[2025] KEHC 3745 (KLR)

Muli v Mbuli & another (Civil Case E135 of 2024) [2025] KEHC 3745 (KLR) (Civ) (26 March 2025) (Ruling)

Neutral citation: [2025] KEHC 3745 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case E135 of 2024

LP Kassan, J

March 26, 2025

Between

Augustus Kyalo Muli

Plaintiff

and

Beatrice Mbuli

1st Defendant

Jepha Limited

2nd Defendant

Ruling

1. Through the Plaint dated 9th July 2024 the plaintiff seeks orders for:a.Special damages as follows:i.Expenditure incurred to procure commercial materials in the sum of USD 234,000/=.ii.Expenditure incurred in making improvements on the premises in the sum of Kshs 1,059,902/=.iii.Cost of evicting the previous tenant in the sum of Kshs 1,500,000/=.b.A refund of Kshs 1,800,000/= unutilized rent.c.General damages for breach of contract.d.Costs of this suit together with interest thereon at such rate and for such period of time as this court may deem fit to grant.e.Any such other or further relief as this court may deem appropriate.

2. In response to the Plaintiff’s suit, the Defendant raised a preliminary objection dated 17. 09. 2024 seeking to have the suit dismissed in its entirety and citing the following grounds:-1. The subject matter of the suit is the enforcement of the terms and rights of a Lease Agreement dated 1st November 2023, concerning Property known as Land Reference 2327/32 Bogani Lane, Karen.2. Article 165(5)(b) of the Constitution of Kenya, 2010, precludes the High Court from handling matters that fall within the jurisdiction of the Environment and Land Court (ELC).3. Section 13(2)(e) of the Environment and Land Court Act vests the ELC with original and exclusive jurisdiction to hear and determine disputes relating to environment and land.4. Article 162(2)(b) of the Constitution establishes the ELC as the only court with original and exclusive jurisdiction to determine disputes relating to the environment, use, occupation, and title to land.5. Section 150 of the Land Act, 2012, grants the ELC exclusive jurisdiction to hear and determine disputes concerning land under the Land Act.6. The claim should be struck out for want of jurisdiction, with costs awarded to the Defendants.

3. The preliminary objection was canvassed by written submissions which this court has considered.

4. The Defendants' submissions, dated 18th November 2024, support the Preliminary Objection and argue the following: first jurisdiction of the Environment and Land Court. The Defendants rely on Article 162(2)(b) and Article 165(5)(b) of the Constitution, which establish the ELC as the court with exclusive jurisdiction over disputes relating to land, environment, and occupation. They also cite Section 13(2)(e) of the Environment and Land Court Act and Section 150 of the Land Act, 2012, which reinforce the ELC's jurisdiction over land-related disputes. Second, The Defendants argue that the Preliminary Objection meets the threshold set in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA, as it raises a pure point of law that, if successful, would dispose of the suit. They also reference Oraro v Mbaja (2005) 1 KLR 141, Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others (2014) eKLR, and Philip Kitoto & Another v Simon Kuria Wanyoike & Another (2022) eKLR, which define a Preliminary Objection as a point of law that can dispose of the suit if argued successfully. Third, the Defendants assert that the suit relates to the enforcement of a lease agreement, which is a dispute over the use and occupation of land. They argue that such disputes fall squarely within the jurisdiction of the ELC, and the High Court lacks jurisdiction to hear the matter. They rely on Paul Mwai & another v John Muiruri (2020) eKLR and Amina Mohamed Harith v Chakama Ranching Company Limited & 5 others (2023) KEHC 1572 (KLR), where courts held that disputes involving land use, occupation, and title must be heard by the ELC. In conclusion, the Defendants pray that the court dismisses the suit for lack of jurisdiction and awards costs to them.

