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ELCPartially AllowedNot stated in judgment· [2025] KEELC 5673 (KLR)

Nyaga & another v Kibe & another (Environment and Land Case E022 of 2023) [2025] KEELC 5673 (KLR)

Environment and Land Court
29 July 2025
NMN. A. Matheka
1,598 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This first-instance ruling of the Environment and Land Court at Machakos, delivered by N.A. Matheka J on 29 July 2025, determined a preliminary objection raised by the 2nd Defendant on eight grounds: non-service of summons, limitation under the Limitation of Actions Act, misjoinder and non-joinder of Embakasi Ranching Co. Ltd and John Jonathan Mwalili, lack of territorial and pecuniary jurisdiction, the court's unsuitability for company matters, the Plaintiff's alleged lack of locus standi, absence of privity of contract, and laches by the Plaintiffs. The court first set out the classic definition of a preliminary objection from Mukisa Biscuits and the Attorney General v Andrew Mwaura Githinji formulation, and held that the objection was properly brought. Relying on Owners of the Motor Vessel Lillian S v Caltex Oil and Samuel Kamau Macharia v Kenya Commercial Bank, the court reaffirmed that jurisdiction flows from the Constitution and statute and cannot be conferred by parties. Finding that the suit property, Nairobi/Block 105/673 and Nairobi/Block 105/674, is situated in Nairobi County, which is served by the Milimani Environment and Land Court, and applying sections 12 and 13 of the Civil Procedure Act, the court held it lacked territorial jurisdiction. It declined to determine the other grounds of the objection and ordered the suit transferred to Milimani ELC, with costs in the cause.

Key legal issues

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01

Territorial jurisdiction of the Machakos ELC over land situated in Nairobi

Holding

The Machakos ELC lacks territorial jurisdiction; the correct forum is the Milimani Environment and Land Court where the suit property is located.

Reasoning

The suit property comprises two parcels situated in Nairobi County, which is not disputed. Section 12 of the Civil Procedure Act requires suits relating to immovable property to be filed where the property is situated. Nairobi County is served by the Milimani ELC. Since jurisdiction is a threshold matter, the court declined to determine the remaining grounds of the preliminary objection and transferred the suit.

p. 4
02

Whether the remaining grounds of the preliminary objection should be determined

Holding

Once lack of territorial jurisdiction is established, the court cannot determine the other points raised in the preliminary objection.

Reasoning

Having found the court without territorial jurisdiction, the court's jurisdiction ends there; it cannot pronounce on limitation, joinder, locus standi, privity or laches. Those issues fall to be dealt with by the court with jurisdiction, to which the matter is transferred.

p. 4
03

Timeliness of raising a preliminary objection

Holding

A preliminary objection may be raised at any time before the final conclusion of the case, though ideally at the earliest opportunity.

Reasoning

The court stated the trite position that preliminary objections can be brought at any time before the final conclusion of the case, ideally at the earliest opportunity to allow smooth management of the main dispute, and found the 2nd Defendant's objection was properly before the court.

p. 2

Legal principles established

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  • A court's jurisdiction flows from the Constitution or legislation and cannot be conferred by parties
  • Suits relating to immovable property should be instituted in the court within whose jurisdiction the property is situate

Court orders

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  1. 1.Transfer of the matter to the Environment and Land Court Milimani for hearing and determination
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Limitation of Actions ActCap 22
  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSection 13(2)
  • Civil Procedure ActSections 12 and 13 (Cap 21)

Cases cited (4)

  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Attorney General & Another v Andrew Mwaura Githinji & another
    (2016) eKLR
  • Owners of the Motor Vessel M.V Lillian S. v Caltex Oil (K) Limited
    (1989) KLR 1
  • Samuel Kamau Macharia and Another v Kenya Commercial Bank Limited & 2 others
    (2012) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya 2010 and Section 13(2) of the ELC Act

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, "Nyaga & another v Kibe & another (Environment and Land Case E022 of 2023) [2025] KEELC 5673 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5673/eng@2025-07-29

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