https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3784

Adhiambo v Opiyo t/a Oyugis Services Station & another (Environment and Land Miscellaneous Case E027 of 2026) [2026] KEELC 3784 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEELC 3784 (KLR) Republic of Kenya In the Environment and Land Court at Homa Bay Environment and Land Miscellaneous Case E027 of 2026 JW Wanyonyi, J June 17, 2026 Between Tom Ocholla Adhiambo Applicant and Geoffrey Otieno Opiyo t/a Oyugis Services Station 1st Respondent Estate of Late Zilpah Atieno Odak 2nd Respondent Ruling 1.On the day of 28th May, 2025, the Appellant /Applicant herein filed and lodged the application dated 28th May 2025 under certificate of urgency where he sought for:1.Spent.2.Spent.3.The Honourable Court be pleased to grant leave and/or permission to the applicant to lodge an appeal against the Ruling and/or Order of Honourable S. O. Ongeri Principal Magistrate dated 13th May, 2025.4.Consequent to prayer (3) above being granted, the applicant do lodge the intended appeal within the period the Honourable Court shall stipulate. 2.The Honourable Court be pleased to stay proceedings in respect of MC COMMSU No. E001 of 2025 pending the hearing of the instance notice of Motion and the intended appeal. 3.The Honourable Court be pleased to grant an order of stay of execution of and/or mitigation stated on 6th day of June 2025 against the Ruling and/or Order issued on 13th day of May, 2025 pending the hearing and determination of the intended Appeal to the Honourable Court. 4.The Honourable Court be pleased to vacate and/or set aside the Orders issued by Senior Principal Magistrate at Oyugis Court dated 13th day of May 2025 in respect of MC COMMSU No E001 of 2025. 5.Upon granting prayer (7) hereabove, the Honourable Court be pleased to order the processing culminating to the issuance of the said Ruling dated 13th day of May, 2025 be set aside and order the notice of motion dated 11th day of October 2025 be served onto the Applicant's Counsel and the said notice to motion be heard afresh before a different Magistrate. 6.Cost of this application do abide the intended appeal. 7.The application is supported by the annexed affidavit of the Applicant and on the grounds enumerated on the body of the application. 8.The affidavit in support of the application contains 30 paragraphs to which the applicant has annexed:(a)Copy of Plaint.(b)Notice of motion dated 26th February, 2025.(c)Replying Affidavit and notice of appearance.(d)Notice of motion dated 19th May 2025.(e)Survey Report dated 3rd February, 2017.(f)Certificate of official search.(e)Draft Memo of appearance.(g)Order issued on 13th day of March, 2025. 9.Upon filing the application on 29th May, 2025, Hon Justice Sila Munyao Judge (as he then was) directed that the same be served and granted prayer 2 in the interim. 10.Subsequently on 2/7/2025 further directions were given by Hon Justice DR (iur) Fred Nyagaka - Judge and fixed the Application for 3rd November, 2025, with a rider that the Respondents Counsel be served. 11.On the said 3rd November, 2025 further directions were given in the presence of Mr. Onchwang' Advocate for the Applicant, and Onyango for the Respondent and the matter fixed for hearing on 27/11/2025. 12.On the said 3rd November, 2025 the Firm of Advocates who had just come on record for Appellant filed a Preliminary Objection dated same date wherein the following grounds were enumerated; namely,1.That this Honourable Court lacks jurisdiction to entertain and determine the present appeal, the same having arisen from warrant of arrest issued in enforcement of court orders in a Commercial Suit, which falls within the jurisdiction of the Commercial and Tax Division of the High Court pursuant to Article 165(5) of the Constitution of Kenya, Section 13 of the Environment and Land Court Act, Section 2 of the Civil Procedure Act.2.That the appeal as filed is fatally defective, incompetent, totally defective and or abuse of the Court process, the same having been filed before a Court without jurisdiction.3.That there exists no nexus between the subject matter of suit and the jurisdiction scope of this Honourable Court as delineated under Section 13(2) of the Environment and Land Court Act.4.That, consequently, the entire appeal also ought to be struck out with costs for want of jurisdiction. 13.On 27/11/2025 directions were taken in the Court gave timelines for complying by filing submissions. 14.The 1st Respondent had up to 21/1/2026 to file the and serve but from the CTS it appears there was no compliance. 15.On 1st December, 2025 the Applicant had already complied by filing submissions. Submissions by the Applicant 16.The applicant states that the issues that were raised at Oyugis Law Courts were matters that revolved around Plot number 38 Oyugis town, and that the Respondent has complained of trespass, that the Suit filed at Oyugis is not commercial in nature as alleged. 