https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5269

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELCLC NO. E085 OF 2025** **THE LAKE REGION MICRO-CREDIT ENTERPRISES** **T/A KENYA INTERNATIONAL FISHERS DEVELOPMENT** **AND FISH SUPPLIERS AGENCY LIMITED....................PLAINTIFF/APPLICANT** **VERSUS** **THE HONORABLE** **ATTORNEY GENERAL…………….....…………………1ST DEFENDANT/RESPONDENT** **MINISTRY OF LANDS AND** **PHYSICAL PLANNING……….....................……...2ND DEFENDANT/RESPONDENT** **CHARLES NDUNGA WAMBUA………..…….........3RD DEFENDANT/RESPONDENT** **MWANA MUKIA HOUSING** **CO-OPERATIVE SOCIETY……........................….4TH DEFENDANT/RESPONDENT** **ROBERT WAIRIRI………….….......................….…5TH DEFENDANT/RESPONDENT** **GEOFFREY NGUGI GITHUA…….....................…6TH DEFENDANT/RESPONDENT** **IVY ATIENO ODHIAMBO…….....................……..7TH DEFENDANT/RESPONDENT** **MARBEL RISPER ODHIAMBO………......…………8TH DEFENDANT/RESPONDENT** **RULING** 1. Before me is the notice of motion dated 4th March 2025, and the notice of preliminary objection dated 12th July, 2025 respectively. The notice of motion dated 4th March, 2025 is filed by the plaintiff/applicant and it is expressed to be brought under **Order 1 Rule 3, Order 40 Rule 9** of the **Civil Procedure Rules, Section 1A, 1B and 3A** of the **Civil Procedure Act and Article 40** of the **Constitution** of Kenyaseeking the following orders: - 2. ***Spent.*** 3. ***That pending the hearing and determination of the application inter parties this honourable court be pleased to issue an order of injunction stopping and/or restraining the 2nd to 6th defendants/respondents, their representatives and/or people from processing the title for LR. no. Nairobi/Block 171/425 in joint names of the plaintiff/ applicant and the 6th defendant/respondent.*** 4. ***That this honourable court be pleased to issue an order directing the 2nd, 3rd, 4th and 5th defendant/respondent to delete/remove the name of Geoffrey Ngugi Githua from all documents pertaining to ownership of LR no. Nairobi/ Block 171/425 until such a time there shall be compliance by the said 6th defendant/ respondent of the contractual obligations contained in agreement for sale dated 16th August, 2019.*** 5. ***That this honourable court be pleased to issue an order directing the registrar and/or the personel manning the Ardhisasa accounts at the Ministry of Lands, Urban development and Planning to remove and/or delete the name of Geoffrey Ngugi Githua as joint owner of the property known as LR no. Nairobi/Block 171/425 pending fulfilment of all contractual obligation in the agreement for sale dated 16th August, 2019.*** 6. ***That this honourable court be pleased to order that upon removal and/or deletion of the name of Geoffrey Ngugi Githua, the 2nd defendant/respondent be authorized to process the title document in respect of LR no. Nairobi/Block 171/425 in the sole name of the plaintiff/applicant.*** 7. ***That this honourable court be pleased to grant any such other orders as may be just and expedient for dispensing of justice and in view of existing contractual obligation of the applicant and the 6th defendant/respondent.*** 8. ***That costs of this application be provided for in any event.*** 9. The application is premised on the grounds inter alia that there exists an agreement for sale dated 16th August, 2019 between the plaintiff/applicant and the 6th defendant/respondent which has not been fully performed. The application is further supported by the affidavit of David Ochieng Opon, the plaintiff/applicant director sworn on even date. He deposed that the dispute stems from an agreement for sale executed on 16th August, 2019 where the plaintiff/applicant agreed to sell the suit property to the 6th defendant/respondent for Kshs.8,000,000/-. 10. The plaintiff/ applicant deposed that the 6th defendant in breach of the unconventional payment terms, failed to pay the purchase price in the agreed manner, and instead did the same haphazardly. Further, that the parties attempted an alternative resolution where around December 2020, they signed a land settlement agreement based on the 6th defendant/respondent’s claim that he had found a third-party buyer willing to pay Kshs.30,000,000/-. 11. The plaintiff/applicant further deposed that the 6th defendant/respondent failed to produce this buyer within the agreed 6-month timeframe prompting it to officially rescind both the original sale agreement and the land settlement agreement on 21st January, 2021. As a result, the purchase price was never paid, and ownership of the suit property never vested on the 6th defendant/respondent. Further, that despite having cancelled the agreements and paying all required fees the plaintiff/applicant discovered in August 2024 that the 6th defendant/respondent had been listed as a joint owner of the suit property on the government’s digital land registry, Ardhisasa. 12. The plaintiff/applicant deposed that the above was done through the collusion of the 4th and 5th defendants/respondents. In addition, the 3rd defendant/respondent threatened to delete the entries of the suit property entries from the Ardhisasa platform unless he was paid Kshs.500,000/-. In conclusion, it was deposed that the joint tenancy registration on Ardhisasa was inherently fraudulent and unconstitutional, and it was necessary for the 2nd defendant/respondent to process the title deed exclusively in its name and strike out the 6th defendant/respondent’s name from the register. 