 of 2025, as evidenced by the Memorandum of Appeal annexed as PKG 4. 5.In explaining the substratum of the dispute, the deponent states that the Appellant is a land-buying company comprising over 4,000 members who obtain share certificates and participate in balloting upon payment of requisite funds. The company holds three blocks of land within Ruiru, namely Ruiru Kiu Block 2, Ruiru East Block 1, and Ruiru West Block 1, where a fully paid-up shareholder is entitled to three parcels across the blocks. The Respondent is a shareholder of the company, a status confirmed by the share certificate annexed as PKG 5. 6.The Respondent was originally allocated three portions under share certificate number B 4701, but following successive transfers and sales including a transaction on 25/01/2019 with Itrade Investments Limited his documentation was revised, culminating in share certificate number B 3115 which strictly limits his remaining entitlement to a single quarter-acre plot. 7.The deponent further avers that the Respondent subsequently approached the company with ballot number R/W 001065, claiming non-allocation of his plot, which he identified as parcel 756 in Ruiru Kiu Block 2. Acting in good faith and without prior knowledge of double allocation, the company processed a title deed for the Respondent for land parcel Ruiru Kiu Block 2 (Githunguri) 756, unaware that he had already received his rightful allotment, which title deed is annexed as PKG 6. The company was recently apprised that the subject property was sold via a public auction conducted by Chador Auctioneers, and the proceeds are currently held by the firm of Ngerasa & Co. Advocates. Because the court has ordered the release of these funds to the Respondent’s counsel, the company has intervened by writing to the Land Registrar to foreclose all dealings on the Respondent’s actual land, as shown by the correspondence annexed as PKG 7. 8.The deponent maintains that the Respondent cannot legally benefit twice by obtaining two parcels under the same allocation number, and that this underlying dispute must first be adjudicated before the Environment and Land Court. Releasing the auction proceeds prematurely will cause irreparable prejudice to the company. Consequently, to iron out the true ownership of land parcel 756, the company has instituted a substantive suit before the Thika Law Courts designated as Ruiru MCLE E170 of 2025, as demonstrated by the pleadings annexed as PKG 8. The deponent concludes by praying that this Honorable Court safe-guards the res by ordering the funds to be deposited into a joint account in the names of the respective advocates pending the final determination of the matter. 9.The Application is opposed, the Respondent filed a Replying Affidavit sworn on 16/03/2025 by Gachuha Ndegwa Wachiumau and deposes that the application is entirely unmeritorious, misconceived, and orchestrated to hoodwink the Honorable Court into granting undeserved reliefs. While admitting that paragraphs one and two of the supporting affidavit are merely introductory, the Respondent concurs with the averments in paragraph three regarding the ruling of the lower court, confirming that the Appellant’s application dated 5/08/2025 was indeed found to be without merit and consequently dismissed. 10.In response to the merits of the dispute, the Respondent vehemently denies that the primary application at the Small Claims Court was preferred to safeguard auction proceeds from land parcel Ruiru East Block 1 (Githunguri) 756. On the contrary, he asserts that the application was a bad-faith attempt to frustrate him from enjoying the lawful proceeds realized from the sale of his parcel of land. The Respondent denies the corporate structure, land allocation histories, and transfer details set out by the Appellant, putting the Appellant to strict proof of all claims, including those touching on the share certificates and title deed referenced in the supporting affidavit. He strongly refutes the allegation that he acquired the suit land illegally, maintaining instead that he followed due process to acquire lawful title. 11.The Respondent further denies the assertion that he has unjustly benefited twice from the company's land allocations. He points out that this allegation of double benefit was never raised in the primary suit before the Small Claims Court. He notes that the Appellant has since filed a separate, subsequent substantive suit at the Ruiru Magistrates Court, designated as Ruiru MCLE 170 of 2025, which explicitly seeks a determination on the ownership of the suit land. The Respondent argues that the interested party is merely levelling unsubstantiated allegations lacking tangible supporting evidence. He concludes by stating that the present application is designed solely to deny him access to the residual funds from the sale of his property, and prays that this Honorable Court dismisses the application with costs. 12.Before the Application was heard and determined the Respondent also filed a Notice of Preliminary Objection dated 22/10/2025 on the following grounds:i.That this Honourable Court does not have jurisdiction to hear and determine this suit, as the application directly contravenes Section 38 of the Small Claims Court Act and Section 13 of the Environment and Land Court Act.ii.That the Applicant’s application in Thika Small Claims Court SCC COMM E967 OF 2023 was strictly based on the proceeds of sale of land parcel RUIRU EAST BLOCK 1 (GITHUNGURI) 756 and not on the ownership of the said land.iii.That being dissatisfied with the Small Claims Court's ruling, the Appellant ought to have filed an appeal at the High Court and not this Court, as the underlying claim was purely a money claim and not a dispute touching on the ownership of land.iv.That the Applicant’s Notice of Motion application dated 29th August 2025 be dismissed and/or struck out with costs to the Respondent. 