Wambui v Frann Investment Limited & 2 others (Environment and Land Miscellaneous Application E038 of 2025) [2025] KEELC 5573 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection raises pure points of law
Yes - the objection raises pure points of law argued on assumed pleaded facts
Applying Mukisa Biscuit Manufacturers as restated in Hassan Ali Joho, the court defined a preliminary objection as a pure point of law which cannot be raised if facts need ascertainment. It found the present objection satisfied that test.
Whether a Miscellaneous Application is a proper way of initiating a suit seeking substantive final orders
No - the injunction application could not be brought in a miscellaneous application without an anchoring suit
Section 19 of the Civil Procedure Act and Order 3 Rule 1 prescribe the manner of instituting suits. Relying on Rockland Kenya, Witmore Investment and Scope Telematics, the court held that the manner of initiating a suit is not a mere technicality but the basis of jurisdiction. Order 40 Rule 1 requires an injunction application to be anchored in a suit.
Whether the Court lacks jurisdiction over the dispute
Yes - the dispute relates to a controlled tenancy reserved for the Business Premises Rent Tribunal
The Applicant's cause of action is the eviction and re-entry notices concerning a leasehold tenancy. Under Section 2(1) of Cap 301 an unwritten tenancy is a controlled tenancy and complaints belong to the Tribunal under Section 12(4). The ELC's role is appellate under Section 15(1) of that Act, so the Tribunal is the first port of call.
Whether the suit should be struck out for want of territorial jurisdiction
No - territorial jurisdiction is not a ground for striking out; transfer is the remedy
Under Section 12 of the Civil Procedure Act suits over immovable property should be filed where the property is situated, but Sections 3 and 26 of the ELC Act empower the Court to transfer suits between ELC stations rather than strike them out.
Whether the application is sub judice and an abuse of process given Mombasa BPRT/E078/2025
The sub judice point cannot be determined as a preliminary objection as it requires probing of evidence
Relying on Henry Wanyama Khaemba and Margaret Wachu Karuri, the court held that establishing whether issues are directly and substantially in issue in the Tribunal matter requires ascertainment of facts, which falls outside the scope of a preliminary objection.
Legal principles established
#- An application for a temporary injunction must be anchored in a properly instituted suit; substantive or final orders cannot be granted in a miscellaneous application
- Disputes relating to controlled tenancies under Cap 301 fall within the jurisdiction of the Business Premises Rent Tribunal, not the ELC at first instance
- Territorial jurisdiction is not a basis for striking out a suit within the ELC's jurisdiction; the proper remedy is transfer
- A preliminary objection on sub judice cannot succeed because determining sub judice requires probing of evidence and facts
Court orders
#- 1.The Respondents' Preliminary Objection dated 4/03/2025 is upheld and allowed
- 2.The Applicant's Notice of Motion is dismissed with costs to the Respondents
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya; Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wambui v Frann Investment Limited & 2 others (Environment and Land Miscellaneous Application E038 of 2025) [2025] KEELC 5573 (KLR)", Case Analysis (2025). Miscellaneous Application dated 21/02/2025 (Respondent's Preliminary Objection dated 4/3/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5573/eng@2025-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.