https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4547

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELCLC NO. E084 OF 2025** **JOSEPHINE MUMBI MACHARIA** **ISAAC NGUGI NGANGA (*Suing as the Administrators ad litem of the*** ***Estate of Damaris Wairimu Muriu- Deceased)………………………*PLAINTIFFS** **VERSUS** **ANTHONY MBURU MURIU……………………..……………1ST DEFENDANT** **PETER KIHIKA MBURU………………………………………..2ND DEFENDANT** **KIAMBU LAND REGISTRAR……………………………...……3RD DEFENDANT** **RULING** 1. The 1st and 2nd Defendants filed a Preliminary Objection seeking to strike out the Plaintiffs' Plaint dated 12/05/2025 and dismissed the suit in its entirety on the following grounds: - 2. **THAT** this Honourable Court fundamentally lacks territorial jurisdiction to hear and determine this matter under the principle of *forum non conveniens*, as the 1st and 2nd Defendants reside, carry on business, and work for gain in Lari, within Limuru Sub-County in Kiambu County, outside the local limits of this Court's immediate station. 3. **THAT** the *situs* of the subject matter forming the substratum of this suit is situated in Lari, within Limuru Sub-County in Kiambu County, thereby depriving this specific registry of the requisite territorial nexus to entertain the claim. 4. **THAT** the suit constitutes a patent breach of the law and violates the mandatory provisions of Section 4 of the Civil Procedure Act (Cap. 21) to wit: “Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits, if any, of its ordinary jurisdiction.” 1. **THAT** the suit is filed in total contravention of the statutory framework and violates the mandatory, non-discretionary provisions of Section 12 of the Civil Procedure Act (Cap. 21) regarding the institution of suits relating to immovable property, to wit: “Subject to the pecuniary or other limitations prescribed by any law, suits— 1. for the recovery of immovable property, with or without rent or profits; 2. for the partition of immovable property; 3. for the foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property; 4. for the determination of any other right to or interest in immovable property; 5. for compensation for wrong to immovable property; 6. for the recovery of movable property actually under distraint or attachment, where the property is situate in Kenya, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate: Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the Defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the Defendant actually and voluntarily resides or carries on business, or personally works for gain.” 1. **THAT** the current action constitutes a total bypass of due procedure and violates the mandatory provisions of Section 15(c) of the Civil Procedure Act (Cap. 21), to wit: “Subject to the limitations aforesaid in Section 12 and 13 of the Act every suit shall be instituted in a Court within the local limits of whose jurisdiction: (a) The Defendant or each of the Defendants, where there are more than one, at the time of commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain, or (b) Any of the Defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides or carries on business or personally looks for gain, provided either the leave of the Court is given or the Defendants who do not reside or carry on business or personally work or carry on business or personally work for gain in aforesaid acquiesce, in such institution or (c) The cause of action wholly or in part arises.” 1. **THAT** by reason of the foregoing statutory violations, the suit is *prima facie* incompetent, fatally defective, represents a clear instance of impermissible forum shopping, and otherwise constitutes an egregious abuse of the due process of this Honourable Court, and must inevitably be struck out with costs to the 1st and 2nd Defendants. 2. The Plaintiff/Respondent filed a Replying Affidavit sworn on 5/12/2025 by Isaac Ngugi Nganga, who has filed the Plaint suing as an administrator *ad litem* of the estate of the deceased Damaris Wairimu Muriu, and deposes in the said Affidavit that 1st and 2nd Defendants’ Notice of Preliminary Objection dated 8/08/2025 is an abuse of the Court process designed to delay the expeditious disposal of the suit and should be dismissed with costs. 3. He further asserts that the Honourable Court is properly seized of both territorial and pecuniary jurisdiction to hear and determine the matter, given that the suit property is situated in Lari within Kiambu County and holds a market value of Kenya Shillings Twenty-Seven Million (Kshs. 27,000,000) as evinced by the valuation report annexed thereto as "**NN-1"**. 