https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4626

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC CASE NO.101 OF 2025** **PITHOM INVESTMENTS LIMITED ………………………....………. PLAINTIFF** **VERSUS** **RUKEMA INVESTMENTS & CONSTRUCTION** **COMPANY LIMITED …………………..........…………………… 1ST DEFENDANT** **PHARES MUIGAI THUMBI ……………............………………. 2ND DEFENDANT** **BETA HOME PROPERTIES LIMITED ……..........…...…….. 3RD DEFENDANT** **RULING** 1. The Plaintiff filed a Notice of Motion dated 5th June 2025 seeking inter alia an order of temporary injunction to restrain the Defendants from trespassing onto, remaining or continuing to remain in occupation of land title number KABETE/KIBICHIKO/2330 and to vacate and deliver vacant possession thereof to the plaintiff. 2. The Plaintiff also sought an order of temporary injunction restraining the 3rd Defendant from paying or remitting any rental income from the 56 housing units constructed on the suit property to the 1st and 2nd Defendants, their agents, employees or nominees pending the hearing of the application and later the main suit. 3. The application is premised on the grounds set out on the face of the Notice of Motion and the supporting affidavit of Rev. Antony Gichohi Mugo sworn on 5th June 2025. 4. The gist of the Plaintiff’s claim is that on 7th June 2022 it entered into a lease agreement with one Grace Wangui Njoroge for the development and management of rental houses on the suit property for a period of 22 years commencing 1st November 2022. 5. On 2nd April 2023, the Plaintiff awarded the 1st Defendant a contract for the construction of 56 rental units (bedsitters) at a cost of Kshs. 32,984,000. Upon completion of the said rental units, the Defendants refused to hand over vacant possession of the same to the Plaintiff and started managing them and collecting rent from the tenants. They also engaged goons to prevent the plaintiff’s directors from accessing the suit premises thus occasioning the plaintiff irreparable loss and damage. 6. In response to the application, the Respondents filed a Notice of Preliminary Objection dated 18th June 2025 based on the following grounds: 1. *The transactions between the Plaintiff and the Defendants herein were purely commercial in nature thus the cause of action in this matter is a commercial dispute which does not in any way relate to climate, environment, occupation, ownership or title to land. Accordingly , the Honourable court lacks jurisdiction to entertain this case in light of Article 162(2) of the Constitution of Kenya, 2010 and section 13 of the Environment and Land Court Act, 2011.* 2. *This Honourable court lacks the jurisdiction to determine disputes of a commercial nature and in the circumstances the Defendants pray that the application dated 5th June 2025 and the entire suit be struck out.* 7. The court directed that the Preliminary Objection be canvassed by way of written submissions and both parties filed their submissions which I have considered. 8. In his submissions dated 10th November 2025, learned counsel for the Defendants submitted that the suit herein does not relate to a dispute over ownership, occupation, possession of land or title to land. 9. It is his position that the dispute involves breach of a construction agreement between the plaintiff and the 1st Defendant, forceful eviction of a contractor on a construction site and non- payment of contractual amounts owed to the 1st Defendant. It is further submitted that the Plaintiff has in his Plaint alleged that the 3rd Defendant paid into the 1st Defendant’s account, monies belonging to the Plaintiff. 10. It is his further contention that these are not land related disputes but rather disputes relating to payment of monies under a contractual agreement and that the prayers in the plaintiff are misleading as the defendants are not in occupation or possession of the suit premises. 11. Consequently, the court cannot issue orders in vain which will be incapable of execution. He maintains that the dispute is purely commercial and the plaintiff’s remedy can only be issued by the High Court. 12. Counsel set out the provisions of section 13 of the ELC Act which delineates the jurisdiction of the Environment and Land Court. He relied on the case of ***Bank of Africa Kenya Limited & Another v TSS Investment Limited & 2 Others ( Civil Appeal E055 of 2022) (2024 KECA 410 (26 April 2024) ( Judgment)*** where the court held that: *“Furthermore, the jurisdiction of the ELC to deal with disputes relating to contracts under section 13 of the ELC Act ought to be understood within the context of the court’s jurisdiction to deal with disputes connected to use if land as discussed herein above . Such contracts in our view ought to be incidental to the use of land. They do not include mortgages, charges collection of dues and rent which fall within the jurisdiction of the High court.”* 13. Additionally, counsel cited the case of ***Cooperative Bank of Kenya v Patrick Kangethe Njuguna & (2017) KECA 79 (KLR)*** where the Court held that the Environment and Land Court only has jurisdiction to deal with disputes connected to use of land and contracts incidental to the use of land, which do not include mortgages, charges, collection or dues and rents which fall within the jurisdiction of the High Court. 14. He also cited the case of **Joel Kyatha Mbaluka T/A Mbaluka & Associates Advocates v Daniel Ochieng Ogola T/A Ogola Okello & Co Advocates (2019) eKLR** which similarly clarified the jurisdiction of the ELC. 15. It was counsel’s submission that the Preliminary Objection had met the threshold in the case of **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Co. Ltd (1969) E.A 696** where the court was of the view that a preliminary objection should only raise a pure point of law which may dispose of a suit. **ANALYSIS AND DETERMINATION** 16. The principles governing the test for a preliminary objection were set out in the case of **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Co. Ltd (1969) E.A 696** where the courtobserved a s follows; *“A preliminary objection consists of a point of law which has been pleaded or which arises out of the pleadings and which if argues as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration …* *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 of if what is sought is the exercise of judicial discretion.”