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ELCDismissedMilimani Civil Misc. Application No. E598 of 2024 (Appeal)· [2025] KEELC 4839 (KLR)

Muchiri t/a Fancy Auctioneers & another v Thungutha & another (Environment and Land Appeal E058 of 2025) [2025] KEELC 4839 (KLR)

Environment and Land Court
26 June 2025
3,740 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed it can hear matrimonial property disputes involving land, and dismissed an attempt to strike out an appeal.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (G K Kemei, J) determines a preliminary objection by the 2nd Respondent, Mary Waithera Gikonyo, seeking to strike out the Appellants' appeal and accompanying Notice of Motion from the ruling of Hon. Lucy Ambasi in Milimani Civil Misc. Application No. E598 of 2024, which had joined her as an interested party, stayed and varied break-in orders granted for distress for rent, and directed reopening of the suit premises. The objection advanced three grounds: that the ELC lacks jurisdiction as the subject matter is matrimonial property under the Matrimonial Property Act, 2013; that the appeal is sub judice given pending High Court Matrimonial Cause E008 of 2024 under Section 6 of the Civil Procedure Act; and that the Appellants filed a further affidavit without leave contrary to Orders 42 Rule 27 and 51 Rule 14(3) of the Civil Procedure Rules. The Court held that the ELC has jurisdiction because the dispute relates to land and was in substance a distress-for-rent matter between the primary parties, the interested party having no standing to introduce a fresh matrimonial cause. The sub judice and further affidavit grounds were held not to be pure points of law capable of disposal on a preliminary objection, since they require ascertainment of facts or exercise of judicial discretion. The preliminary objection was dismissed with costs to the appellants.

Key legal issues

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01

Whether the ELC lacks jurisdiction because the subject matter is matrimonial property governed by the Matrimonial Property Act, 2013

Holding

The objection fails. The dispute concerns land (L.R. 10199/10 Karen) and the Lower Court application was for distress for rent, not a determination of matrimonial property rights; the ELC has concurrent jurisdiction over matrimonial property disputes that involve land, and the matrimonial question is already pending before the High Court.

Reasoning

The Court adopted the reasoning in Jane Wambui Ngeru v Timothy Mwangi Ngeru that no particular court is identified under the Matrimonial Property Act and jurisdiction is concurrent, with the ELC's limitation being only that the dispute must involve land. The dispute was for distress for rent between the primary parties, and the 2nd Respondent, as an interested party, could not introduce a new cause of action.

p. 5
02

Whether the appeal is sub judice given the pending High Court Matrimonial Cause E008 of 2024

Holding

The sub judice ground cannot succeed on a preliminary objection because determining it requires examination of pleadings and ascertainment of facts from the pending High Court suit.

Reasoning

Section 6 of the Civil Procedure Act bars proceedings where the matter in issue is directly and substantially in issue in a previously instituted suit, but determining overlap requires probing evidence and interrogating pleadings, taking the issue outside a pure point of law. The Court also noted an aggrieved party has a right of appeal, and an appeal is a separate proceeding that could not be filed within the pending suit.

p. 7
03

Whether the filing of a further affidavit without leave can ground a preliminary objection

Holding

No. It is not a pure point of law; it invites the Court's discretion to expunge or admit the document and must be raised by application.

Reasoning

The Court held that filing documents without leave calls for an exercise of judicial discretion, which excludes the matter from the scope of a preliminary objection under the Mukisa Biscuits definition. The 2nd Respondent must move the Court by application for determination of the impugned further affidavit.

p. 8

Legal principles established

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  • The Environment and Land Court has jurisdiction over matrimonial property disputes where they involve or relate to land, such jurisdiction being concurrent with the High Court
  • An interested party may not introduce a new cause of action or frame fresh issues between the principal parties
  • Whether a suit is sub judice cannot be determined on a preliminary objection because it requires probing of evidence and ascertainment of facts

Court orders

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  1. 1.Dismissal of the 2nd Respondent's Notice of Preliminary Objection
  2. 2.Costs of the Preliminary Objection to the appellants

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)
  • Environment and Land Court Act No. 19 of 2011Section 13(2) and 13(4)
  • Matrimonial Property Act, 2013Section 17
  • Marriage Act, 2014general
  • Civil Procedure Act, Cap 21Section 6
  • Civil Procedure RulesOrder 42 Rule 27; Order 51 Rule 14(3)

Cases cited (10)

  • Owners of Motor Vessel "Lilian S" v Caltex Oil (Kenya) Ltd
    (1989) KLR 1
  • Republic v Karisa Chengo & 2 Others
    (2017) eKLR
  • Mukisa Biscuit Manufacturers Ltd v West End Distributors Ltd
    (1969) E.A
  • Hassan Ali Joho & Another v Suleiman Said Shabal & 2 others
    Supreme Court Kenya Petition No. 10 of 2013 [2014] eKLR
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 others
  • Jane Wambui Ngeru v Timothy Mwangi Ngeru
    [2015] eKLR
  • SOCAF & Company Limited v John Maina Njoroge & 5 Others; Francis Ngau Musyoki (Interested Party)
    [2022] eKLR
  • Francis K. Muruatetu and Another v Republic & 5 Others
    (2016) eKLR
  • Henry Wanyama Khaemba v Standard Chartered Bank Ltd & Another
    (2014) eKLR
  • Margaret Wachu Karuri v John Waweru Ribiro
    (2021) eKLR
On appeal from
Subordinate Court (Chief Magistrate's Court, Milimani)
Civil Misc. Application No. E598 of 2024
Jurisdiction invoked
Article 162(2) of the Constitution; Section 13(2) and (4) of the Environment and Land Court Act No. 19 of 2011 (appellate jurisdiction over subordinate courts in land matters)

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, "Muchiri t/a Fancy Auctioneers & another v Thungutha & another (Environment and Land Appeal E058 of 2025) [2025] KEELC 4839 (KLR)", Case Analysis (2025). Milimani Civil Misc. Application No. E598 of 2024 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4839/eng@2025-06-26

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