Muthengi t/a Mutisya & Company Advocates v Mbuvi & another (Miscellaneous Application E007 of 2023) [2025] KEELC 4901 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled it cannot tax an advocate's fees for a company shareholding dispute; such matters belong to the High Court.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC has jurisdiction to tax an Advocate/Client Bill of Costs arising from proceedings before the High Court concerning shareholding in family companies
The Court has no jurisdiction; the matter falls outside Article 162(2)(b) and Section 13 of the ELC Act as the services related to shares and shareholding, not proprietary rights in land
The Court traced its jurisdiction to Article 162(2)(b) and Sections 4 and 13 of the ELC Act, which confine it to disputes relating to environment and land. Relying on the Peter Kangethe decision, it noted that contractual disputes are within ELC jurisdiction only if incidental to the use of land. The instructions here concerned shares in family companies valued at Kshs 2 billion, with no proprietary land rights involved. Taxation of such fees falls within the High Court's unlimited original jurisdiction in civil matters.
Whether the Preliminary Objection was properly raised as a pure point of law
Yes, the jurisdictional objection was a pure point of law
The Court applied the Mukisa Biscuits test and allied authorities, holding that a preliminary objection must rest on a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised. It was satisfied the objection to jurisdiction met this threshold and dealt with it first, as jurisdiction is everything.
Whether the intended Interested Parties should be joined
Not determined, as the point was rendered moot by the lack of jurisdiction
The joinder application was dependent on the fate of the Bill of Costs. Since the Court found it lacked jurisdiction over the Bill of Costs, it declined to engage with the joinder application, holding that a court without jurisdiction cannot make any further step.
Legal principles established
#- Where a court lacks jurisdiction it must down its tools and take no further step in the matter
- The jurisdiction to tax fees for services relating to corporate shareholding lies with the High Court, not the ELC
- A preliminary objection must be a pure point of law not dependent on ascertaining facts
Court orders
#- 1.The Preliminary Objection filed by the 2nd Respondent is upheld as merited
- 2.The other two applications (the joinder application and the Bill of Costs) are not attended to as the Court lacks jurisdiction and downs its tools
- 3.Costs are awarded to the Respondents in the Preliminary Objection
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; Environment and Land Court Act, No. 19 of 2011, Sections 4 and 13
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthengi t/a Mutisya & Company Advocates v Mbuvi & another (Miscellaneous Application E007 of 2023) [2025] KEELC 4901 (KLR)", Case Analysis (2025). Advocate/Client Bill of Costs dated 10/07/2023 with Preliminary Objection dated 29/11/2023 and Notice of Motion dated 3/04/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4901/eng@2025-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.