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ELCStruck OutNot stated in judgment· [2025] KEELC 1138 (KLR)

Gamaleldien v Binyenda & another (Environment & Land Case E361 of 2024) [2025] KEELC 1138 (KLR)

Environment and Land Court
27 February 2025
2,615 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff moved the court by Notice of Motion dated 30th August 2024 seeking, pending hearing of the suit, a temporary injunction restraining the Defendants from collecting rent from the suit premises known as 305 Pacha Gardens along Gitanga Road, and an order that tenants in occupation vacate. The suit itself sought a declaration that the Defendants fundamentally breached a sub-lease agreement dated 9th December 2023, refund of Kshs. 3,300,000 paid as deposit, rent and goodwill, payment of Kshs. 17,506,200 as projected loss of income, and damages for breach of contract. The Plaintiff alleged he paid Kshs. 3.3 million in cash and Kshs. 200,000 in electricity bills but never took possession. Both Defendants filed preliminary objections contending that the suit was filed contrary to Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, the claim being commercial and within the High Court's jurisdiction. The court, applying Mukisa Biscuits and Oraro v Mbaja, held the objections raised a pure point of law. Relying on Owners of Motor Vessel 'Lillian S', Samuel Kamau Macharia and Co-operative Bank of Kenya v Kangethe Njuguna, the court adopted the predominant-purpose test and found the dispute one of breach of contract for refund of money, not concerning the environment or the use, occupation of or title to land. The Plaintiff did not file submissions. The court upheld the preliminary objections and struck out the suit with costs to the Defendants.

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction over a claim for refund of deposit, rent and goodwill and damages for breach of a sub-lease agreement

Holding

The court lacks jurisdiction; the dispute is purely commercial and belongs to the High Court

Reasoning

The court derived its jurisdiction from Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. Applying the predominant-purpose test from the Co-operative Bank of Kenya case, the court found the Plaintiff neither took possession of the suit property nor sought possession. The reliefs sought were monetary - refund of Kshs. 3,300,000 and projected loss of income - and did not relate to the environment or to the use, occupation of or title to land, so the dispute fell outside the court's jurisdiction.

p. 7
02

Whether the Defendants' preliminary objections were proper preliminary objections on a pure point of law

Holding

Yes - the jurisdictional objection is a pure point of law capable of determining the suit without consideration of the merits

Reasoning

Relying on Mukisa Biscuits and Oraro v Mbaja, the court reaffirmed that a preliminary objection must be on a point of law founded on facts not in dispute, and must not be blurred with factual details liable to be contested or require evidence. The grounds in both preliminary objections condensed into a single issue - the court's jurisdiction - which the court held is a pure point of law that can dispose of the matter without entering the merits.

p. 5

Legal principles established

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  • Where the predominant purpose of a dispute is commercial (breach of contract and refund of money) and does not concern the environment or the use, occupation of or title to land, the Environment and Land Court lacks jurisdiction.

Court orders

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  1. 1.The Plaintiffs suit is struck out with costs to the Defendants
  2. 2.The Preliminary Objections raised by the Defendants are upheld

Authorities

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Legislation

  • Civil Procedure RulesOrder 40; Order 51
  • Civil Procedure ActSections 1A, 1B, 3A
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Environment and Land Court Act No. 3 of 2012Section 13
  • Land Registration ActNot specified (referred to in submissions)

Cases cited (7)

  • Mukisa Biscuits Manufacturing Company Limited vs West End Distributors
    (1969) E.A 696
  • Oraro Vs Mbaja
    (2005) eKLR
  • Owners of Motor Vessel ‘Lillian S’ Vs Caltex Oil (Kenya) Limited
    (1989) eKLR
  • Samuel Kamau Macharia & Another Vs Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others
    [2017] eKLR
  • DJC v BKL
    9 Civil Suit (E021 OF 2021) [KEHC 108189 (KLR)] (27 June 2022)(Ruling)
  • Bank of Africa Limited & 2 others v TSS Investment Limited & 2 others
    [2024] KECA 410 (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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Cite this brief

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Cite this brief

Caselaw, "Gamaleldien v Binyenda & another (Environment & Land Case E361 of 2024) [2025] KEELC 1138 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1138/eng@2025-02-27

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