13.The Respondent therefore prays that the Appellant’s application and the Appeal be dismissed with costs. 14.The Preliminary Objection is opposed by the Appellant/Respondent who filed a Replying Affidavit sworn by Philip Kariuki Gathenge on 20/02/2026. The Respondent in opposing the preliminary objection raises a primary contestation that a preliminary objection is strictly tenable on point of law where the facts are straightforward, uncontroverted, and require no factual verification, which is not the case in the present matter. He deposes that the dispute fundamentally requires the Court to investigate the true ownership of the land parcel referenced in the preliminary objection, namely Ruiru East Block 1 (Githunguri) 756, as the Appellant company maintains that the land does not belong to the Respondent, disentitling him from receiving the residual proceeds of its sale. 15.In providing the factual substratum to demonstrate that the matter turns on disputed facts rather than pure points of law, the deponent details that the Respondent is a member of the Appellant company who holds ballot number RW 001065. This specific ballot exclusively entitled the Respondent to land parcel Ruiru Kiu Block 2 (Githunguri) 756, which is supported by a title deed and a copy of the official Green Card annexed as PKG 1, confirming that the Respondent currently resides on that specific property with his family. The deponent further states that the Respondent improperly used the exact same ballot number, RW 001065, to duplicate documentation and procure a separate title deed for land parcel Ruiru East Block 1 (Githunguri) 756, as evidenced by the copy of the title deed annexed as PKG 2. 16.The deponent elucidates that the Appellant company owns three distinct blocks of land, namely Ruiru Kiu Block 2, Ruiru East Block 1, and Ruiru West Block 1. He contends that it is procedurally impossible for a shareholder to deploy a single ballot allocation to lay claim to parcels across different blocks, arguing that the Respondent's actions constitute a fraudulent double-allocation amounting to unjust enrichment. The affidavit connects this land ownership dispute to the lower court proceedings by stating that the Respondent was the judgment debtor in Thika Small Claims Court Case No. SCC COMM E967 of 2023, where a monetary decree was entered against him, as demonstrated by the copy of the decree annexed as PKG 3. In execution of that decree, the Respondent offered land parcel Ruiru East Block 1 (Githunguri) 756 for public auction, and the trial court subsequently ordered the realized funds to be held by the decree holder's counsel. 17.The deponent avers that the Appellant company became aware of the transaction during the transfer and due diligence stage, prompting them to file an objection before the Small Claims Court. In that objection, the Appellant apprised the lower court that the Respondent's legitimate allotment was restricted to Ruiru Kiu Block 2 (Githunguri) 756, and requested the court to withhold the release of the residual auction proceeds until the true ownership of the property was ironed out. Because the trial adjudicator declined the request to secure the funds in an interest-earning account, the Appellant was compelled to prefer the instant appeal. 18.The deponent maintains that the appeal directly relates to a contest over land ownership and the preservation of the res, which strips the High Court of primary jurisdiction and vests it in the Environment and Land Court. He argues that this Court has the requisite jurisdiction to preserve the proceeds of sale pending the final determination of the substantive land ownership dispute, which has already been filed before the lower court as Ruiru MCLE No. E170 of 2025, as evidenced by the copy of the Plaint annexed as PKG 4. The deponent concludes by emphasizing that because these complex factual disputes cannot be resolved through the summary nature of a preliminary objection, the Respondent's objection is entirely misplaced and ought to be dismissed with costs. 19.Both the Application and the Notice of Preliminary Objection was canvassed by way of written submissions. My scrutiny of the CTS has only come up with written submissions filed by the Appellant 27/03/2026. I have considered the same in the ruling. 20.In a brief summary, the matter for determination before this Court stems from the Appellant's Notice of Motion application dated 29/08/ 2025, which primarily seeks a stay of execution of the lower court's ruling delivered on 28/08/2025 and consequential conservatory orders to secure disputed funds. The application is opposed by the Respondent, who has simultaneously raised a Notice of Preliminary Objection dated 22/10/2025 challenging the competence and jurisdiction of this Court to entertain both the application and the underlying appeal.. 21.In order for the court to comprehensively resolve the competing claims presented by the parties through their respective affidavits and submissions, the Court isolates two primary issues for determination:1.Whether the Respondent’s Preliminary Objection satisfies the threshold of law to summarily terminate the application and appeal, or whether it raises contested questions of fact.2.Whether this Court possesses the statutory and appellate jurisdiction to hear and determine an appeal arising from a decree of the Small Claims Court concerning execution proceeds. 