5. The Plaintiff, Augustus Kyalo Muli, filed written submissions on 11. 12. 2024, opposing the Preliminary Objection. The Plaintiff argues the following: first, the Plaintiff contends that the suit does not relate to land use or occupation but rather seeks recovery of damages for the unlawful termination of a lease agreement. The Plaintiff argues that there is no longer a landlord-tenant relationship, and the suit is for damages, not specific performance of the lease. Second, the Plaintiff relies on Nandlal Jivraj Shah & 2 others v Kingfisher Properties Limited (2015) eKLR, where the Court of Appeal held that the High Court has jurisdiction to entertain eviction proceedings where there is no longer a landlord-tenant relationship. The Plaintiff also cites Omwere v Momanyi & 2 others (2023) KEHC 26931 (KLR), where the court held that a tenancy agreement does not equate to the use of land, and Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 Others (2017) eKLR, which held that matters involving mortgages, charges, and collection of dues fall within the civil jurisdiction of the High Court. In conclusion, the Plaintiff submits that the Preliminary Objection is unmerited and should be dismissed, allowing the suit to proceed on its merits.

6. I have considered the preliminary objection together with the parties’ submissions. the main issue for determination is whether the preliminary objection was merited. The central issue in this case is whether the High Court has jurisdiction to hear a dispute arising from the termination of a lease agreement, or whether such a dispute falls within the exclusive jurisdiction of the Environment and Land Court (ELC).

7. What amounts to a preliminary objection was discussed in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA, the court held that a Preliminary Objection must raise a pure point of law that can dispose of the suit. The Defendants' objection meets this threshold as it challenges the court's jurisdiction.

8. The defendant challenged the jurisdiction of this court while stating that the dispute concerns landlord/tenant relationship and the right to the use and occupation of land.

9. It is trite that the issue of jurisdiction should to be determined at the earliest time possible. In Owners of the Motor Vessel ‘Lillian ”(S) versus Caltex Oil (Kenya) Ltd [1989] KLR1, it was held as follows:-“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court had 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. ………..“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court had cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristic. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”

10. Article 162(2)(b) of the Constitution establishes the ELC to hear disputes relating to the environment, use, occupation, and title to land.

11. Article 165(5)(b) of the Constitution explicitly states that the High Court shall not have jurisdiction over matters falling within the jurisdiction of the ELC.

12. Section 13(2)(e) of the Environment and Land Court Act grants the ELC jurisdiction over disputes relating to land, including leases, tenancies, and contracts involving land.

13. Section 150 of the Land Act, 2012, reinforces the ELC's jurisdiction over land-related disputes.

14. In Suzanne Butler & 4 Others v Redhill Investments & Another (2017) eKLR 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."

15. In line with the court in the Suzanne Butler case supra, in the case of Amina Mohamed Harith v Chakama Ranching Company Limited & 5 others (2023) KEHC 1572 (KLR), the court applied the "predominant purpose test" to determine whether a dispute primarily concerns land. If the predominant purpose of the transaction is land-related, the ELC has jurisdiction.

16. In the case of Paul Mwai & another v John Muiruri (2020) eKLR, the court held that disputes involving land use, occupation, and title must be heard by the ELC. The court emphasized that the High Court cannot usurp the jurisdiction of the ELC.

17. The Plaintiff's suit arises from the termination of a lease agreement concerning Land Reference 2327/32 Bogani Lane, Karen. While the Plaintiff argues that the suit is for damages and not specific performance, the underlying dispute is fundamentally about the use and occupation of land.

18. The lease agreement is a contract involving land, and its termination directly affects the Plaintiff's rights to occupy and use the property. This places the dispute within the jurisdiction of the ELC, as held in Paul Mwai & another v John Muiruri (2020) eKLR and Amina Mohamed Harith v Chakama Ranching Company Limited & 5 others (2023) KEHC 1572 (KLR).

19. The Plaintiff's reliance on the case of Nandlal Jivraj Shah & 2 others v Kingfisher Properties Limited (2015) eKLR is misplaced, as that case involved eviction proceedings where the landlord-tenant relationship had already ended. In the present case, the dispute is still tied to the lease agreement and the use of land.

20. The Preliminary Objection raised by the Defendants is merited. The dispute in this case relates to the use and occupation of land, which falls within the exclusive jurisdiction of the Environment and Land Court. The High Court lacks jurisdiction to hear this matter, and the suit should be struck out with costs awarded to the Defendants.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 26THDAY OF MARCH 2025. HON. L. KASSANJUDGEIn the presence of;Mutuka holding brief Mwalimu for Plaintiff for the AppellantOseko holding brief Nyakundi for hearing for the RespondentCarol – Court Assistant