Ethics and Anti-Corruption Commission v Gathoni & 2 others (Environment & Land Case E256 of 2024) [2025] KEELC 683 (KLR)
The bottom line
#Kenya's Environment and Land Court protected a Nairobi playground from sale or development, ruling claims over public land are not time-barred.
What this practically means
#Executive summary
#Key legal issues
#Competency and merit of the Preliminary Objection
Only the limitation plea was a proper point of law; it failed because the suit is excluded from the Limitation of Actions Act under Section 42(1)(d). The objection was dismissed in its entirety.
Applying Mukisa Biscuits and Hassan Ali Joho, the court found the limitation plea a pure point of law but misjoinder, scandalousness and abuse-of-process pleas required fact-finding or discretion and were improper preliminary objections. The suit, being one by the Plaintiff to recover alienated Government land designated as a public utility, fell within Section 42(1)(d) and was therefore not time barred despite the 1993 cause of action.
Whether the Defendants' Motion to strike out the Plaint was fatally defective for lack of a supporting affidavit, and whether it was merited
The Motion was not fatally defective because no affidavit evidence is admissible under Order 2 Rule 15(1)(a), but it was unmerited as the Plaint raised serious triable issues.
Order 2 Rule 15(1)(a) expressly excludes evidence on such applications. On the merits, applying DT Dobie and Blue Shield, striking out is drastic and reserved for hopeless cases. The Plaint pleads fraud, breach of statutory and fiduciary duty and abuse of office by the 1st Defendant and particulars of fraud against the 2nd Defendant, raising serious triable issues requiring rebuttal at trial.
Whether the threshold for a temporary injunction was met
The Plaintiff established a prima facie case and irreparable harm; a temporary injunction was granted restraining the 2nd Defendant from dealing with L.R 209/11858.
Applying Giella and Nguruman sequentially, the court found documentary evidence of the playground designation, the fraudulent transfer, the familial links and the NLC revocation unchallenged, since the Defendants filed only Grounds of Opposition which cannot controvert sworn averments. The public right to the playground was materially threatened and loss of public space is not monetarily compensable.
Legal principles established
#- Proceedings by the Government to recover possession of Government land are excluded from the Limitation of Actions Act
- Striking out of pleadings is a drastic remedy to be exercised only in the clearest of circumstances
- A motion under Order 2 Rule 15(1)(a) to strike out a pleading for disclosing no reasonable cause of action does not require a supporting affidavit
- Grounds of Opposition cannot amount to a proper denial of allegations made on oath
Court orders
#- 1.The Preliminary Objection dated 20th September, 2024 is found to be unmerited and dismissed with costs
- 2.The Motion dated 20th September, 2024 is found to be unmerited and is dismissed with costs
- 3.A temporary injunction issued restraining the 2nd Defendant, its servants, employees, and/or agents from trespassing, alienating, selling, charging, or further charging, leasing, developing, sub-dividing, transferring, wasting, disposing or in any other manner dealing with L.R 209/11858 pending the hearing and determination of the suit
- 4.The 1st and 2nd Defendants to bear the costs of the application
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land; applications under Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 40(1) and 51(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethics and Anti-Corruption Commission v Gathoni & 2 others (Environment & Land Case E256 of 2024) [2025] KEELC 683 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/683/eng@2025-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.