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ELCStruck OutPetition dated 2nd July 2024· [2025] KEELC 614 (KLR)

Mohamed & 3 others v Mbarak & 3 others (Environment & Land Petition E016 of 2024) [2025] KEELC 614 (KLR)

Environment and Land Court
19 February 2025
2,121 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Mombasa struck out a land ownership petition because the family should have appealed the Kadhi's court decision first.

What this practically means

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Executive summary

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The 1st to 3rd respondents filed a preliminary objection dated 10th July 2024 against a petition dated 2nd July 2024, raising eight grounds including that the suit was lodged in the wrong forum, since an appeal from a Kadhi's court succession cause lies to the High Court Family Division and not the Environment and Land Court; that the court lacked jurisdiction over a purely succession dispute; and that the petitioners lacked locus standi. The court framed two issues: whether the objection raised pure points of law, and costs. Applying Mukisa Biscuit and Oraro v Mbaja, the court held that although the petitioners sought factual declarations of ownership of Mombasa/Block XIII/226 and Mombasa/Block XIII/218, the grounds on jurisdiction and forum were pure questions of law. While the ELC has jurisdiction over title to land under section 13 of the ELC Act and Article 162(2)(b) of the Constitution, the proper remedy against the Kadhi's court judgment was an appeal to the High Court or judicial review limited to the decision-making process, per the doctrine of exhaustion. Relying on In re Estate of Prisca Ong'ayo Nande, the court noted the Kadhi's court cannot declare ownership of land under shariah law. The objection on jurisdiction succeeded and the petition was struck out, with costs to the petitioners.

Key legal issues

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01

Whether the preliminary objection raised pure points of law capable of determining the petition

Holding

Yes - the grounds questioning the forum and jurisdiction were questions of law determinable without evidence, and the objection on jurisdiction succeeded

Reasoning

Relying on Mukisa Biscuit and Oraro v Mbaja, the court noted that although factual ownership questions were raised in the petition, the grounds on jurisdiction and proper forum were pure points of law. The objection on jurisdiction succeeded; the petitioners should have appealed the Kadhi's court judgment or filed a normal suit after a favourable appeal, per the doctrine of exhaustion.

p. 5
02

Whether the ELC has jurisdiction over the petition

Holding

The ELC has jurisdiction over title to land, but the petitioners' proper remedy against the Kadhi's court judgment was an appeal to the High Court Family Division, not a constitutional petition in the ELC

Reasoning

Section 13 of the ELC Act and Article 162(2)(b) confer title-to-land jurisdiction on the ELC. However, a judgment of the Kadhi's court in a succession cause can only be challenged on appeal to the High Court Family Division or through judicial review limited to process. The petition could not re-litigate ownership where a subsisting judgment had not been successfully challenged.

p. 4

Legal principles established

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  • A preliminary objection must raise a pure point of law on assumed facts and cannot be raised where facts must be ascertained or judicial discretion exercised
  • Jurisdiction is foundational; a court without jurisdiction must down its tools
  • The ELC has jurisdiction over questions of ownership or title to land, and the Kadhi's court lacks jurisdiction to make declarations on ownership of land under shariah law though it may distribute uncontested estates
  • A litigant must exhaust appellate remedies before a forum; judicial review addresses only the decision-making process, not the merits of the decision

Court orders

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  1. 1.The 1st to 3rd respondents' notice of preliminary objection on the ground of jurisdiction is upheld
  2. 2.The petitioners' claim through the petition dated 2nd July 2024 is struck out
  3. 3.The petitioners to bear the costs

Authorities

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Legislation

  • Kadhis' Courts (Procedure and Practice) RulesRule 86
  • Law of Succession ActSection 50(2)
  • Civil Procedure Rules, 2010Order 53 Rules 1 and 2
  • Environment and Land Court ActSection 13
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Articles 162(2) and 165(5)
  • Land Registration Act
  • Land Act

Cases cited (7)

  • Mukisa Biscuit Manufacturing Co Ltd versus West End Distributors Ltd
    [1969] EA 696
  • Oraro versus Mbaja
    (2005) 1 KLR 141
  • George Waweru Njuguna versus Pauline Chesang Gitau Kamuyu
    (2017) eKLR
  • Unilever Tea Kenya Limited versus Andrew Cheruiyot Rotich & 3 Others
    (2020) eKLR
  • Owners of the Motor Vessel “Lillian S” versus Caltex Oil (Kenya) Ltd
    (1989)
  • Moses Mwicigi and 14 others versus Independent Electoral and Boundaries Commission and 5 others
    Supreme Court Petition No 1 of 2015
  • In re Estate of Prisca Ong’ayo Nande (Deceased)
    [2020] KEHC 6553 (KLR)
Jurisdiction invoked
Section 13 of the Environment and Land Court Act and 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, "Mohamed & 3 others v Mbarak & 3 others (Environment & Land Petition E016 of 2024) [2025] KEELC 614 (KLR)", Case Analysis (2025). Petition dated 2nd July 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/614/eng@2025-02-19

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