4. In response, the Applicants filed a Supplementary Affidavit sworn on 23/02/2026 by the 1st Defendant, Anthony Mburu Muriu, and he deposes while fully adopting and reiterating the averments contained in the 1st and 2nd Defendants’ Notice of Preliminary Objection in response to the 2nd Plaintiff’s Replying Affidavit. The Deponent contends that the Plaintiffs’ choice of forum constitutes impermissible forum shopping predicated upon ignorance of the law, especially since the 2nd Plaintiff explicitly concedes that the suit property, L.R. No. Kiambu/Lari/3041, is situated within the Lari area of Kiambu County, where all the primary parties reside. 5. Furthermore, the Deponent impugns the Plaintiffs’ valuation of Kenya Shillings Twenty-Seven Million (Kshs. 27,000,000) as highly misleading, erroneous, and *prima facie* exaggerated solely to fabricate a jurisdictional basis before this Honourable Court; instead, he introduces an independent valuation report annexed as "AMM-1" which places the true market value of the suit property at Kenya Shillings Twelve Million (Kshs. 12,000,000.00). Consequently, the 1st Defendant prays that, upon consideration of the underlying Preliminary Objection, the Plaintiffs' suit be dismissed in its entirety with costs. 6. The parties canvassed the Application by way of written submissions. The Applicant filed their submissions dated 23/02/2026 and the Plaintiff/Respondent’s Submissions are dated 9/03/2026. 7. In support of their Preliminary Objection the 1st and 2nd Defendants (Respondents) submit that this Honourable Court is entirely stripped of territorial jurisdiction to entertain, hear, and determine the Plaintiffs’ suit. The underlying suit primarily challenges the legality of the transfer and subsequent amalgamation of the suit properties, specifically L.R No. Kiambu/Lari/752 and L.R No. Kiambu/Lari/751 into L.R No. Kiambu/Lari/3041, alongside prayers for cancellation, eviction, permanent injunction, and mesne profits. 8. In response to these claims, the Defendants raise a threshold point of law, contending that the subject matter of the dispute is entirely situated within Lari, Limuru Sub-County within Kiambu County, which is also the exact locality where the Defendants reside, carry on business, and personally work for gain. Consequently, the Defendants submit that the institution of this suit before this Court constitutes a fatal infraction of the mandatory statutory underpinnings of Section 15(c) of the Civil Procedure Act, 2010, which imperatively dictates that suits must be instituted within the local limits of the Court where the Defendant resides or where the cause of action arises. 9. In addressing the sole issue for determination being whether the Preliminary Objection is merited the Defendants contend that their objection perfectly aligns with the strict legal definition of a Preliminary Objection. Invoking the foundational jurisprudence in **Mukisa Biscuits Manufacturing Company Ltd v West End Distributors Ltd (1969) EA 696**, the Defendants submit that a valid Preliminary Objection must consist of a pure point of law arising by clear implication from the pleadings which, if argued, is capable of disposing of the suit altogether. 10. They emphasize that their objection does not delve into disputed facts requiring evidentiary proof, but rather rests on the uncontroverted factual reality that the land, the cause of action, and the parties' residences reside outside the territorial limits of this Court. To bolster this position, the Defendants cite **Mary Musuki Mudachi & Another v Anthony Muteke Mudachi & 2 Others; Elijah K. Kimanzi & 6 Others (Interested Parties) [2021] eKLR**, noting that while the phrase "within local limits" may not have a rigid statutory definition, judicial prudence interprets it to mean matters of logistical convenience, directing that suits must be channelled to the specific law Courts where the land is situated and where parties work for gain. In this instance, that venue is unambiguously the Limuru Law Courts. 11. The Defendants argue that by bypassing the proper geographical forum, the Plaintiffs have engaged in a clear and impermissible exercise of "forum shopping" for reasons best known to themselves. It is the Defendants' strong submission that jurisdiction is the lifeblood of any judicial adjudication, anchoring this argument on the *locus classicus* decision of **Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited (1989) eKLR**, which settled the immutable principle that jurisdiction is everything, and without it, a Court cannot take even one more step in the matter lest its actions escape legality. 