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ELCStruck OutELC Case of 2024 (Kwale), Suit arising from Plaint dated 3rd December 2024· [2025] KEELC 5840 (KLR)

Fuks v Cotswold Estate Limited (Environment and Land Case E078 of 2024) [2025] KEELC 5840 (KLR)

Environment and Land Court
16 June 2025
20,133 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~81 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a Diani land dispute suit because it had already been decided and rent tribunals, not the ELC, handle controlled tenancy evictions.

What this practically means

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Executive summary

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Jurgen Fuks, operator of Shakatak Discotheque on two acres of Kwale/Diani/63, sued Cotswold Estate Limited seeking to restrain eviction following a termination notice dated 17th October 2024. He contended the Defendant's lease had expired by effluxion of time in 2003, that the land reverted to the Government, and that no landlord-tenant relationship existed. The Defendant replied that its lease had been extended for 50 years from 1st May 1999, as confirmed by a Certificate of Lease issued in July 2024 and by the judgment of Hon. Lady Justice A.E. Dena of 1st December 2023 in Kwale ELC Petition No. 4 of 2021, and raised a preliminary objection arguing res judicata and lack of jurisdiction given a pending BPRT Reference (Mombasa BPRT Case No. E283 of 2024). It also sought referral of the Plaintiff's advocate to the DCI and Disciplinary Committee for alleged perjury. The Court framed six issues, applied Mukisa Biscuit on preliminary objections, and held that the ownership question was conclusively determined in the prior Petition, rendering the suit res judicata. It further held that the parties were in a controlled tenancy and that the BPRT, under Section 12(4) of Cap 301, has jurisdiction to determine the dispute and issue injunctive orders, so the ELC had to down its tools. The Court declined to rule on the injunction, deferred the perjury allegations to statutory bodies in the interest of exhaustion, and struck out both the application and the suit, awarding the Defendant costs of both.

Key legal issues

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01

Whether res judicata can ground a preliminary objection

Holding

The Court found the res judicata objection to be a valid preliminary objection and sustained it, holding that the issue of ownership of Kwale/Diani/63 was conclusively determined in Kwale ELC Petition No. 4 of 2021

Reasoning

The Court identified the prior Petition between the same parties over the same property, decided by the same competent court on 1st December 2023, which found the Defendant's lease extended for 50 years from 1st May 1999. That judgment had not been set aside or varied, and returning to the same court by plaint to alter it was gross misconduct. The Court applied the four-limb test of res judicata under Section 7 of the Civil Procedure Act.

p. 27
02

Whether the ELC had jurisdiction given the BPRT proceedings on the tenancy notice

Holding

The ELC lacked jurisdiction because the parties were in a controlled tenancy and the BPRT is vested with jurisdiction over such disputes, including injunctive relief

Reasoning

The tenancy, being oral, was a controlled tenancy under Section 2 of Cap 301. Section 12(4) empowers the Tribunal to investigate any complaint relating to a controlled tenancy and make orders it deems fit, including injunctive orders. The Court adopted the Court of Appeal position and Karume on following prescribed procedures, held it would be overstepping the Tribunal's mandate, and downed its tools.

p. 30
03

Whether the Plaintiff's Notice of Motion met the injunction threshold

Holding

The Court made no determination on the merits of the injunction application, having found res judicata and lack of jurisdiction

Reasoning

The Court reasoned that, the preliminary objection having succeeded on res judicata and jurisdiction, it could not proceed to assess the Giella v Cassman Brown criteria or the balance of convenience; the Notice of Motion was accordingly struck out on those preliminary grounds alone.

p. 30
04

Whether the Plaintiff's advocate should be referred for investigation for perjury and subornation

Holding

The Court declined to make referral orders, reserving its comments and directing the Defendant to the statutory bodies

Reasoning

Although the Court described the matters as extremely serious, it chose, in the interest of the doctrine of exhaustion and professional decorum, to leave the allegations to the Advocates Disciplinary Committee, the Advocates Disciplinary Tribunal or the EACC rather than exercise any special jurisdiction itself at that stage.

p. 32

Legal principles established

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  • A preliminary objection must be raised on a pure point of law; it cannot be raised where facts have to be ascertained or judicial discretion exercised
  • A preliminary objection on res judicata may be sustained where the previous suit was between the same parties, litigated under the same title and was heard and finally decided by a competent court
  • The Business Premises Rent Tribunal has jurisdiction to entertain disputes over controlled tenancies and to issue injunctive orders under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act
  • Where a statute prescribes a procedure for the redress of a grievance, that procedure should be strictly followed

Court orders

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  1. 1.The Notice of Preliminary Objection dated 3rd February, 2025 is partially found to have merit, sustained on grounds of res judicata and lack of jurisdiction
  2. 2.The Notice of Motion application dated 3rd December, 2024 is struck out for breaching the doctrine of res judicata and for lack of jurisdiction
  3. 3.The suit filed under the Plaint dated 3rd December, 2024 is struck out for lack of merit
  4. 4.The Court reserves its comments on the alleged perjury and subornation by the Plaintiff's Advocate, advising referral to appropriate statutory bodies including the Advocates Disciplinary Committee, the Advocates Disciplinary Tribunal or the EACC
  5. 5.Costs of the Notice of Motion application dated 3rd December, 2024 and the Notice of Preliminary Objection dated 3rd February, 2025 awarded to the Defendant
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162 of the Constitution and Section 13 of the ELC Act; application brought under Order 40 Rules 1, 2, 3 and 4 of the Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21

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, "Fuks v Cotswold Estate Limited (Environment and Land Case E078 of 2024) [2025] KEELC 5840 (KLR)", Case Analysis (2025). ELC Case of 2024 (Kwale), Suit arising from Plaint dated 3rd December 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5840/eng@2025-06-16

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