https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12388

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **HCCOMM NO. 330 OF 2016** **SELESTINA ANN MBII………………………………………….PLAINTIFF** **VERSUS** **SUSAN WAMBUI MURUGA aka** **ANN WAMBUGU NG’ANG’A………………………………….DEFENDANT** **RULING** 1. The Defendant raised a Notice of Preliminary Objection dated 30th January 2026 on the following grounds: 2. *That the court lacks jurisdiction to hear and determine the matter on the grounds that the cause of action is based on an alleged sale agreement dated 1st September 2015 executed by the Plaintiff and Susan Wambui Muruga in respect of an alleged land known as plot no 44 original number 94 situated at Utawala Embakasi.* 3. *That the dispute falls within the jurisdiction of the Environment and Land Court as it concerns the execution and validity of the said sale agreement; that since the claim is for Kshs. 6,000,000/=,* 4. *The matter ought to be remitted to the Magistrates' Court, Environment and Land Division;* 5. *That the suit ought to be struck out.* 6. The Plaintiff opposed the objection by Grounds of Opposition dated 24th February 2026. It is contended that the objection is belated, having been raised after the hearing had concluded and the matter only awaits judgment. The Plaintiff maintains that the suit is not one concerning title to, use or occupation of land, but rather one founded on the fraudulent acquisition of Kshs. 6,000,000/=. It is further argued that this Court is clothed with unlimited original jurisdiction in civil matters under Article 165(3) of the Constitution, and that Article 162(2)(b) is inapplicable to the present dispute. 7. Learned counsel for the Defendant, Ms. Naliaka, submitted that the Plaint seeks, among other reliefs, a declaration that the sale agreement dated 1st September 2015 is void for fraud together with a refund of the purchase price. Counsel argued that because the Defendant disputes the validity of the sale agreement, the dispute is fundamentally one relating to land and therefore falls within the exclusive jurisdiction of the Environment and Land Court. She submitted that jurisdiction is everything and that a preliminary objection on jurisdiction may be raised at any stage before judgment. Counsel explained that her firm came on record on 28th January 2026 and, upon examining the pleadings, promptly raised the objection. She urged the Court to down its tools and strike out the suit. 8. Opposing the objection, learned counsel for the Plaintiff, Mr. Mung’ata, submitted that the Defendant had submitted to the jurisdiction of this Court and raised the objection only after the close of the hearing, as a means of delaying the delivery of judgment. He argued that the principal relief sought is a refund of the monies paid to the Defendant, while the claim for general damages for loss of investment opportunity is a monetary claim whose assessment falls within this Court’s jurisdiction. He further submitted that the dispute is not about ownership, title or occupation of land but is essentially a claim for recovery of money allegedly obtained through fraud. He therefore urged the Court to dismiss the preliminary objection as an abuse of the court process. **Analysis and determination** 1. The sole issue for determination is whether this Court lacks jurisdiction to hear and determine the suit, or whether the same falls within the exclusive jurisdiction and determination of the Environment and Land Court. 2. Before addressing the substance of the objection, I must first address the Plaintiff’s contention that the objection is belated and incompetent, having been raised after the close of the hearing. A challenge to a court’s jurisdiction may be raised at any stage of the proceedings, even on appeal, and cannot be cured by the consent or acquiescence of the parties. 3. Jurisdiction is the fountain from which all judicial authority flows. Without it, a court has no power to take a single further step. As Nyarangi JA famously stated in **Owners of the Motor Vessel “Lilian S” v. Caltex Oil (Kenya) Ltd [1989] KLR 1:** **“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 tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”** 1. The mere fact that the hearing has concluded and the matter awaits judgment does not bar this Court from inquiring into its own jurisdiction. If the court lacks jurisdiction, any judgment it would deliver would be a nullity, *ab initio*. I therefore find that the preliminary objection is properly before the Court and must be determined on its merits. 2. In **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696**, Law JA stated: ***“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 of the suit.”*** 1. Jurisdiction is undoubtedly a pure point of law and may be raised at any stage of the proceedings. The question, therefore, is whether the present dispute falls within the exclusive jurisdiction of the Environment and Land Court established under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. 