12. This is further supported by the Supreme Court pronouncement in **Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR**, which firmly established that a Court’s jurisdiction flows strictly from either the Constitution or legislation, and a Court cannot arrogate to itself jurisdiction exceeding that which is conferred by law. Ultimate weight is placed on the fact that since the Limuru Law Courts are fully operational, convenient, and legally clothed with the competence to hear this land matter, this Honourable Court lacks the requisite territorial mandate. In the premises, the Defendants pray that the Preliminary Objection be sustained and the Plaintiffs’ suit be struck out with costs. 13. In response the Plaintiffs/Respondents in their submissions submit that this Honourable Court possesses the requisite territorial and substantive jurisdiction to hear and determine this dispute. The Plaintiffs acknowledge as uncontroverted the fact that the suit property is located in Lari within Kiambu County and that the Defendants reside therein. However, they vehemently oppose the assertion that this Court is stripped of jurisdiction, clarifying that at the time of the institution of this suit on 20/05/2025, the Thika Environment and Land Court was the singular and exclusive Environment and Land Court established within the wider Kiambu County. While inviting the Court to take judicial notice of Gazette Notice Number 15210 of 22/10/2025, through which the Honourable Chief Justice established the Environment and Land Court at Limuru with effect from 15/01/2026, the Plaintiffs demonstrate that as of the date of these submissions, being 9/03/2026, the said Limuru Court remains completely non-functional. 14. On the legal propriety of the threshold objection, the Plaintiffs contend that a Preliminary Objection must strictly arise from undisputed facts and hold the potential to conclusively dispose of a suit without recourse to a full trial. To anchor this trite position, the Plaintiffs rely on the guidance of Justice F. Gikonyo in **In Re Estate of Letoya ole Lenjoki (Deceased) (Succession Cause 15 of 2017) [2024] KEHC 14334 (KLR)**, where the Court re-emphasized the traditional boundaries of a Preliminary Objection as a pure point of law arising by clear implication out of the pleadings which may single-handedly dispose of the suit. 15. Moving to the substantive question of territorial reach, the Plaintiffs challenge the Defendants' reliance on Section 15(c) of the Civil Procedure Act, Chapter 21 of the Laws of Kenya. They submit that the jurisdiction of the Environment and Land Court is directly birthed by Article 162(2)(b) of the Constitution of Kenya, as read with Sections 4 and 13 of the Environment and Land Court Act, establishing it as a superior Court of record with status equal to the High Court, exercising unlimited territorial jurisdiction over environmental and land matters anywhere across the Republic. This national judicial reach was explicitly re-affirmed in **Mwango & 5 Others v Maro & Another (Environment and Land Originating Summons E015 of 2025) [2025] KEELC 7033 (KLR)**, which clarified that the Court holds unlimited territorial competence over title, use, and occupation of land from any corner of the country. 16. Consequently, the Plaintiffs argue that statutory provisions cannot override the clear, constitutional architecture governing Superior Courts. Citing **Kanampiu & Another v Marithi (Civil Case E009 of 2023) [2025] KEHC 7699 (KLR)**, the Plaintiffs submit that while Section 15 of the Civil Procedure Act provides an administrative guide on the place of filing suits, it applies to subordinate Courts with strictly defined territorial boundaries and cannot be used to oust or restrict the nationwide constitutional jurisdiction of a Superior Court. Furthermore, drawing from the ratio decidendi in **Kassam & Another v Pearl Beach Hotels t/a English Point Marina (2022) KEHC 14132 (KLR)**, the Plaintiffs submit that the spirit of Section 15 is purely to safeguard Defendants from being severely burdened by litigating in distant, highly inconvenient forums, thereby facilitating an affordable and expedient resolution of claims. It was therefore incumbent upon the 1st and 2nd Defendants to place concrete material before this Court demonstrating either bad faith on the part of the Plaintiffs or proving that the Thika forum acts as an actual, severe impediment to their right of access to justice. 