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ELCDismissedNot stated in the judgment as provided· [2024] KEELC 1682 (KLR)

Kalume & another (Legal representatives of the Estate of the Late Moses Nyambu Mupe aka Mpe (Deceased)) v Kenya Electricity Transmission Co Ltd (Environment & Land Case E103 of 2022) [2024] KEELC 1682 (KLR)

Environment and Land Court
19 March 2024
1,305 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to dismiss a land trespass suit on value grounds, confirming you cannot resolve jurisdiction disputes that require evidence through a preliminary objection.

What this practically means

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Executive summary

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In this first-instance ruling of the Environment and Land Court at Malindi, the plaintiff sued the defendant for trespass on Land Parcel No. Kilifi/Kakuyuni/Madunguni/280, alleging that from March 2020 the defendant erected high-voltage power pylons and lines on the suit property without right or compensation. The plaintiff sought demolition and removal of the structures, or in the alternative compensation at current market rates fixed by a court-appointed valuer, damages for trespass, compensation for loss of user, and costs. The defendant raised a preliminary objection dated 18th March 2022 contending that the Court lacked pecuniary jurisdiction, relying on a valuation report valuing the property at Kshs. 1,700,000/- and thus within the Magistrates Court's jurisdiction under Section 13 of the Environment and Land Court Act. The plaintiff opposed, arguing the suit involved mixed claims - trespass, demolition, loss of user and compulsory acquisition - whose net pecuniary value could not be ascertained without trial, and that jurisdiction flowed from Article 162(2)(b) of the Constitution and Section 13 of the ELC Act. The Court, citing Mukisa Biscuit, Hassan Ali Joho and IEBC v Cheperenger on the nature of preliminary objections, held that the pecuniary value of the suit could not be determined on a preliminary objection without taking evidence. The preliminary objection was dismissed with costs to the plaintiff. The ruling was delivered virtually at Malindi on 19th March 2024 by E. K. Makori J.

Key legal issues

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Whether the ELC at Malindi lacks pecuniary jurisdiction because the defendant's valuation pegs the suit property at Kshs. 1,700,000/-, below the Kshs. 20,000,000/- Magistrates Court threshold

Holding

The preliminary objection fails because the value of the suit cannot be determined on the pleadings alone; the plaintiff's claims include non-liquidated claims (trespass damages, loss of user, demolition, compulsory acquisition) whose value can only be ascertained at trial

Reasoning

The court applied the Mukisa Biscuit and IEBC v Cheperenger tests: a preliminary objection must be a pure point of law argued on assumed facts. Here, assessing the net pecuniary value of mixed claims (compensation, trespass, demolition, compulsory acquisition) requires evidence. The defendant's valuation alone did not fix the value of the entire suit, so the objection could not dispose of the matter summarily.

p. 3

Legal principles established

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  • A preliminary objection must rest on a pure point of law and cannot be sustained where facts must be ascertained
  • Where the pecuniary value of a suit cannot be ascertained from the pleadings without evidence, jurisdiction cannot be determined summarily on a preliminary objection

Court orders

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  1. 1.The Preliminary Objection dated 18th March 2022 is dismissed
  2. 2.Costs of the Preliminary Objection to the plaintiff

Authorities

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Legislation

  • Environment and Land Court ActSection 13
  • Constitution of KenyaArticle 162(2)(b)

Cases cited (13)

  • Dakianga Distributors (K) Ltd v Seed Company Ltd
    [2015] eKLR
  • Phoenix of E. A Co. Ltd v S.M. Thiga t/a Newspaper Service
    [2019] eKLR
  • Samuel Kamau Macharia & Another v KCB Ltd & 2 Others
    [2012] eKLR
  • EACC v Solomon Lempere & 2 Others
    [2021] eKLR
  • Patrick Ndegwa Munyua v Benjamin Kiiru Mwangi & Another
    [2020] eKLR
  • Hassan Mohammed Noor & Another v Mohammed Abdi Karim & 5 Others
    [2022] eKLR
  • Macfoy v United Africa Co. Ltd
    [1963] 3 ALL ER
  • Paolo Di Maria & 5 Others v Alice M. Kuria & 5 Others
    [2021] eKLR
  • Nancy Wangari Kamau v National Land Commission & 2 Others
    [2018] eKLR
  • DJC v BKL
    (Civil Suit E021 of 2021) [2022] KEHC 10189 (KLR) (27 June 2022)
  • Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd.
    (1969) EA 696
  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others
    [2015] eKLR
Jurisdiction invoked
Section 13 of the Environment and Land Court Act as envisaged by Article 162(2)(b) of the Constitution

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, "Kalume & another (Legal representatives of the Estate of the Late Moses Nyambu Mupe aka Mpe (Deceased)) v Kenya Electricity Transmission Co Ltd (Environment & Land Case E103 of 2022) [2024] KEELC 1682 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1682/eng@2024-03-19

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