https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4694

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT HOMABAY** **ELC NO. 21 OF 2021** HOMABAY COUNTY GOVERNMENT …………….…………..PLAINTIFF VERSUS KEYSIAN AUCTIONEERS ………….……………………1ST DEFENDANT EQUITY BANK (K) LIMITED ……………..…………….2ND DEFENDANT PERES ATIENO MIRUKA ………………………..……….3RD DEFENDANT CHIEF LAND REGISTRAR ………………..…..………….4TH DEFENDANT THE NATIONAL LAND COMMISSION …………..….…..5TH DEFENDANT THE HON. ATTORNYE GENERAL ……………..……….6TH DEFENDANT **RULING OF PRELIMINARY OBJECTION DATED 8TH MARCH, 2024** **BACKGROUND** On 8th March 2024 the 2nd Defendant herein acting through Morara Apiemi & Nyagito Advocates filed a Preliminary Objection seeking to strike out the suit on the one and only ground that: 1. The Honourable Court lacks jurisdiction to hear and determine the suit. **DIRECTIONS ON DISPOSAL** 1. Directions were taken on 30th September, 2024 whereupon the Court directed that the same be canvassed by way of written submissions. 2. I note that from the record the matter was adjourned severally due to non compliance by the parties. 3. Finally on 23rd April 2024 the issue of mentioning that matter was laid to rest and the Court gave a date for ruling. **SUBMISSIONS BY COUNSELS** 1. The 2nd Defendant's Counsel filed written Submissions in support of the Preliminary Objection on 13th November, 2024. Counsel states that the 3rd Defendant, being the registered owner of the suit property took a loan from the 2nd Defendant using the property as security, that the 3rd Defendant defaulted in repaying the loan as a result of which the 2nd Defendant commenced recovery proceedings through the exercise of its statutory power of sale, that the plaintiff filed suit challenging the charge and seeking rectification of the register. Relying on the cases of Cooperative Bank of Kenya Limited V. Patrick Kangethe Njuguna and Nyanokiri Nyanchama Isaka V Equity Bank (K) Limited & Anor, the 2nd Defendant submits that this matter be struck out on the basis that this court lacks jurisdiction. 1. Though the plaintiff was served, no response to the Preliminary Objection was filed. It therefore goes without stating that the Preliminary Objection is unopposed. 2. However, no withstanding the above, I have a duty of determining whether the Preliminary Objection meets the threshold. 3. The main thrust of the preliminary objection is that the Court lacks jurisdiction to entertain the suit. 4. The suit was instituted by way of plaint dated 10th July, 2014 and subsequently amended on 3rd February, 2022. 5. The plaint as drafted has pleaded particulars of misrepresentation and fraud against the 2nd and 3rd Defendants. In its prayers, the plaintiff seeks several Orders which include: (a) The suit parcel is part of Lake Shore. (b) Order of rectification of the register to remove interest and the name of the 2nd and 3rd Defendant. (c) Order of permanent injunction. 1. These orders are sought against all Defendants. 2. In the amended Defence at paragraph 12 of the amended Defence, the 2nd Defendant pleads that there is no cause of action against it, the suit is non compliant with the mandatory provisions and rules of procedure, is incompetent, fictitious, unavailable, bad in law, incurably defective and an abuse of the due process. 13. On 8/3/2024 the 2nd defendant issued a notice of Preliminary Objection challenging the jurisdiction of this court to hear and determine the suit. 13. Law J.A in Mukisa Biscuits Manufacturing Company Limited V. West End Distributors [1969] EA 696 stated as follows: ***"So far as I am aware a preliminary objection consists of pure point of law which has been pleaded, which it argued as a preliminary point, will dispose of the suit. Examples are objection to jurisdiction of the Court, a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the matter to arbitration."*** 14. Also, in the case of John Musakali v Speaker County of Bungoma & 4 others [2015] eKLR, it was held that: ***"The position in law is that a preliminary objection should arise from the pleadings and on the basis that facts are agreed by both sides. Once raised, the preliminary objection should have the potential to disposing of the suit at that point without the need to go to trial. If, however, facts are disputed and remain to be ascertained, that would not be a suitable preliminary objection on a point of law."*** 15. The issue herein is whether the preliminary objection is a pure point of law. 16. The suit herein was instituted by way of plaint and subsequently amended on 3rd February, 2022. 17. At paragraph 6 thereof the plaintiff pleads thus: ***"6. The plaintiffs claim against the Defendants is for orders of permanent injunction restraining the defendants from entry, laying claim on land parcel number Kanyada/Kanyabala/2020 (hereinafter referred to as the suit parcel of land) as the said property parcel of land is the property of the plaintiff where the main water intake and pumping station is located for the residents of Homa Bay Town."