17.Counsel relied in the following decisions;Thika ELC No E30 of 2025 John Mbuki Vs Jennifer Ngendo Waweru & 3 others where Onyango J outlined the jurisdiction of this Court by referring to Articles 162(2)(b) of the Constitution. 18.Thika ELC No 38 of 2018 Moses Mwangi Nyiha GAtambia versus Penniah Ngechi Njaaga & 3 Others (J. Gacheru J) the Court made reference to the case of Mukisa Biscuit Manufacturing Company Limited versus West End Distributors Ltd (1969) where the Court observed that improper raising of P.O.s does nothing but unnecessarily increase costs and confuse issues, and Meru ELC Number 261 of 2019 (OS) Peter M'Mwioki M'Mkanata Vs Sabela Ncekei Kirima (Lucy N. Mbugua, J) commented on the case of trespass Avtar Singh Bhogal & Another Vs Oriental Commercial Bank HCC No 53 of 2004 where it was held thus:"A preliminary objection must stem or germinate from the pleadings filed by the parties and must be based on pure points of law with no facts to be ascertained." ISsues for Determination. 19.Whether the Preliminary Objection is merited. 20.The Supreme Court in Independent Electoral and Boundaries. Commission versus Jane Cheperenge & 2 Others (2015) eKLR made the following observation as related to Preliminary Objections:“…… The true Preliminary Objection serves two purposes of Merit. Firstly, it serves as a shield for the originator of the objection against profligate deployment of time and other resources and secondly, it served the public cause of sparing scarce judicial time so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort the preliminary objection as a sword. For winning a case otherwise destined to resolve judicially and on merits”. 21.The Supreme Court likewise addresses its mind on the same issue in the case of Aviation and Allied workers Union versus Kenya Airways Limited & 3 others (2015) eKLR and held.“Thus, a preliminary objection may only be raised a pare question of law. To discern such a point of law, the court has to be satisfied that there is no proper contest as to facts”. 22.On the Jurisdiction the question is whether the dispute before the Court transforms the dispute into one relating to the environment and the use and occupation of and title (to land to be matter to the ELC) as opposed to a commercial performance dispute. 23.In the case of Suzanne Achieng Butler & 4 Others v. Redhill Heights Investments Limited & Another (2016) eKLR the Court upheld the predominant purpose test and stated that:"when faced with a controversy whether a particular case is a dispute about land litigated at the ELC or not the Court utilise the pre-dominant purpose test: In a transaction involving both a sale of land and other services or goods the jurisdiction lies at the ELC if the transaction is predominantly for land but the High Court has the jurisdiction if the transaction is predominantly for provision of goods, construction of works." 24.The Court of Appeal in Co-operative Bank of Kenya Limited vs Patrick Kangethe Ngugi & 5 Others (2017) eKLR stated:“Furthermore, the jurisdiction of the ELC to deal with disputes relating to contracts under Section 13 of the ELC Act is the jurisdiction to deal with disputes relating to the use of land as discussed herein above. Such Contracts, to our view, ought to be incidental to use of land they do not include mortgages, charges, collection of dues and rents which fall within the civil jurisdiction of the High Court."By Parity of reasoning the dominant issue in this case this case was the settlement of amounts owing for the respondents to appellant on account of a Contractual relationship banker and a lender. 25.In the case of Joel Kyatha Mbaluka t/a Mbaluka & Associates Advocates v/s Daniel Ochieng Ogola t/a Ogola Okello & Co Advocates (2019) eKLR the Court stated:“12.We reiterate the position taken in Co-operative Bank of Kenya Limited v Patrick Kangethe Ngugi (Supra) that in construing whether the ELC had jurisdiction over a matter, the consideration must be the dominant issue in the dispute and whether the issue relates to the use and occupation and title to land. The dispute between the appellant and the respondent related to a professional undertaking given by the appellant to facilitate the land transaction between his client and the respondent's client." 26.In re Estate of Prisca Ong’ayo Nande (Deceased) [2020] KEHC 6553 (KLR) Justice Musyoka made the following observation in respect of the pre-dominant purpose test as hereunder.