https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3042

Mugo & another v Kendia (Miscellaneous Application E003 of 2026) [2026] KEELC 3042 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3042 (KLR) Republic of Kenya In the Environment and Land Court at Embu Miscellaneous Application E003 of 2026 EC Cherono, J May 21, 2026 Between Martin Njiru Mugo 1st Applicant Erick Schwilrez 2nd Applicant and Bernard Nyaga Kendia Respondent Ruling 1.Before this Court is a Notice of Motion Application filed under Certificate of Urgency dated 4th February 2026, brought by the Applicants against the Respondent, seeking orders of status quo and injunction restraining the Respondent from evicting or removing the Applicants from land parcel No. Evurore/Nthambu/2648, pending the hearing and determination of this Application and pending the determination of Embu High Court Criminal Appeal Case No. E054 of 2025. 2.The Application is supported by the Applicant's affidavit and grounds set out in the motion. The Respondent filed a Replying Affidavit sworn on 14th February 2026. Both parties filed written submissions. I have considered the Application, the affidavits, the submissions and the law. 3.The threshold question in any proceedings is whether the court is properly seized of jurisdiction. As the Supreme Court of Kenya held in Samuel Kamau Macharia & Another v Kenya Commercial Bank & 2 Others [2012] eKLR, a court's jurisdiction flows from either the Constitution or statute, and if a court has no jurisdiction, it must down its tools in limine. The question of jurisdiction must therefore be resolved first before any consideration of the merits. 4.The Respondent has raised a jurisdictional objection on two grounds: first, that the suit property is situate within the territorial limits of the Environment and Land Court (ELC) at Siakago in Mbeere North Sub-County; and second, that the property is valued below Kshs. 20,000,000/= and therefore falls within the pecuniary jurisdiction of the ELC at Siakago. 5.The Applicants counter that this Court is vested with original jurisdiction over all land matters under Section 13 of the Environment and Land Court Act and that the subject matter is land within the territorial jurisdiction of this Court. 6.The Environment and Land Court is a superior court of record established under Article 162(2)(b) of the Constitution of Kenya, 2010 and Section 4 of the Environment and Land Court Act (No. 19 of 2011). Section 13 of that Act confers upon the Court jurisdiction to hear and determine disputes relating to, inter alia, land, the environment, land use and planning, and title. However, this jurisdiction is not unlimited in its geographic scope. 7.12 of the Civil Procedure Act, Cap 21 Laws of Kenya is explicit on the point: suits concerning immovable property shall be instituted in the court within whose local limits the property is situated. This is a foundational rule of civil procedure that ensures disputes are determined by a court with proximate knowledge and access to evidence, and that parties are not subjected to inconvenience and expense attendant upon distant litigation. 8.The Applicants have not disputed that land parcel No. Evurore/Nthambu/2648 is situate within Mbeere North Sub-County, which falls within the territorial jurisdiction of the Environment and Land Court at Siakago. The Respondent has produced a title deed (annexure BK-1) showing the land registration area as Evurore/Nthambu, which registry is administered from Siakago. The Applicants' own pleadings reference criminal proceedings in Siakago, reinforcing that the land is in that locality. 9.The Applicants' submission that this Court has jurisdiction over all land matters under Section 13 of the ELC Act conflates subject-matter jurisdiction with territorial jurisdiction. Section 13 confers jurisdiction in rem over categories of disputes — it does not override the territorial limits within which that jurisdiction is exercised. Different stations of the ELC are gazetted under the Environment and Land Court (Establishment of Stations) Order to serve designated geographical areas. Permitting applicants to by-pass the court designated for their area would render the territorial allocation nugatory and constitute impermissible forum shopping. 10.The Respondent has squarely averred, and the Applicants have not rebutted, that the suit property falls within the Siakago station's area of jurisdiction. It is telling that the Applicants have not provided any explanation for why this matter was filed in Embu rather than Siakago, other than the bare and legally untenable submission that jurisdiction is general under Section 13. 