13. The 6th defendant/respondent filed his replying affidavit sworn on 13th April, 2026. He deposed that he substantially performed his obligations under the said agreement and duly paid consideration in the manner agreed and/or as varied by subsequent mutual arrangements between the parties. Further, that the plaintiff/applicant acknowledged his interest in the suit property and issued instructions to the 4th defendant/respondent on multiple occasions authorizing transfer of the property in his favour. 14. He also deposed that the allegation that his inclusion as a joint owner was fraudulent was false, baseless and a deliberate attempt by the plaintiff/applicant to unjustly deprive him of his proprietary interest in the suit property, and that granting the said orders at the interlocutory stage would amount to determining the substantive dispute with finality, thereby rendering the trial nugatory and occasioning grave prejudice to him. 1. The 3rd defendant/respondent filed his replying affidavit sworn on 9th June, 2025 where he denied the allegations of fraud and averred that every action he took on the ArdhiSasa platform was explicitly instructed by the plaintiff/applicant managing director. He deposed that he always acted according to the instructions given and never interacted with the 4th, 5th, or 6th defendants/respondent. Further, that on 15th June 2024 a transfer had been initially lodged from the 4th defendant/respondent to the plaintiff/applicant which the plaintiff’s managing director subsequently asked for the same to be cancelled since the 6th defendant/respondent needed to be included in a joint proprietorship. 2. The 3rd defendant/respondent deposed that on 24th June 2024, the plaintiff’s managing director asked him to cancel the new transfer which included both the plaintiff/applicant and the 6th defendant/respondent since he had become unresponsive. He deposed that thetransfer is currently ongoing and no new title deed has been issued. Further, that he was never a party to the sale agreement and that the conflict was only between the plaintiff/applicant and the 6th defendant/respondent. He deposed that he was simply doing his job assisting a user on the ArdhiSasa platform. Consequently, he urged the court to strike his name from the suit and dismiss the application with costs. 3. The 7th defendant/respondent also filed her replying affidavit sworn on 22nd April 2026. She deposed that together with her sister they are the beneficial owners of all that property namely Plot No. 1188 Kasarani registered in the name of Moses Timothy Odhiambo Under Membership No. 1495, and that throughout the succession proceedings and gazettement, no person and/or creditor approached the estate and or filed objection proceedings save for one Wycliffe Ochieng. She added that the application was never prosecuted but was later dismissed. The 7th defendant/respondent deposed that it came as a surprise to them that the plaintiff/applicant had gone ahead and instituted a sale and transfer of the suit property without knowledge of the estate of the late Moses Timothy Odhiambo. 4. She deposed that a guarantor had no powers and/or capacity to dispose of a property for a loan he/she guaranteed and thus, the plaintiff/applicant’s action and every other action from it amounted to an illegality rendering the entire sale and transfer void ab initio. She urged the court to allow prayers 2, 3, 4 and 6 of the application as prayed. 5. The 6th defendant/respondent filed the notice of preliminary objection dated 12th July, 2025 seeking to have the suit struck out on the following grounds:- 6. ***That the honourable court lacks pecuniary jurisdiction to entertain the suit as the plaintiff’s claim is founded on a land sale transaction and/or contractual dispute involving land whose stated value is KShs. 8,000,000/- which exceeds the jurisdictional monetary limit of the Environment and Land Court contrary to the provisions of Section 7(1) and 9 of the Magistrates’ court Act.*** 7. ***That the subject matter of the suit being land valued at Kshs. 8,000,000/- and a claim for specific performance thereof, falls exclusively within the original pecuniary jurisdiction of the magistrates’ court which this honourable court lacks.*** 8. ***That Section 9 of the Magistrates Act provides that a court shall in the exercise of the jurisdiction conferred by Section 26 of the Environment and Land Court Act have jurisdiction to over certain claims.*** 9. ***That the entire suit is fatally defective, incompetent and a nullity ab initio having been instituted in a court without jurisdiction, and no amount of subsequent proceedings can cure the said defect.*** 10. ***That the institution and maintenance of this suit in a court without jurisdiction amounts to an abuse of the court process and should not be allowed to stand.*** 11. Both the application and the preliminary objection were canvassed through written submissions. The 6th defendants filed his written submissions dated 13th April 2026, and the 7th and 8th defendants/respondents filed their submissions dated 10th April, 2026. The plaintiff/applicant did not file his written submissions. Be that as it may, I have considered both the application and the preliminary objection. In my view, there are two issues for determination as follows:- 12. *Whether this court has jurisdiction to hear and determine the suit.* 13. *Whether the plaintiff/applicant is entitled to the orders sought in the application.* 14. I will begin with the notice of preliminary objection as it possesses the ability to dispose of the suit. Law, J.A. in **Mukisa Biscuits Manufacturing Company Limited -vs- West End Distributors (1969) EA 696** stated as follows:- ***“So far as I am aware, 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, will dispose of the suit. Examples are an 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...”