“26.The applicant herein lays claim to Butsotso/Indangalasia/337, not as an inheritor from the estate of the deceased herein, but by alleging that portions of that property was sold to him by the estate. The sales are contested by the administrator. That would mean the court has to decide a question of ownership of the said property as between the estate and the applicant. Sale of property is about conveyance of title from the seller to the buyer. The dispute, therefore, is at the heart of title and ownership. Ownership or proprietorship of a property revolves about title, and that clearly places the matter squarely under Article 162(2) of the Constitution.27.The property in question is registered land. Registration of property and transfers are governed by land legislation, to be specific the Land Registration Act, No. 3 of 2012, and the Land Act, No. 6 of 2012. The two pieces of land legislation have elaborate provisions of sale of registered land, and transfer and registration thereof. A determination of the question as to whether there was a valid sale of the registered land in accordance with the relevant land legislation, is an issue that is well outside the jurisdiction of the High Court. Both statutes carry provisions which state the jurisdiction of the court with regard to the application and interpretation of the two statutes. These provisions are to be found in sections 2 and 101 of the Land Registration Act and sections 2 and 150 of the Land Act.28.The provisions in the Land Registration Act state as follows:“Interpretation.2.In this Act, unless the context otherwise requires—“Court” means the Environment and Land Court established under the Environment and Land Court Act, 2011, No. 19 of 2011: …Jurisdiction of court.101.The Environment and Land Court established by the Environment and Land Court Act, 2011 No. 19 of 2011 has jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Act.”29.The Land Act carries similar provisions, which state as follows:“2.InterpretationIn this Act, unless the context otherwise requires—“Court” means the Environment and Land Court established under the Environment and Land Court Act, 2011 (No. 19 of 2011); …150.Jurisdiction of the Environment and Land CourtThe Environment and Land Court established in the Environment and Land Court Act and the subordinate courts as empowered by any written law shall have jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Act.”30.My understanding of these provisions, in the context of the matter before me, is that any disputes or questions or issues that require court intervention, which revolve around sale, registration and transfer of land, fall within the jurisdiction of the Environment and Land Court. The Land Registration Act and the Land Act, therefore, confer jurisdiction in the Environment and Land Court with regard to all the processes that are subject to the two statutes, and, therefore, any reference in the two statutes to court is meant to refer to the Environment and Land Court and any subordinate court that has been conferred with jurisdiction over the processes the subject of the two statutes. All this adds emphasis to the fact that I have no jurisdiction whatsoever to address the matter that the applicant has placed before me.” 27.To determine whether this Court has jurisdiction to entertain the application now before it back to the Plaint which has been attached to the application. 28.The heading of the Plaint reads " No …. of 2025. 29.The 1st Respondent herein who sued as plaintiff has pleaded at paragraph 4 that he is a lease of LR plot number 38 Oyugis town. 30.The lease was between himself and the 2nd Respondent. 31.His main complaint, and which forms the dominant issue is that the 1st Defendant (who is the Applicant herein) has encroached the suit property in her reply raised an issue about sub-division of land that referred us to different plot from what is ordered sought cannot legally obtain. 32.I have also looked at the documents filed. I note there is a survey report made in ELC Case No 67 of 2015 which a ground status of the disputed plots. 33.Section 13(1) of the Environment and Land Court Act gives the Court both original and appellant jurisdiction to determine all disputes in accordance with Article 162(2)(b) of the Constitution and the provisions of the Environment and Land Court Act. 34.I therefore find the preliminary objection has no basis as the dominant issue is, who is entitled to the land, and, whether the land actually exists. 35.I have also looked at the wording of the preliminary objection by the Counsel for the Respondent filed the same on the premise that an appeal has been filed. 36.At this stage I find the preliminary objection premature and misplaced. 37.I proceed to dismiss the same with costs. 38.The application dates shall proceed as earlier scheduled. RULING DATED, DELIVERED VIRTUALLY ON THIS 17TH DAY OF JUNE 2026 AT HOMABAY ELC COURT.Stay orders extended.In the presence;1. Omondi for the Respondent/Applicant- Present2. Ochwangi for the applicant (Absent)JUSTICE JOHN WALTER WANYONYIJUDGEOmondi: I seek leave to file my response to the application. I pray for 21 days.Court: I hereby grant the Respondent 21 days to file and serve a response.Court: The respondent is granted 21 days to file a response. Mention Notice to issue on 23/7/2026. Mention Notice to Issue.JUSTICE JOHN WALTER WANYONYIJUDGE