*** ***"7. The plaintiff seeks for a rectification of the register to cancel the name of the 3rd defendant and remove the name of the 2nd defendant thereon and instead to have the plaintiff's name registered as the owner of the suit parcel of land."*** ***"8. The plaintiff avers that on unknown dates the 3rd defendant caused the original parcel number Kanyada/Kanyabala/1377 to be sub-divided and that during the survey process of sub-division, the 3rd defendant misrepresented the survey office that what is now parcel number Kanyada/Kanyabala/2020 was part of land parcel number Kanyada/Kanyabala/1377."*** 18. As per submissions made by the 2nd Defendant, the dominant issue is the change registered in favour of the 2nd defendant and seeking registration of the charge. 19. From the amended plaint, the disputes seem to be about fraudulent sub-division and transfer of land which is riparian land, and though it is said there was a change, the same was between the 2nd and 3rd Defendants. 20. A cursory glance at the plaint shows that the change, if it was ever registered, was fraudulent as the parcel in issue belonged to the plaintiff. 21. Section 13(2) of the Environment and Land Court Act clothes this Court with jurisdiction and specifically states: "In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes; 1. Relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; 2. Relating to compulsory acquisition; 3. Relating to land administration and management; 4. Relating to public, private and community land and contracts, choses in action or other instructions granting enforceable interests in land; and 5. any other dispute relating to environment and land." 22. The Plaintiff has pleaded several violations against the defendant which stops at selling land which is riparian land. 1. This Court will, in the process of hearing this matter, determine a mixture of issues which includes and is not limited to. 2. whether the Plaintiff was party to the Charge; 3. whether the land in issue is riparian land and whether legally it can be a subject of sale; 4. whether the transfer was fraudulent and was done through misrepresentation. 5. In the case of **Milimani Splendor Management Limited v National Environment Management Authority and 4 Others [2019] eKLR**, the ELC Court was called upon to determine jurisdiction and it aptly stated: ***"Section 9 of the EMCA enjoins the 1st respondent to co-ordinate the various environmental management activities being undertaken by lead agencies and to promote the integration of environmental considerations into development policies, plans, projects and programmes to ensure the proper management and use of environmental resources. Section 108 and 111 of the EMCA empowers NEMA and the Court respectively to issue an environmental restoration order to any person to prevent the person from taking any action that is reasonably likely to cause harm to the environment. This places the Court and NEMA on the forefront in the protection of the environment and lends credence to the preamble to the Constitution which states that the people of Kenya are respectful to the Environment and are determined to sustain it for the benefit of future generations."*** 1. The High Court sitting at Kiambu in Maina & 7 Others v Kenya National Highways Authority & 2 Others (Civil Case E005 of 2021) [2022] KEHC 11601 (KLR) found that the issue before it was the use of riparian land and, having appreciated that it had no jurisdiction, remitted the case to the ELC Court. 2. In the pleadings filed in Court the plaintiff has pleaded that the parcel of land which the defendants are laying claim is its property and that is where the main water intake and pumping station is located. 3. The plaintiff also seeks to cancel the name of the 3rd defendant from the register and remove the name of the 2nd defendant as well from charge therein. 4. The other issue which is the gravamen of this dispute is that by way of misrepresentation, the 3rd defendant caused the original title to be sub-divided. 5. The plaintiff has gone ahead to plead and particularize misrepresentation and fraud. 6. In my view the dorminant issue is not the loan but the issue or dispute manner in which land belonging to the plaintiff was fraudulently and illegally acquired. 7. The issue of the loan is between the 1st, 2nd and 3rd defendant to the exclusion of the plaintiff who was not party to the transaction. 8. The interplay of ownership and fraudulently charging the property are matters which are within the jurisdiction of the court. 9. In the upshot, I find that the preliminary objection has no legs and it is meant to delay the finalization of this matter. 10. I process to dismiss the preliminary objection with no orders as to costs. 11. It is so ordered. Ruling, Dated and Delivered at Homa Bay via teams platform this 10th day of July 2026. **In the presence of;** 1. Odande present for the 2nd and 3rd defendant 2. Odhiambo for the County Government. 3. Court Assistant; Dalphine Bosibori. JUSTICE J. W WANYONYI -JUDGE 10.7.2026