Mbae (Suing as the Legal Representative of M’Nkanata M’Njiima) v Tharaka Nithi County Government (Environment & Land Case E001 of 2022) [2022] KEELC 2742 (KLR)

The court accepted that the Environment and Land Court, established under Article 162(2)(b) and endowed with jurisdiction by Section 13 of the Environment and Land Court Act, has original jurisdiction over disputes relating to title to land. On the pleadings, the parcels are already registered in the Defendant's name per the certificate of official search, and the claim is founded on fraud allegedly occurring after adjudication. Since the objection required ascertaining disputed facts (whether adjudication is concluded and whether fraud occurred), it could not succeed as a pure point of law.

Applying Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, the court noted that a preliminary objection must be argued on the assumption that all facts pleaded are correct and cannot be raised if facts must be ascertained. Here, the Defendant's assertion that adjudication is incomplete was disputed by the Plaintiff, who exhibited a certificate of official search showing registration; the allegation of fraud could only be determined upon hearing the matter.