* 17. These principles were reaffirmed by the Supreme Court in the case of **Tullow Oil PLC & 3 Others v Permanent Secretary, Ministry of Energy, Republic of Kenya 7 15 Others 92019) KESC 36 (KLR)** where the court held that a preliminary objection must be founded upon a pure point of law arising from the pleadings, the determination of which neither calls for the ascertainment of contested facts nor the exercise of judicial discretion. 18. The Court further observed that in determining a preliminary objection, the facts pleaded are deemed to be correct for purposes of the objection. 19. I will therefore proceed to examine the instant preliminary objection through the above lens. The preliminary objection raises the fundamental question of the court’s jurisdiction. The centrality of jurisdiction to the judicial function has long been settled. In **Owners of the Motor Vessel “Lillian S” v Caltex oil (Kenya Ltd) 1989 KLR** the court stated thus: “*Jurisdiction is everything. Without it, the court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of the proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction”* 20. The jurisdiction of the Environment and Land Court is founded on Article 162(2) (b) of the Constitution of Kenya and Section 13 of the Environment and Land Court Act. 21. While Article 162 (2) of the Constitution of Kenya empowered Parliament to establish specialized courts with the status of the high Court to handle disputes regarding land, environment and employment disputes, section 13 of the ELC Act outlines the powers of the Environment and Land Court. 22. In particular Section 13 of the ELC Act provides as follows: *13.* ***Jurisdiction of the Court*** 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* 3. *relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations ,mining, minerals and other natural resources.* 4. *Relating to compulsory acquisition of land* 5. *Relating to land administration and management* 6. *Relating to public , private and community land and contracts, choses in action or other instruments granting any enforceable interests in land and any other dispute relating to environment and land”* 23. The question I must determine is whether the dispute herein falls within the jurisdiction of this court. The Plaint reveals that the dispute relates to a contract for the lease of the suit property by the plaintiff for purposes of constructing 56 rental units and collecting rent for a period of 22 years from 1st November 2022. 24. In furtherance of the contract, paid the sum of Kshs. 30,000,000 leaving a balance of Kshs. 2,984,000. The plaintiff then constructed the rental units and rented them out. However, the Defendants have failed to deliver possession of the houses constructed on the suit property to the plaintiff and have instead taken control of the said houses are collecting rent therefrom. 25. It is the plaintiff’s case that the defendants’ conduct amounts to trespass, hence their prayer for eviction of the defendants and their agents as well an order of permanent injunction to restrain the defendants from interfering with the suit premises. 26. On the other hand, it is the Defendants’ contention that the Plaintiff moved to court to forestall the Defendants’ right to pursue their monies payable under the construction agreement. The Defendants have not denied that they have failed to deliver possession and control of the suit property to the Plaintiff. The Defendants argue that the Plaintiff owes them money under the contract. It is the considered view of this court that by failing to hand over the houses to the plaintiff the Defendants are trespassing on the suit property. 27. Learned counsel for the Defendants has submitted that the court lacks jurisdiction as the dispute herein is purely commercial in nature. That it does not relate to a dispute over ownership, occupation, possession of or title to land. 28. It is her submission that the dispute involves a breach of a construction agreement between the Plaintiff and the 1st defendant, forceful eviction of a contractor from the construction site and non-payment of the contractual amount owed to the 1st Defendant. The Plaintiff also alleges that the 3rd defendant paid into the 1st Defendant’s account, monies belonging to the Plaintiff. 29. Counsel further contends that the prayers sought by the plaintiff are misleading as the Defendants are not in occupation of the suit property and therefore the court cannot issue orders in vain. 30. Unlike a mortgage or charge which does not confer occupation rights, a lease grants the tenant or lessee exclusive possession of the suit property for a defined period of time under agreed terms and conditions This interest gives the lessee the right to occupy, use and enjoy quiet possession of the land. On the other hand, a charge or mortgage does not give the chargor the right to occupy the property unless the bank is exercising it’s statutory power of sale. 31. In the instant case, the Plaintiff has been prevented from enjoying its right to quiet possession of the suit property which he has leased for a term of 22 years. Its right to collect rent has also been circumvented by the Defendants under the guise that the plaintiff owes monies under the construction agreement between the plaintiff and the 1st Defendant. 32. This is not a purely commercial dispute as argued by counsel for the Defendants as it involves both a contract and issues of unlawful possession and/or constructive occupation of the suit property by the Defendants through collection of rent from the houses constructed by the Plaintiffs. 33. In my considered view, the principles in the case of **Patrick Kangethe and Tullow Oil** do not apply as we are not dealing with a bank matter where the bank seeks to exercise its statutory power of sale under a charge. As admitted by the Defendants, one of the questions that this court will have to determine is the issue of eviction of the contractor. 34. The prayers in the Plaint are for trespass, eviction and a permanent injunction. These are issues squarely within the jurisdiction of the Environment and Land Court. This court has jurisdiction to deal with contracts in the context of land matters especially where possession and eviction are concerned such as the instant suit. 35. Having said that, I agree with counsel for the Plaintiff that since there are contested facts as to what the real issues in dispute are, the Preliminary objection does not meet the threshold in the Mukisa Biscuits case. 36. In view of the foregoing, the Preliminary objection lacks merit and it is hereby dismissed with cost to the Plaintiff. **Dated, signed and delivered virtually this 17th day of July 2026.** **.............................** **J. M ONYANGO** **JUDGE**