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ELCDismissednot stated in extract· [2025] KEELC 5384 (KLR)

Shishili Two Thousand Investment Limited v Gichuhi & 2 others (Environment and Land Case E128 of 2024) [2025] KEELC 5384 (KLR)

Environment and Land Court
17 July 2025
EME. K. Makori
1,299 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Malindi dismissed a preliminary objection arguing the court lacked jurisdiction over a land charge dispute, because the pleadings did not support it.

What this practically means

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Executive summary

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The 2nd Defendant filed a preliminary objection dated December 18, 2024 seeking dismissal of the Plaintiff's suit against it with costs, contending that the Environment and Land Court lacks jurisdiction over disputes concerning charges and mortgages, which fall within the High Court's civil jurisdiction. The Plaintiff opposed, alleging a sale transaction with the 1st Defendant in which the 1st Defendant unlawfully transferred the land to himself and charged it to the 2nd Defendant without completing payment of the purchase price, entitling the Plaintiff to rescind the sale and recover the land. The 2nd Defendant was joined as a Chargee. The PO was canvassed by written submissions. The court applied the Mukisa Biscuit principles - that a PO must raise a pure point of law on facts taken as pleaded - and the Owners of the Motor Vessel 'Lillian S' dictum on jurisdiction. It accepted counsel's submission, supported by Bank of Africa v TSS Investment and Co-operative Bank v Kangethe Njuguna, that charge and mortgage disputes ordinarily lie with the High Court. However, on reviewing the pleadings, no charge documents had been filed by either party to demonstrate that the charge was legally created, and the Plaintiff asserted that its ownership rights had been circumvented by the charge following non-payment of the purchase price. The court therefore found the PO was filed prematurely and that the jurisdictional point could not be inferred from the materials before it. The PO dated December 18, 2024 was dismissed with costs by E. K. Makori J, delivered virtually at Malindi on July 17, 2025. The main suit was not determined at this stage.

Key legal issues

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Whether the preliminary objection raising lack of jurisdiction over charge matters is sustainable

Holding

The PO is not sustainable because the alleged defect cannot be established from the pleadings and materials on record at this early stage.

Reasoning

While the court accepts that disputes concerning charges and mortgages belong to the High Court per Bank of Africa v TSS Investment and Co-operative Bank v Kangethe Njuguna, a PO must raise a pure point of law with all facts pleaded deemed correct. Here no charge documents were placed on record and the Plaintiff asserts rescission of the sale for non-payment of the purchase price, so the jurisdictional issue cannot be inferred from the materials before the court.

p. 3

Legal principles established

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  • Matters related to charges, mortgages and collection of dues and rents fall within the jurisdiction of the High Court, not the ELC, but whether a suit is founded solely on a charge must be apparent from the pleadings and materials before the court.

Court orders

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  1. 1.The Preliminary Objection dated December 18, 2024 is dismissed
  2. 2.The 2nd Defendant to pay costs of the preliminary objection
Jurisdiction invoked
Jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution and the Environment and Land Court Act (implied from the dispute over ELC jurisdiction vis-à-vis the High Court)

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, "Shishili Two Thousand Investment Limited v Gichuhi & 2 others (Environment and Land Case E128 of 2024) [2025] KEELC 5384 (KLR)", Case Analysis (2025). not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5384/eng@2025-07-17

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