17. Thus, the Plaintiffs emphasize that the Defendants have completely failed to tender any such material demonstrating geographical prejudice, especially given that all parties and the subject matter reside within the larger Kiambu County. Noting that both the Plaint and the Preliminary Objection were filed long before the legal establishment of the Limuru Environment and Land Court, the Plaintiffs maintain that the suit was properly placed before a competent forum. Nonetheless, they concede that this Honourable Court retains the inherent jurisdiction to transfer the file to the Limuru Court solely for administrative convenience and case-backlog management once that station becomes fully functional. In the premises, the Plaintiffs humbly pray that the 1st and 2nd Defendants’ Preliminary Objection be dismissed with costs. **Analysis and Determination** 1. The Preliminary Objection dated 8/08/2025, raised by the 1st and 2nd Defendants, hinges fundamentally on whether a point of law can be deployed to terminate a suit at its threshold on account of local limits and geographical placement. Upon a meticulous review of the pleadings, the Replying Affidavit, the Supplementary Affidavit, and the extensive submissions of counsel, two distinct, yet inextricably intertwined key issues emerge for determination. The first overarching issue is: 2. Whether the 1st and 2nd Defendants' application meets the strict, immutable threshold of a pure Preliminary Objection, or whether it introduces contested factual and evidentiary inquiries that imperatively require testing at a full trial. 3. Whether the Environment and Land Court, sitting at Thika, is stripped of territorial or statutory jurisdiction to entertain a land dispute arising from Lari, Limuru Sub-County, by virtue of Sections 12 and 15 of the Civil Procedure Act (Cap. 21), particularly where a sister registry has been gazetted but remains functionally non-operational. 4. In evaluating the first issue, this Court must guard itself against the improper usage of Preliminary Objections to sneak in factual arguments through the back door. While the Defendants assert that their objection rests on pure law, their subsequent filing of a Supplementary Affidavit to introduce an independent valuation report of Kesh 12 million, directly contesting the Plaintiffs’ valuation of Kesh 27 million, fundamentally mutates the nature of their application. 5. By inviting the Court to weigh competing valuation reports, the Defendants have actively strayed from the realm of pure law into the thicket of contested facts. The Court of Appeal has frequently castigated this procedural slide, notably in the case of **Quick Advisory Services Limited v Kenya Standard Chartered Bank Kenya Limited [2022] KECA 384 (KLR)**, where the learned Judges of Appeal held: ***"A Preliminary Objection is not a passport to a summary trial before the main trial. Where a party seeks to rely on facts that are not agreed, or where the Court is invited to look at evidence outside the four corners of the pleadings to determine the point, then that is not a Preliminary Objection. It is a matter that must be ventilated in the ordinary course of litigation because a Court cannot try a matter on Affidavit evidence under the guise of a preliminary point of law."*** 1. Consequently, since the pecuniary valuation of the land is directly linked to the challenge under Section 4 of the Civil Procedure Act, and remains hotly disputed by competing expert annexures, the objection fails the foundational test of being founded on uncontroverted facts. 2. Turning to the substantive issue of territorial jurisdiction and the applicability of Sections 12 and 15 of the Civil Procedure Act to the Environment and Land Court, a profound legal misconception must be corrected. The Defendants argue that because the suit property lies in Lari, Limuru Sub-County, the Thika registry lacks the requisite territorial nexus. This line of argument completely ignores the unique, unified, and nationwide constitutional architecture of Kenya's specialized superior Courts. Unlike subordinate Courts whose territorial jurisdictions are strictly circumscribed by administrative boundaries under the Magistrates' Courts Act, the Environment and Land Court is a single, indivisible Court established pursuant to Article 162(2)(b) of the Constitution of Kenya with a mandate that flows throughout the length and breadth of the Republic. 