11.This Court accordingly finds that it lacks territorial jurisdiction to entertain this Application. The appropriate forum for this dispute is the Environment and Land Court at Siakago. 12.Given my finding above that this Court lacks territorial jurisdiction, it is strictly unnecessary to determine the merits of the injunction application. However, in the event that I am wrong on the jurisdictional issue, or on appeal, I make the following brief observations in the interest of completeness. 13.The governing principles for the grant of a temporary injunction in Kenya are those laid down in Giella v Cassman Brown & Co. Ltd [1973] EA 358, as refined by subsequent Kenyan jurisprudence. An applicant must demonstrate: (i) a prima facie case with a probability of success; (ii) that the applicant will suffer irreparable harm not compensable by an award of damages if the injunction is not granted; and (iii) if the Court is in doubt as to (i) and (ii), that the balance of convenience favours the grant of the injunction. 14.On a prima facie case: The Applicants assert long occupation of the suit land since childhood and allege that the Respondent fraudulently acquired registration in 2018 through a sub-division of their land by a third party (their uncle). They also rely on a pending criminal appeal against a conviction for forcible detainer. The Respondent holds a registered title deed and avers that registration was lawful and procedural. 15.The criminal appeal pending in Embu High Court Criminal Appeal No. E054 of 2025 is a proceeding in criminal law, concerned with the criminal liability of the Applicants for the offence of forcible detainer under Section 91 of the Penal Code. A pending criminal appeal neither creates nor extinguishes proprietary or possessory rights over land. Criminal and civil jurisdictions operate on distinct tracks: a conviction for forcible detainer does not determine title, just as an acquittal would not vest title in the accused. The Respondent's Counsel correctly identifies this distinction. The Applicants cannot shield a civil land claim under the cover of a pending criminal appeal without more. 16.That said, the Applicants' allegations of fraudulent registration — if capable of being substantiated with evidence — could disclose a cause of action warranting investigation in civil proceedings under the Land Registration Act (Cap. 300). The Applicants ought to file a substantive suit to challenge the Respondent's title, which suit could be accompanied by an application for conservatory or injunctive orders. Such a suit, however, must be filed in the court of competent territorial jurisdiction — the ELC at Siakago. 17.On irreparable harm: The Applicants stand to suffer the loss of their home and land if evicted pending determination of any substantive challenge to the Respondent's title. Eviction from land that one has occupied for decades can, in many circumstances, cause harm that is difficult to remedy by an award of damages alone — particularly where the land contains a family home, graves and the infrastructure of a lifetime. To this extent, the Applicants' position has equitable sympathy, provided that they file the appropriate proceedings in the right court without delay. 18.On the balance of convenience: This consideration is less relevant given the fundamental jurisdictional defect, but it would weigh in favour of preserving the status quo pending a proper determination of the title dispute — again, in the proper forum. 19.Nothing in these observations should be construed as a finding on the merits of the parties' competing claims to the land. Those are matters for the ELC at Siakago to determine in properly constituted civil proceedings. Orders 20.For the foregoing reasons, this Court makes the following Orders:1.The Application dated 4th February 2026 is hereby struck out for want of territorial jurisdiction.2.The Applicants are at liberty to file fresh proceedings in the Environment and Land Court at Siakago, which is the court of competent territorial jurisdiction in respect of land parcel No. Evurore/Nthambu/2648.3.Should the Applicants file such proceedings promptly and seek conservatory or injunctive orders therein, the court at Siakago will consider such application on its merits in accordance with the applicable principles.4.Costs of this Application shall be in the cause in the substantive proceedings to be filed before the ELC at Siakago. Should the Applicants fail to file substantive proceedings within 60 days of this Ruling, the Respondent shall be at liberty to apply for costs. DATED, DELIVERED AND SIGNED AT EMBU THIS 21ST DAY OF MAY, 2026.HON. E.C CHERONOELC JUDGE, EMBUIn the presence of;1. Applicant/Advocate-absent2. Respondent/Adocate-absent3. M/S Ruth C/A