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ELCDismissed· [2025] KEELC 984 (KLR)

Muinde v Mwania & 2 others (Environment and Land Case Civil Suit E052 of 2024) [2025] KEELC 984 (KLR)

Environment and Land Court
4 March 2025
AKA. Y. Koross
3,183 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The defendants filed a preliminary objection dated 15/07/2024 seeking to strike out the plaintiff's suit with costs, on seven grounds: lack of jurisdiction under Article 165(3) and (5) of the Constitution and Section 17 of the Matrimonial Property Act; contravention of Sections 6(2) and 7(5) and (6) of that Act; registration of the suit property in the name of Joseph Mwania Kilukumi, a non-party; the plaintiff's lack of standing to claim her father-in-law's property; and an alleged conflict of interest by the plaintiff's counsel. The plaintiff filed no opposing documents and the PO was canvassed by written submissions. Adopting the Mukisa Biscuit tests, the court found only grounds (a) to (d), which raise jurisdictional questions, were pure points of law; grounds (e), (f) and (g) required ascertainment of facts and were dismissed. On jurisdiction, the court held that the ELC's jurisdiction flows from Article 162(2)(b) of the Constitution and Section 13 of the ELC Act; that the ELC has concurrent jurisdiction with the High Court over matrimonial property; and that it will assume jurisdiction where the dispute is predominantly about the use, occupation and title to land. The claim, involving alleged trespass, beacons, billboards and dealings with land parcel Mavoko Town Block 2/44, was held to fall within the court's jurisdiction. The pre-2013 Court of Appeal decision in Peter Ndungu Njenga was distinguished as predating the Matrimonial Property Act. The court dismissed grounds (e), (f) and (g), referred the matter to court-annexed mediation, issued status quo orders on the registration, occupation and usage of the suit property pending determination of the plaintiff's notice of motion dated 8/07/2024, and directed a mention on 3rd June 2025. No costs order was made.

Key legal issues

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01

Whether the grounds of the preliminary objection met the Mukisa Biscuit threshold

Holding

Only grounds (a), (b), (c) and (d), which touch on jurisdiction, are pure points of law; grounds (e), (f) and (g) require ascertainment of facts and were dismissed.

Reasoning

The court applied the three tests in Mukisa Biscuit: a PO must be a pure point of law argued on assumed correctness of pleaded facts, must not require ascertaining facts or exercising discretion, and must be capable of disposing of the suit. Jurisdictional grounds satisfy this; grounds on title registration, standing and conflict of interest require evidence and therefore fail.

p. 3
02

Whether the ELC has jurisdiction over a matrimonial property dispute between spouses

Holding

The ELC has concurrent jurisdiction with the High Court and magistrates' courts over matrimonial property where the dispute relates to use, occupation and title to land; the claim here is predominantly a land dispute involving alleged trespass and spousal consent to dealings in land.

Reasoning

Jurisdiction flows from Article 162(2)(b) of the Constitution and Section 13 of the ELC Act. The court distilled four principles from precedent: concurrent jurisdiction with the High Court; assumption of jurisdiction where the dispute is on use, occupation and title to land; application of the predominant test; and refusal to exercise jurisdiction where parties are undergoing or have concluded divorce. The plaintiff, though married and separated, seeks reliefs concerning land and alleged trespass, so the predominant dispute is a land dispute within the court's jurisdiction.

p. 7
03

The weight of Peter Ndungu Njenga v Sophia Watiri Ndungu relied on by the defendants

Holding

The Court of Appeal decision was rendered before the Matrimonial Property Act and is inconsequential to this case.

Reasoning

The defendants relied on the 2000 Court of Appeal decision to contend the ELC lacked jurisdiction. The court distinguished it on the basis that it predates the Matrimonial Property Act, 2013, whose provisions (notably Sections 6, 7 and 17 and the Matrimonial Property Rules) now govern the forum for matrimonial property claims and were interpreted in the later ELC authorities discussed.

p. 7

Legal principles established

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  • For a preliminary objection to succeed it must raise a pure point of law, on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained or judicial discretion is sought.
  • The ELC has concurrent jurisdiction with the High Court over matrimonial property disputes where the dispute touches on the use, occupation and title to land, applying the predominant test.
  • Section 17 of the Matrimonial Property Act does not confer jurisdiction on a particular court.

Court orders

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  1. 1.Grounds (e), (f) and (g) of the PO dated 15/07/2024 are hereby dismissed.
  2. 2.This matter is hereby referred to court-annexed mediation.
  3. 3.Pending hearing and determination of the notice of motion dated 8/07/2024 and/or settlement of the dispute, an order of status quo on the registration status of land reference no. Mavoko Town Block 2/44 or the registration status of subdivisions thereof (if any) be maintained.
  4. 4.Pending hearing and determination of the notice of motion dated 8/07/2024 or settlement of the dispute, an order of status quo on the occupation and or usage of land reference no. Mavoko Town Block 2/44 or the subdivisions thereof (if any) be maintained.
  5. 5.Matter to be mentioned before this court on 3rd June, 2025.

Authorities

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Legislation

  • Constitution of KenyaArticle 165(3) and (5)
  • Constitution of KenyaArticle 162(1), (2)(b), (3) and (4)
  • Constitution of KenyaArticles 42, 69 and 70
  • Environment and Land Court ActSection 13(1)-(5)
  • Matrimonial Property ActSections 2, 6(1), 6(2), 7 and 17
  • Matrimonial Property RulesRules 5 and 6
  • Land Registration ActSection 101
  • Civil Procedure ActSection 3A
  • Law Society of Kenya Code of Standards of Professional Practice and Ethical ConductRule 6 paragraphs 95 and 99

Cases cited (7)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Owners of the Motor Vessel 'Lilian S' v Caltex Oil (Kenya) Limited
    [1989] KLR
  • Samwel Kamau Macharia v Kenya Commercial Bank & 2 Others
    Civil Application No. 2 of 2011
  • EMW v RMK
    [2022] KEELC 1497 (KLR)
  • Jane Wambui Ngeru v Timothy Mwangi Ngeru
    [2015] KEELC 657 (KLR)
  • RW v JMN
    [2022] KEELC 1843 (KLR)
  • Peter Ndungu Njenga Vs Sophia Watiri Ndungu
    [2000] KECA 202 (KLR)
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Muinde v Mwania & 2 others (Environment and Land Case Civil Suit E052 of 2024) [2025] KEELC 984 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/984/eng@2025-03-04

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