https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4486

Meli v State Law & 3 others (Environment and Land Petition E009 of 2024) [2026] KEELC 4486 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KEELC 4486 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Environment and Land Petition E009 of 2024 A Ombwayo, J July 10, 2026 IN THE ENVIRONMENT AND LAND COURT OF KENYA AT MOMBASA COUNTY COURT NAME: MOMBASA ENVIRONMENT AND LAND COURT Between Shadia Mohamed Kipkorir Meli Petitioner and State Law 1st Respondent Chief Land Registrar Nairobi & 2 others & 2 others 2nd Respondent Ruling 1.Shadia Mohammed Kipkorir Meli, the Petitioner herein has brought a petition against the 1st to 5th Respondent vide a petition dated 9th April 2024. In the petition, she seeks a declaration to have the charge dated 17th April, 2021 and registered on 10th November, 2021 declared null and void for want of spousal consent. 2.She also seeks a declaration to the effect that her share in C.R 62863/1(Apartment No. 5, 5th Floor On Sub-division Number 16900) Original Number 8822/3 Section 1 Mainland North is not subject to the alienation under the charge dated 17th April 2021. 3.Further, she seeks a declaration that the Respondents have violated her right to property enshrined under Article 40 of the constitution and the right to fair administrative action enshrined under Article 47 of the Constitution. 4.Additionally, a declaration that the 1st Respondents action resulting to cancellation of the caution dated 28th May 2021 and registered on 31st May 2021 together with the registration of charge dated 17th April 2021, registered on 10th November 2021, without notice and being afforded the right to be heard and without following the due process set out by the law contravened her right to fair administrative action enshrined under Article 47 of the constitution and contravened her right to property enshrined under Article 40 of the Constitution. 5.Further, a declaration that the 1st Respondents actions and/or decisions resulting to the cancellation and/or removal of the caution dated 28th May 2021 Against C.R 62863/1(Apartment No. 5, 5th Floor On Sub-division Number 16900) Original Number 8822/3 Section 1 Mainland North was unlawful and hereby declared void ab initio. 6.A declaration that the 1st Respondents actions and/or decisions resulting to the opening of a new register and/or parcel file in respect to C.R 62863/1 (APartment No. 5, 5th Floor On Sub-division Number 16900) Original Number 8822/3 Section 1 Mainland North and entries made subsequently in favor of the 3rd Respondent was unlawful and hereby declared null and void ab initio. 7.An order of Certiorari to remove into the court for the purpose of its being quashed the decision by the Land Registrar, Mombasa procuring the opening of a new register and or parcel file for C.R 62863/1 (APartment No. 5, 5th Floor On Sub-division Number 16900) Original Number 8822/3 Section 1 Mainland North, the omission, removal and/or cancellation of the caution registered on 31st May 2021 in favor of the Petitioner and the registration of the charge dated 17th April in favor of the 3rd Respondent. 8.An Order of Mandamus compelling the Land Registrar, Mombasa to make an entry in favor of the petitioner, declaring her interest in the property on account of matrimonial property known as C.R 62863/1(Apartment No. 5, 5th Floor On Sub-division Number 16900) Original Number 8822/3 Section 1 Mainland North 9.Issuance of an order of Inhibition pursuant to section 68 of the Land Registration Act inhibiting registration of any dealings including sale, charge, lease and/or any other, whatsoever in respect to parcel No. C.R 62863/1(Apartment No. 5, 5th Floor On Sub- Division Number 16900) Original Number 8822/3 Section 1 Mainland North without the express written consent of the petitioner. 10.Lastly, compensation and/or general damages for breach of the petitioners right to property and the right to fair administrative action 11.Costs for the petition. 