2. **Article 162(2)(b) and (3)** of the **Constitution** provides: ***(2) Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—*** ***(a)… (b) 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. Pursuant to Article 162(3), Parliament enacted the ELC Act, which outlines the jurisdiction of the Environment and Land Court**. Section 13** thereof provides as follows: ***(1) The Court shall have original and appellate jurisdiction to hear and 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 its jurisdiction under Article 162(2)(b) of the Constitution, the Court 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 the 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.*** 1. In determining whether a court has jurisdiction, the court is called upon to ascertain the real cause of action *vis-à-vis* the statutory provisions established in the case of **Suzanne Achieng Butler & 4 Others vs Redhill Heights Investments Limited & Another [2016] eKLR,** where the Court held that: ***“When faced with a controversy whether a particular case is a dispute about land (which should be litigated at the ELC) or not, the Courts utilize the Pre-dominant Purpose Test: In a transaction involving both a sale of land and other services or goods; jurisdiction lies at the ELC if the transaction is predominantly for land, but the High Court has jurisdiction if the transaction is predominantly for the provision of goods, construction, or works. The Court must first determine whether the pre-dominant purpose of the transaction is the sale of land or construction. Whether the High Court or the ELC has jurisdiction hinges on the predominant purpose of the transaction, that is, whether the contract primarily concerns the sale of land or, in this case, the construction of a townhouse. Ordinarily, the pleadings give the Court sufficient glimpse to examine the transaction to determine whether sale of land or other services was the predominant purpose of the contract. This test accords with what other Courts have done and therefore lends predictability to the issue.”*** 1. Therefore, the court shall apply the predominant purpose test in identifying whether the issue in dispute falls within the jurisdiction of this court or the Environment and Land Court. 2. From a cursory look at the facts pleaded in the plaint and the reliefs sought, it is evident that although reference is made to a sale agreement relating to land, the Plaintiff's principal complaint is that the Defendant fraudulently obtained Kshs. 6,000,000/= from the Plaintiff. The substantive relief sought is a refund of the purchase price, together with damages for the alleged loss of an investment opportunity. The prayer seeking a declaration that the agreement is void is merely incidental to the monetary claim. 3. The Court is not being invited to determine competing claims of ownership, title, possession, occupation or boundaries relating to the suit property. Neither is it called upon to pronounce itself on any proprietary interest in land. Rather, the Court is called upon to determine whether the Defendant fraudulently received the Plaintiff's money and whether the Plaintiff is entitled to restitution and damages. The mere fact that the transaction arose from a land sale agreement does not, without more, convert the dispute into one falling exclusively within the jurisdiction of the Environment and Land Court. 4. It is trite that the jurisdiction of the specialized courts is determined by the nature of the dispute placed before them. Where the dominant issue does not concern title to, use of, or occupation of land, the mere reference to land in the transaction does not automatically oust the jurisdiction of the High Court. 5. I also find no merit in the Defendant's submission that the matter ought to be remitted to the Magistrates' Court. First, the Plaintiff has pleaded not only a liquidated claim of Kshs. 6,000,000/= but also general damages for loss of investment opportunity, the assessment of which remains at the Court's discretion. Secondly, the issue before this Court is not one of pecuniary jurisdiction but whether this Court lacks constitutional jurisdiction altogether. Having found that the dispute falls within the High Court's civil jurisdiction under Article 165(3) of the Constitution, that argument cannot stand. 6. In the result, I find that the Defendant's Notice of Preliminary Objection dated 30th January 2026 is without merit and is hereby dismissed with costs to the Plaintiff. It is so ordered. **RULING** delivered virtually, dated and signed at **NAIROBI** This **31st** day of **July** 2026. **PETER M. MULWA** **JUDGE** **In the presence of:** *Mr. Mung’ata* for Plaintiff/Respondent *Ms. Naliaka* for Defendant/Applicatnt Court Assistant*: Lispa*