3. The individual stations, such as Thika, Malindi, or Mombasa, are merely administrative arrangements or registries designed for judicial convenience, not separate legal entities with distinct sovereign borders. This critical distinction was articulated by the Court of Appeal in **County Government of Nyeri & Another v Cecilia Wanjiku Mwangi & 3 Others [2021] KECA 224 (KLR)**, where the Court pronounced itself verbatim: ***"The Environment and Land Court is a Court of nationwide jurisdiction. It is a single superior Court of record with status equal to the High Court. The distribution of its judges and the establishment of registries across the counties do not create distinct territorial Courts with autonomous jurisdictions. A judge sitting in any station of the Environment and Land Court is legally cloaked with the jurisdiction to hear and determine disputes concerning land situated anywhere within the borders of the Republic of Kenya. Section 15 of the Civil Procedure Act regulates the place of suing for administrative convenience; it does not, and cannot, divest a constitutional superior Court of its substantive jurisdiction."*** 1. Furthermore, the Defendants' heavy reliance on the doctrine of *forum non conveniens* and the subsequent gazettement of the Limuru Environment and Land Court under Gazette Notice Number 15210 of 22nd October 2025 cannot support the striking out of this suit. A suit must be judged based on the legal realities prevailing at the exact time of its filing. As a matter of fact, as of 20/05/2025, when the Plaintiffs moved this Court, the Thika station was the only functional and operational Environment and Land Court within the entire Kiambu County. Litigants cannot be accused of the vice of forum shopping for filing a suit in the only available and functional constitutional forum. To penalize the Plaintiffs for not filing their matter in a Court that was not yet created, or which remains non-functional as of 9/03/2026, would be a ludicrous subversion of Article 48 of the Constitution, which guarantees every person the right of access to justice. 2. This position is soundly backed by academic and professional literature. **Ouma**, S. 2010. in **Commentary on the Civil Procedure Act** **Cap 21. Law Africa Publishing (K) Ltd 2010**, notes that the rules governing the place of suing are shield mechanisms to prevent oppressive litigation, not swords to decapitate legitimate claims before they are heard. When a specialized Court is the sole functional station in a region, it retains the absolute judicial obligation to entertain the matter. If the presence of a newly gazetted but non-functional station at Limuru poses a question of administrative efficiency, the remedy is never the draconian measure of striking out the Plaint. Striking out a pleading is a remedy of the last resort, reserved exclusively for actions that are notoriously hopeless or incurably defective. Where a registry issue arises, the proper course of action is an administrative transfer of the file. 3. This judicial philosophy is derived from Section 1A and 1B of the Civil Procedure Act, which mandates Courts to facilitate the just, expeditious, proportionate, and affordable resolution of civil disputes. Dismissing a suit over registry locations, only to force the Plaintiffs to refile the exact same claim, pay fresh Court fees, and re-serve the parties, flies directly in the face of the overriding objective. As the Supreme Court of Kenya aptly observed in **Amos Kimunya & Another v National Land Commission & Others [2024] KESC 45 (KLR)**: ***"Courts must look at procedural challenges through the lens of substantive justice. Registry locations and the internal administrative organization of the Judiciary must never be deployed as procedural traps to defeat the fundamental right of access to justice, particularly where a specialized Court holds the clear constitutional mandate over the subject matter."*** 1. Consequent upon these findings, this Court holds that the Thika Environment and Land Court has full substantive and territorial jurisdiction to hear the matter and the 1st and 2nd Defendants' Preliminary Objection dated 8/08/2025 is legally unmerited and unsustainable and is hereby dismissed with costs to the Plaintiff. 2. Orders Accordingly. **DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT THIKA ON THIS 13TH DAY OF JULY 2026.** **…………………….** **MOGENI J** **JUDGE** **In the presence of:** ………………………………………… for the Plaintiffs/Respondents ………………………………………… for 1st and 2nd Defendants/Applicants …………………………………………. for 3rd Defendants Mr. Melita - Court Assistant **…………………..** **MOGENI J** **JUDGE**