*** 1. Also, in the case of **John Musakali vs. 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 for trial. If, however, facts are disputed and remain to be ascertained, that would not be a suitable preliminary objection on a point of law.”*** 1. From the above cited authorities, it is clear that for a preliminary objection to succeed, the same must consist of a pure point of law, with the facts not disputed by the opposing party. Also, a preliminary objection should possess the ability to dispose of the issue that is before court without going to trial and lastly, the same ought to stem from pleadings and not outside of that. 2. In applying the above principles to the instant objection, I am satisfied that the objection raises a pure point of law to the extent that it challenges the jurisdiction of this court to hear and determine this suit. It has been stated numerously that that once it is established that the court lacks jurisdiction in matter that it is before, it should immediately down its tools and proceed no further. If it proceeds to do so in disregard of the same, then everything else that follows thereafter becomes a nullity. To determine whether this court has jurisdiction to hear and determine this suit, the court will confine itself to the pleadings and nothing outside of that. 3. The plaintiff/applicant filed the plaint dated 4th March, 2025 seeking the following orders:- 4. ***An order of injunction restraining the defendants by themselves, their representatives, or persons drawing title from processing certificate of title in respect of LR no. Nairobi/Block 171/425 in joint names of the plaintiff and 6th defendant.*** 5. ***An order to issue authorizing the 2nd defendant to remove or delete the name of the 6th defendant Geoffrey Ngugi Githua from all the records held by the 2nd and 4th defendants pertaining to ownership of the subject property and therefore processing the certificate of lease (title) document in the name of the plaintiff.*** 6. ***In the alternative and without prejudice to prayers (i) and (ii) above the 6th defendant be ordered to specifically perform his contractual obligation by paying the balance of the purchase price at the current market value of Kshs.26,000,000/-.*** 7. ***Any other order this honourable court may deem appropriate to grant us in the circumstances.*** 8. ***Costs of the suit.*** 9. From the prayers sought above, it is evident that the plaintiff/applicant seeks Kshs.26,000,000/- being the current value of the suit property. The claim that the suit falls within the jurisdiction of the magistrates’ court fails on the grounds that in the body of the plaint, the plaintiff/applicant gave a chronology of events leading to the acquisition of the suit property which at the time was Kshs.8,000,000/-. The prayers sought indicate that this court is clothed with the requisite jurisdiction to hear this suit. To add to this, any facts challenging the value of the suit property can only be established in trial to ascertain the same. By a general reading of the plaint, I find that this court has jurisdiction to hear and determine the suit. 10. Turning to the merits or otherwise of the application, the plaintiff/applicant seeks orders which are similar to the prayers sought in the plaint. There is no injunction sought pending the hearing and determination of the suit. In the case of **Airland Tours & Travels Ltd V National Industrial Credit Bank Milimani High Court Civil Case No. 1234 of 2002**, the court held as follows:- ***“In an interlocutory application, the court is not required to make any conclusive or definitive findings of fact or law, most certainly not on the basis of contradictory affidavit evidence or disputed provisions of the law.”*** 1. Similarly, in the caseof **Julius Kuria Nganga V Wambui Kigamba [2017] eKLR,** the court held as follows:- ***“Further, the court will also take into account that at this stage the court is not called upon to determine the very issues with finality but only to find out if the applicant has established that he deserved the orders sought basing it on the laid down criteria. See the case of Edwin Kamau Muniu vs Barclays Bank of Kenya Ltd Nairobi (Milimani) High Court, Civil Case No.1118 of 2002, where the court held that:-*** ***“in an interlocutory application, the court is not required to determine the very issues which will be canvassed at the trial with finality. All the court is entitled to at that stage is whether the applicant is entitled to an injunction sought on the usual criteria.”*** 1. The prayers sought in the instant application are final in nature and if the court proceeds to determine the same, it will occasion a serious miscarriage of injustice on the parties as they will be denied the chance to present their evidence. Equally so, there will be nothing left to determine in the main suit. In my view, I find the application was not well thought out, and the same is devoid of merit. 2. From the above, the notice of motion dated 4th March 2025 and the notice of preliminary objection dated 12th July 2025 both lack merit and they are hereby dismissed. Each party to bear its own costs. It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY THIS** **12TH DAY OF AUGUST, 2026.** **HON. MBOGO C.G.** **JUDGE** **12/08/2026.** ***In the presence of:-*** *Mr. Benson Agunga – Court assistant* *Mr. Lochi holding brief or Ms. Wacheke for the 7th and 8th Defendants/Respondents* *No appearance for the Plaintiff*