12.The 4th Respondent raised a Preliminary Objection dated 25th September 2024 bearing the following grounds;1.That this court lacks jurisdiction to entertain the Petition as the Petitioner lacks locus standi to institute a constitutional Petition as her interest in the suit property was conclusively determined by the Kadhi’s Court Petition No.184 of 2021 where her proprietary rights were declined.2.That the Petition offends the doctrines of res judicata under section 7 of the Civil Procedure Act and sub judice under section 6 of the Civil Procedure Act as the Petitioners right to the suit property were substantially litigated in Kadhis Court Petition No. 184 of 2021 and are currently pending before High Court in Family Appeal No. E030 of 2022, between the same parties and over the same subject matter, hence the Petition is barred in law.3.That the Petition is a gross abuse of the Court Process as it seeks to constitutionalize a private matrimonial property dispute governed by the Matrimonial Property Act No. 49 of 2013. The Petitioner is improperly invoking the constitutional jurisdiction of this court as an appellate forum over family matters, contrary to the settled precedent such as Benard Murange v Fineserve Africa Ltd & 3 Others [2015] eKLR which emphasized that Constitutional Petitions should not bypass statutory remedies.4.That the Petition discloses no reasonable cause of Action against the 4th Respondent. The allegations of Fraud and forgery are criminal in nature and remain unproven in any court of competent jurisdiction. The Petition fails to demonstrate any direct actions by the 4th Respondent that violated the Petitioners constitutional Rights, contrary to the threshold laid down in Anarita Karimi Njeru v Republic [1797]eKLR and reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR.5.That the Petition offends the doctrine of exhaustion of remedies, as the Petitioner has failed to pursue and conclude the alternative dispute resolution and appellate process already available to her particularly the pending Family Appeal No. E30 of 2022. The court of Appeal in Geoffrey Muthinja & Another v Samuel Muguna & Another [2015] eKLR held that parties must exhaust other remedies before approaching a constitutional court.6.That the Petition raises contested and unproven factual issues such as allegations of forgery, fraud, and conspiracy that require rigorous testing by viva voce evidence in a full trial. Such issues are not suitable for determination in a constitutional petition which is reserved for the vindication of clear and undisputed constitutional violation. 13.As a response, the Petitioner raised grounds of opposition dated 11th November 2025 where she argues that:a.The Notice of preliminary objection by the 4th Respondent does not raise pure points of law as required for a Preliminary Objection.b.She avers that the grounds raised require the court to investigate and evaluate factual matters.c.Further, she alleges that this honorable court already pronounced itself on similar issues in the instant proceedings vide a Ruling delivered on 2nd October 2024 regarding the Preliminary Objection by the 3rd and 5th Respondents where the court held matters of evidentiary interrogation cannot be determined through a preliminary objection.d.She argues that the grounds raised by the 4th Respondent are similar in substance to those previously dismissed by this honorable court. Therefore, the Preliminary Objection is without merit and should be dismissed with costs. 4th Respondents Submissions 14.Counsel for the 4th Respondent argues that the Petitioner’s case was judicially negated by the Kadhi Court that declined to recognize proprietary interest in her favor and as such she cannot invoke Article 40 of the constitution. 15.Counsel argues that Section 6 and 7 codifies the doctrines of Sub Judice and Res Judicata respectively. The Khadhi’s court already determined the issue of ownership and spousal interest in Petition No. 184 of 2021 and an Appeal has already been lodged by the Petitioner being Family Appeal No. E030 of 2022 which remains pending. Counsel argues that the matters are similar and cannot be litigated concurrently before different fora. 16.According to Counsel, the Petitioner has failed to exhaust mechanisms provided for under Sections 73 and 80 of the land Registration Act to challenge the removal of her caution, additionally the petitioner has already invoked appellate jurisdiction in the family court arising from the Kadhi’s court. He cites the case of Geoffrey Muthinja & Another v Samuel Muguna Henry and 1756 others [2015] eKLR where the court of appeal held that where parliament has provided adequate statutory mechanisms for redress, litigants ought to exhaust those remedies before invoking constitutional jurisdiction. 17.Lastly counsel for the respondent submits that the allegations made by the Petitioner are unsubstantiated. They remain speculative and unproven; therefore, the petition fails to meet the threshold in Anarita Karimi Njeru v Republic [1979] eKLR which requires constitutional pleadings to be precise and particularized to the nature of the right violated. , Petitioners Submissions 18.Counsel for the Petitioner submits that none of the grounds raised by the 4th Respondent in the Notice of Preliminary objection amounts to a pure point of law. Counsel opines that each ground requires factual interrogation, evaluation of evidence and examination of circumstances. Counsel cites on the case of Mukisa Biscuits Manufacturing Co. v West End Distributors Ltd [1969] EA 696. 