Kassim (Suing Through His Attorney and Agent, Iftikar Omar Faraj) v fadhil & another (Being Legal Representatives of the Estate of Mohamed Omar - Deceased) (Environment & Land Case 275 of 2014) [2024] KEELC 495 (KLR)
The bottom line
#Kenya's Environment and Land Court can hear money claims buried inside land sale agreements, so trying to strike them out on jurisdiction rarely works.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC has jurisdiction over a counterclaim for Kshs 2,594,600 said to be of a purely commercial nature unrelated to land.
The court has jurisdiction; the counterclaim flows from a building-contract clause intertwined with the land sale agreement, invoking Article 162(2)(b) and section 13 of the ELC Act.
The court held that the suit was originally a land claim (specific performance of a sale agreement) settled by consent in 2016, with the land transferred. The counterclaim arose from the building contract clause embedded in the same sale agreement. Because the two agreements were intertwined, severing them would be unjust and more expensive. Under Article 162(2)(b), Article 159(2)(b) and section 13(2)(d) and 13(7)(c) of the ELC Act, the court had jurisdiction to determine the counterclaim.
Whether Susanne Achieng Butler v Redhill Heights applied.
Distinguished: unlike that case, the instant suit was filed primarily as a claim over land, and the counterclaim arises from that settled suit.
In Butler, the dispute presented to court concerned only the construction contract, with no contest over land ownership, so the High Court had jurisdiction. Here, the suit filed was primarily a land claim (specific performance), settled by consent with transfer effected. The defendant's counterclaim arises out of what remained unsettled in that land dispute, so the authority did not assist the plaintiff.
Legal principles established
#- The ELC has jurisdiction over a counterclaim arising from a building-contract clause so intertwined with an agreement for the sale of land that severance would be unjust and expensive.
Court orders
#- 1.That the plaintiff's preliminary objection dated the 16th August 2023 is without merit.
- 2.The said preliminary objection is hereby rejected.
- 3.The plaintiff to pay the defendants' costs in the preliminary objection.
- Jurisdiction invoked
- Articles 162(2)(b) and 159(2)(b) of the Constitution; sections 13(2)(d) and 13(7)(c) of the Environment and Land Court Act No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kassim (Suing Through His Attorney and Agent, Iftikar Omar Faraj) v fadhil & another (Being Legal Representatives of the Estate of Mohamed Omar - Deceased) (Environment & Land Case 275 of 2014) [2024] KEELC 495 (KLR)", Case Analysis (2024). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/495/eng@2024-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.