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ELCStruck OutNotice of Preliminary Objection dated 31/10/2023 in suit arising from plaint and Notice of Motion dated 24/10/2023

Mwangi v Githei (Civil Case E035 of 2023) [2024] KEELC 1171 (KLR)

Environment and Land Court
29 February 2024
MOMOGENI
2,141 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a tenant's suit because appeals from Kenya's Rent Restriction Tribunal must go through an appeal, not a fresh case.

What this practically means

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Executive summary

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The plaintiff/tenant, Joseph Githinji Mwangi, filed a plaint and a Notice of Motion dated 24/10/2023 before the Environment and Land Court at Nairobi, invoking Article 43(1)(b) of the Constitution and the Rent Restriction Act, seeking stay of execution of a judgment in Rent Restriction Case No. E377 of 2022 which ordered his eviction from the suit premises on or after 6 November 2023, together with injunctions restraining eviction, disconnection of water and electricity, and harassment pending hearing of the suit. He contended he owed no rent and intended to appeal the Tribunal's decision, and that eviction would disrupt his children's education. The defendant/landlord filed a notice of preliminary objection dated 31/10/2023 on four grounds, principally that the court lacked jurisdiction, that the suit was misconceived, bad in law and an abuse of process. Relying on Mukisa Biscuit, Nitin Properties, Oraro v Mbaja, Hassan Ali Joho, Owners of the Motor Vessel 'Lilian S', the Interim Independent Electoral Commission advisory opinion and Samuel Kamau Macharia, the court held that jurisdiction is a pure point of law to be determined first. Although the ELC's jurisdiction under Article 162(2)(b) and section 13 of the ELC Act covers disputes over use, occupation and title to land, the court found that in controlled tenancy matters it exercises only appellate jurisdiction under section 15 of the Act. Since the issues in the plaint had already been determined by the Rent Restriction Tribunal on 6/09/2023, the plaintiff's remedy was an appeal, not a fresh suit. The preliminary objection was upheld, the suit was struck out, and costs were awarded to the defendant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the preliminary objection is merited
  2. 2.Whether the court has jurisdiction to determine the suit filed before it

Key legal issues

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01

Whether the preliminary objection on jurisdiction is a pure point of law suitable for determination before the hearing

Holding

Yes; jurisdiction is a pure point of law that can be raised before hearing and must be determined first.

Reasoning

Relying on Mukisa Biscuit, Nitin Properties, Oraro v Mbaja and Hassan Ali Joho, the court held that a challenge to jurisdiction is a pure point of law argued on the assumption that pleaded facts are correct. Since the matter was yet to be heard, the defendant was properly within the law to raise it, and the court was obliged to determine it before taking any further step.

p. 3
02

Whether the ELC has jurisdiction over a fresh suit re-litigating a matter determined by the Rent Restriction Tribunal

Holding

No; the ELC's jurisdiction over controlled tenancies is appellate only, under section 15 of the ELC Act, and the plaintiff's remedy was an appeal, not a fresh plaint.

Reasoning

The court accepted that its jurisdiction flows from Article 162(2)(b) and section 13 of the ELC Act, covering disputes over use, occupation and title to land. However, since the same issues had been deliberated and determined by the Rent Restriction Tribunal on 6/09/2023, the plaintiff could only approach the court by way of appeal under section 15, not by filing a fresh plaint and application on the same issues.

p. 5

Legal principles established

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  • The Environment and Land Court hears appeals from the Rent Restriction Tribunal only under section 15 of the ELC Act and cannot entertain a fresh suit re-litigating a matter already heard and determined by the Tribunal.
  • A court without jurisdiction must down its tools and cannot entertain proceedings, however meritorious the claim may appear.

Court orders

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  1. 1.The preliminary objection is upheld
  2. 2.The suit (including the plaint and Notice of Motion dated 24/10/2023) is struck out
  3. 3.Costs of the suit to the defendant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MO
majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

Relief refused

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Stay of execution of the judgment in Rent Restriction Case No. E377 of 2022 and injunctive reliefs restraining eviction, disconnection of utilities and interference with tenancy

The court lacked statutory jurisdiction to entertain the suit; the proper route from the Rent Restriction Tribunal decision was an appeal, not a fresh suit

p. 5

Costs

Costs of the suit to the defendant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The objection is upheld and this suit is struck out with costs to the defendant.
p. 5Final orders - striking out of suit
Hence the Environment and Land Court is not a court of first instance in matters dealing with controlled tenancy but purely as an appellate court.
p. 5Jurisdiction of the ELC over Rent Restriction Tribunal matters
The plaintifi/applicant was ordered to vacate the suit property the only other way the plaintifi/applicant would have approached this court is via an appeal.
p. 5Proper remedy from Tribunal decision
Jurisdiction is everything. Without it, a Court has no power to make one more step.
p. 3Primacy of jurisdiction (quoting Owners of the Motor Vessel 'Lilian S')

Issues in the judgment

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minor

Inconsistent case number for the Rent Restriction Tribunal matter - referred to as 'Case Number E377 of 2022' and 'Cause No. 377 of 2022' in the applicant's materials but as 'RRT Case No. 337 of 2022' in the defendant's replying affidavit

minor

The judgment refers to the plaint and application as dated 24/10/2024 when they are dated 24/10/2023

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mwangi v Githei (Civil Case E035 of 2023) [2024] KEELC 1171 (KLR)", Case Analysis (2024). Notice of Preliminary Objection dated 31/10/2023 in suit arising from plaint and Notice of Motion dated 24/10/2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1171/eng@2024-02-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.