Ondora v Ondora (Environment & Land Case E007 of 2023) [2024] KEELC 4393 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed it can hear any land dispute anywhere in Kenya, regardless of where the property sits or what it is worth.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection met the Mukisa Biscuit threshold
The PO met the threshold because it raised a pure point of law on jurisdiction on undisputed facts and was capable of disposing of the suit.
Applying the settled Mukisa Biscuit principles, the court found the objection raised a pure point of law (jurisdiction), assumed the truth of the plaintiff's pleaded facts, involved no factual inquiry or judicial discretion, and was capable of disposing of the suit. The Supreme Court's dictum in Mary Wambui Munene that jurisdiction is a pure question of law reinforced this conclusion.
Whether the ELC at Siaya has jurisdiction over the suit given the suit property's location in Ugenya sub-county within Ukwala Law Courts' precincts
The ELC has overall, unlimited jurisdiction over land disputes and is not constrained by the pecuniary and territorial limits applicable to gazetted magistrates; the challenge to jurisdiction was misplaced.
Section 26(3) and (4) of the ELC Act confers jurisdiction on gazetted magistrates subject to pecuniary and territorial limits under the Magistrates' Courts Act and the Civil Procedure Act. But the ELC itself, a creature of Article 162(2)(b), has unlimited original jurisdiction over land and environment disputes throughout Kenya. Sections 4, 12 and 15 of the Civil Procedure Act are administrative and cannot oust that jurisdiction.
Locus standi of the plaintiff
The issue was disregarded because it was raised only in submissions and not as a ground of the preliminary objection.
The defendant did not include locus standi among the grounds of the PO dated 5/03/2024; it surfaced only in written submissions. Further, the defendant did not substantiate the allegation that the suit was frivolous or an abuse of process.
Legal principles established
#- A preliminary objection must raise a pure point of law on assumed pleaded facts and must be capable of disposing of the suit.
- The ELC has unlimited original jurisdiction over land and environment disputes and is not subject to the pecuniary limits of magistrates' courts.
Court orders
#- 1.The preliminary objection dated 5/03/2024 is dismissed with costs.
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ondora v Ondora (Environment & Land Case E007 of 2023) [2024] KEELC 4393 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4393/eng@2024-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.