Kirigo & 9 others v Kanyi & 2 others (Environment & Land Case E022 of 2023) [2025] KEELC 4988 (KLR)
The bottom line
#The Malindi Environment and Land Court stopped an auction of the plaintiffs' properties and confirmed it—not the High Court—should hear the ownership dispute.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 2nd defendant's Notice of Preliminary Objection challenging the court's jurisdiction is merited
- 2.Whether the applicants are entitled to prayers 2 and 3 of the Notice of Motion dated 2 April 2025, namely a temporary injunction restraining the auction of the suit properties
Key legal issues
#Whether the preliminary objection on jurisdiction was sustainable
Dismissed; the dispute's substratum is ownership of the suit properties and the legality of the charge, which falls within the ELC's jurisdiction, and the objection rested on disputed facts rather than a pure point of law.
Applying Mukisa Biscuit, the court held that a preliminary objection must be a pure point of law not requiring ascertainment of facts. Here the objection required factual inquiry into ownership and purchasers' interests. Relying on Co-operative Bank v Kangethe Njuguna, disputes over mortgages, charges and statutory power of sale belong to the High Court, but the predominant issue here is ownership and purchasers' interest, which is the province of the ELC.
Whether a temporary injunction should issue restraining the auction
Granted; the applicants established a prima facie case based on their purchasers' interest and would suffer irreparable loss if the sale proceeded.
Applying the Giella v Cassman Brown conditions sequentially as affirmed in Kenya Commercial Finance Company Ltd v Afraha Education Society, the court found the applicants had demonstrated a genuine and arguable case founded on their purchasers' interest in the suit properties, and that an auction would destroy those rights in a manner not compensable by damages. The earlier refusal of injunctive relief was premised on the sale process not having been activated, which is no longer the case.
Legal principles established
#- A valid preliminary objection must raise a pure point of law and must not depend on contested facts requiring evidence.
- Where the predominant issue in a suit is ownership of land and the validity of a charge rather than the exercise of statutory power of sale, the Environment and Land Court, not the High Court, has jurisdiction.
- Jurisdiction is foundational; a court without jurisdiction must down tools immediately.
Court orders
#- 1.The 2nd defendant's Notice of Preliminary Objection dated 30 April 2025 is dismissed with costs
- 2.The Notice of Motion dated 2 April 2025 is granted with costs, including the temporary injunction restraining the 2nd defendant, its agents, assignees and employees from auctioning or offering for sale the suit properties
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment and Land Court Act, Section 13 (jurisdiction over disputes relating to ownership, possession and interests in land)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Therefore, the preliminary objection is dismissed with costs.
I need not elaborate further; the application submitted to this court on April 2, 2025, is granted with costs.
the predominant feature in the Plaintifis’ case will not necessarily be the exercise of Statutory Power of Sale by the 2nd Defendant-Respondent but rather ownership of the suit properties
Jurisdiction is everything. Without it, a court has no power to make one more step.
Issues in the judgment
#Case number of the suit is not stated anywhere in the judgment as provided.
Typography errors in the judgment, including 'Giella v Cassman Brown [973] EA' and repeated rendering of 'affidavit' as 'afidavit' and 'Plaintiffs' as 'Plaintifis'.
The prayer for costs is described as 'Prayer 3' of the motion, yet only prayers 2 and 3 are identified with the substantive relief, making the full relief sought unclear.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kirigo & 9 others v Kanyi & 2 others (Environment & Land Case E022 of 2023) [2025] KEELC 4988 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4988/eng@2025-06-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.