22.The Respondent’s objection asserts that the dispute is purely a commercial money claim arising from the Small Claims Court, meaning this Court lacks jurisdiction. Conversely, the Appellant argues that the objection is untenable because it is intertwined with complex facts surrounding land registration, share allocation, and allegations of fraud. 23.The nature and strict threshold of a preliminary objection were immutable laws established in the locus classicus case of Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd (1969) EA 696. Where in that decision, Law, J.A. stated:“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."In the same case, Newbold, P. clarified further:“A preliminary objection consists of a point of law which has been pleaded, or which arises clear out of the pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the pleading discloses no cause of action." 24.Now, applying this test to the case at hand, the Respondent’s objection asserts that this Court lacks jurisdiction because the underlying claim was a money claim under Section 38 of the Small Claims Court Act, rather than an environmental or land dispute. Jurisdiction is a pure question of law. Although the Appellant invites the Court to investigate the complex histories of ballot number RW 001065 and the title deeds marked as PKG 1 and PKG 2, the jurisdictional question can be resolved by looking strictly at the face of the pleadings and the statutory provisions cited. Therefore, the Preliminary Objection is proper in form as it challenges the foundational authority of this Court. 25.Furthermore, the core of the Respondent's objection is that this Court lacks the requisite jurisdiction because the primary suit at Thika SCC COMM E967 of 2023 was a Small Claims Court matter, and any subsequent appeal must strictly conform to the Small Claims Court Act, Cap 18C of the Laws of Kenya. 26.As is, jurisdiction is the lifeblood of any judicial proceedings. As Nyarangi, J.A. famously stated in In re The Matter of the Interim Independent Electoral Commission (2011) eKLR, adopting the standard set in Owners of the Motor Vessel ‘Mv Lillian S’ v. Caltex Oil (Kenya) Ltd (1989) KLR 1:.“Jurisdiction is everything. Without it, a court has no power to see one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending evidence. A court of law downs tools the moment holds the opinion that it is without jurisdiction." 27.To determine whether this Court must down tools, we examine the specific appellate framework provided by Parliament for the Small Claims Court. Section 38 of the Small Claims Court Act explicitly establishes the avenue for appeals:Section 38(1): "A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court." 28.The statute explicitly designates the High Court, and not the Environment and Land Court (ELC), as the proper appellate forum for any person aggrieved by an order or decision of the Small Claims Court. 29.The Appellant attempts to bypass this provision by arguing that the execution process involved the auction of land parcel RUIRU EAST BLOCK 1 (GITHUNGURI) 756, which transforms the matter into a land dispute falling under Section 13 of the Environment and Land Court Act. However, the record shows that the primary decree in SCC COMM E967 of 2023 was a monetary judgment. The auction was merely a mechanism of execution to satisfy that money claim. The funds currently held by the firm of Ngerasa & Co. Advocates represent the fruits of a commercial decree, not a substantive determination of land ownership. 30.Furthermore, the Supreme Court of Kenya in Republic v. Karisa Chengo & 2 Others (2017) eKLR affirmed that the High Court and the Environment and Land Court are courts of equal status but separate, distinct specialization. A party cannot treat them interchangeably to escape clear statutory mandates. Where Parliament has specifically path-mapped an appeal from a specialized subordinate court to the High Court, this Court cannot arrogate to itself judicial oversight under the guise of investigating land ownership. If the Appellant believes the Respondent committed fraud or double-allocated land, those issues must be fully ventilated in the substantive suit already filed at the lower court, designated as Ruiru MCLE No. E170 of 2025 (PKG 4). 31.Consequently, ELC Appeal No. E108 of 2025 was preferred to the wrong appellate forum, rendering it and the companion Notice of Motion application bad in law and entirely incompetent. 32.Given the foregoing reasons, the Court finds that the Respondent’s Preliminary Objection on the point of jurisdiction is highly merited and is hereby sustained. Because this Court lacks the requisite appellate jurisdiction to entertain matters brought under Section 38 of the Small Claims Court Act, it cannot take any further step or exercise its judicial discretion to grant the stay orders or conservatory funds-preservation orders sought by the Appellant. 33.Accordingly, the Court makes the following final orders:i.The Respondent’s Preliminary Objection dated 22/10/2025 be and is hereby upheld.ii.The Appellant’s Notice of Motion application dated 29/08/ 2025 be and is hereby struck out for want of jurisdiction.iii.The underlying appeal, being ELC Appeal No. E108 of 2025, be and is hereby struck out with costs to the Respondent.Orders Accordingly. DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 17TH DAY OF JUNE, 2026............................MOGENI JJUDGEIn the presence of:Mr. Kanyi for the Appellant1st Respondent – AbsentMr. Gachiri holding brief for Mr. Waweru for the 2nd RespondentMs. Lillian - Court Assistant...........................MOGENI JJUDGE