19.Further, counsel submits that the court has already determined similar objections in the instant proceedings. In its ruling delivered on 2nd October 2024, regarding the preliminary objection filed by the 3rd and 5th respondents where the court stated, issues requiring factual proof cannot be raised as a preliminary point of law and the reasoning applies to the present objection. Analysis And Determination 20.The issue for determination is whether there is a legal basis for upholding the Preliminary Objection raised by the 4th Defendant. 21.The classical authority on preliminary objections is Mukisa Biscuit Co. Ltd v West End Distributors Ltd [1969] E.A. 696, where the Court stated: 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 the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion." 22.A preliminary objection must therefore be founded on a pure point of law and must not require the court to ascertain disputed facts or evaluate evidence. 23.Amongst the issues raised in the Preliminary Objection by the 4th Respondent is jurisdiction. It is trite that jurisdiction is everything, and without it a court must down its tools. A court derives its jurisdiction from the Constitution, legislation, or both. This Court specifically derives its jurisdiction from Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. 24.Article 162(2)(b) of the Constitution mandates Parliament to establish a court with exclusive jurisdiction to hear and determine disputes relating to the environment and the use, occupation and title to land.Consequently, Section 13 of the Environment and Land Court Act provides, 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 enforceable interests in land; ande.any other dispute relating to the environment and land. 25.The Petitioner seeks relief under, Article 40 of the Constitution among other provisions, which, the 4th Respondent argues that it extends only to lawfully acquired property. The Petitioner contends that she acquired an interest in the suit property during the subsistence of her marriage to the 4th Respondent. She alleges that the 4th Respondent, in collusion with the 1st and 4th Respondents, unlawfully procured the removal of the caution registered against the title to the suit property. The 1st Respondent has proceeded to register a charge over the 3rd Respondent without her knowledge. What the Petitioner seeks in the instant Petition is a declaration that her right to property under Article 40 of the constitution has been infringed and further seeks orders compelling the 1st Respondent to rectify the register and restore the caution. 26.The dominant issue in the Petition concerns the title to and interests in land. The dispute therefore falls squarely within the jurisdiction of the Environment and Land Court as contemplated under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. Accordingly, the Court finds that grounds 2, 3 and 5 of the Preliminary Objection, which challenge this Court's jurisdiction, are without merit and are hereby dismissed. 27.With regard to the grounds 2,4 and 6 of the Preliminary objection, based on res judicata, sub judice, and the contention that the Petition discloses no reasonable cause of action. The Court finds that these issues cannot be determined as preliminary objections. Their determination would require the Court to examine factual evidence, including the pleadings, proceedings and decisions in the alleged previous suits, to ascertain whether the matters in issue were directly and substantially in issue and finally determined, or whether the pending proceedings before the High Court concern the same subject matter and parties. 28.Similarly, the allegations of fraud cannot be resolved without the benefit of evidence, as fraud is a question of fact that must not only be specifically pleaded but also strictly proved. 29.The issues raised under grounds 2, 4 and 6 of the Preliminary Objection are not pure points of law. They are contested matters whose determination depends upon the evaluation of evidence and are therefore unsuitable for determination by way of a preliminary objection as contemplated in Mukisa Biscuit Co. Ltd v West End Distributors Ltd [1969] E.A. 696. 30.The court therefore finds that the Preliminary Objection dated 25th September is without merit and is dismissed with costs. SIGNED BY/FOR:HON. JUSTICE ANTONY O. OMBWAYOMOMBASA ENVIRONMENT AND LAND COURTENVIRONMENT AND LAND COURT DATE: 2026-07-10 12:15:36