https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12527

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NYERI** **HIGH COURT CIVIL APPEAL CASE NO. E014 OF 2024** **KENYA AFRICAN OTHAYA BUS UNION…………….APPELLANT** **VERSUS** **IRENE NYAGARI** **ANN KARURU……………………………………....RESPONDENTS** **RULING** 1. The Appellant **KENYA AFRICAN OTHAYA BUS UNION** had filed in the High Court a Memorandum of Appeal dated **19th March 2024** challenging the judgment delivered by the **Nyeri BPRT in Nyeri BPRT No. E098 of 2022** which judgment was delivered on **8th March 2024**. 2. The Respondents **IRENE NYANGARI and ANN KARURU** filed a Notice or Preliminary Objection dated **15th October 2025** seeking to have the appeal struck out. The Notice of Preliminary Objection was premised upon the following grounds:- **“That this matter having arisen from the BPRT on a determination of a notice to terminate tenancy, the appeal should have been filed before the ELC Court in exercise of its appellate jurisdiction. This Court lacks jurisdiction.”** 1. The matter was canvassed by way of written submissions. The Respondents filed the written submissions dated **10th March 2026** whilst the Appellants relied upon their written submissions dated **22nd May 2026**. **ANALYSIS AND DETERMINATION** 1. I have carefully considered the Preliminary Objection filed by the Respondents as well as the written submissions filed by both parties. 2. The definition of a Preliminary Objection was given in the case of **MUKISA BISCUITS MANUFACTURING COMPANY LTD -VS- WEST END DISTIBUTORS LTD [1969] EA** where the court stated as follows:- **“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 the suit. ……………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 facts pleaded by the opposite side are correct. It cannot be raised if any fact is to be ascertained or if what is sought is the exercise of judicial discretion.”** 1. In **Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others [2015] eKLR**, the **Supreme Court of Kenya** stated as follows:- **“a preliminary objection may only be raised on a “pure question of law”. To discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.”** 1. Therefore in order for a preliminary objection to succeed the following tests must be satisfied. 2. **The Preliminary Objection should raise a pure point of law.** 3. **The Preliminary Objection must be argued on the assumption that all the facts pleaded are correct.** 4. **The Preliminary Objection cannot be raised if any fact is to be ascertained or if what is being sought is the exercise of judicial discretion.** 5. **A valid Preliminary Objection ought to if successful dispose of the entire suit.** 6. The Respondents have challenged this appeal on grounds that the High Court lacks the requisite jurisdiction to entertain the appeal. 7. It is trite that a court has to be clothed with relevant jurisdiction before embarking hearing any matter. In the case of **Owners of The Motor Vessel “Lillian S v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR),** the Court of Appeal held as follows:- **“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 its tools in respect of the** **matter before it the moment it holds the opinion that it is without jurisdiction….. Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.” [Own emphasis]** 1. This is an appeal which originates from a judgment delivered by the **BPRT**. The matter in dispute between the parties were notices issued by the Landlord (the Appellant herein) purporting to terminate the tenancy of the Respondents (the tenants). As such the law governing the original dispute was the **Landlord and Tenant (shops, Hotels and Catering Establishments) Act Cap 301** Laws of Kenya **Section 15** of the said Act provides as follows;- **“Appeal to court** 1. **Any party to a reference aggrieved by any determination or order of a Tribunal made therein may, within thirty days after the date of such determination or order, appeal to the Environment and Land Court: Provided that the Environment and Land Court may, where it is satisfied that there is** **sufficient reason for so doing, extend the said period of thirty days upon such conditions, if any, as it may think fit.** 2. **In hearing appeals under subsection (1) of this section the Court shall have all the powers conferred on a Tribunal by or under this Act, in addition to any** **other powers conferred on it by or under any written law. [Own emphasis]** 1. Following the enactment of the **constitution of Kenya 2010**, there was established by virtue of **Article 162 (2) and (**3) the **Environment** and **Land Court (ELC)** in the following terms **“(2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to -** 1. **Employment and labour relations; and** 2. **The environment and the use and occupation of,** **and title to, land.** **(3) Parliament shall determine the jurisdiction and functions** **of the courts contemplated in clause (2)** 1. The **ELC** which has equal status as the High Court was granted the exclusive mandate to handle the adjudication of land related disputes. **Section 150** of the **Land Act, 2012** unequivocally stipulates that the ELC shall have jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Act. 13. **Section 13** of the **Environment and Land Act, 2011** sets out the jurisdiction of the **ELC** as follows:- **“(1) The Court shall have original and appellate jurisdiction to hear determine all disputes in accordance with Article 162(2) (b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.** **(2) In exercise of tis jurisdiction under article 162(2) (b) of the Constitution, the Court [the ELC] shall have power to hear and determine disputes -** **(a) relating to environmental planning and protection, climate issues, land use, planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other** **natural resources;** **(b) relating to compulsory acquisition of land;** **(c) relating to land administration and** **management;** (**d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and** **(e) any other dispute relating to environment and land.** **(3) Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution.”** 14. A clear reading of the above provisions makes it clear that this appeal ought to have been filed in the **ELC**. The High Court has no jurisdiction over the matter. Accordingly I find merit in this Preliminary Objection and allow the same. The memorandum of Appeal dated **19th March** **2024** is hereby struck out. Costs to be met by the Appellants. **Dated in Nyeri this 31st day of July 2026.** **……………………….** **MAUREEN A. ODERO** **JUDGE**