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ELCDismissedNot stated in the judgment as provided· [2025] KEELC 6208 (KLR)

Kenya Union of Domestic Hotels, Educational Institutions, Hospitals and Allied Workers (KUDHEIHA) & 4 others v Management of Tea Hotel & 3 others; Onsongo t/a Hegeons Auctioneers (Interested Party) (Environment and Land Constitutional Petition E003 of 2022) [2025] KEELC 6208 (KLR)

Environment and Land Court
25 September 2025
7,420 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Kericho Environment and Land Court dismissed an attempt to throw out a land dispute on procedural grounds, meaning the landowners' case will now proceed to a full hearing.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho (L. A. Omollo, J) determines a Notice of Preliminary Objection dated 17th February 2025 filed by the 1st, 2nd, 3rd, 10th and 11th Respondents against a Petition dated 8th November 2022 and a Notice of Motion dated 15th November 2024 (amended 22nd November 2024). The Petitioners, a trade union and purchasers of land parcel LR No. Kericho Municipality Block 4/295, seek declarations of constitutional violations and damages arising from trespass and from proceedings in Kericho ELRC Cause No. 10 of 2016, in which a ruling of 18th January 2022 set aside the sale of the parcel to them. The objection raised four grounds: sub judice, lack of jurisdiction, that the matter is an employment dispute, and lack of locus standi of the 1st Petitioner and Ruth Ngelechei. The Court applied the Mukisa Biscuit/Oraro v Mbaja threshold that a preliminary objection must be a pure point of law. It held that sub judice requires evaluation of facts and pleadings not before it; that the ELC has jurisdiction under Article 162(2)(b) and Section 13 of the Environment and Land Court Act because the Petition raises land-related claims; that although the matter has ELRC history, the issues are land issues; and that locus standi should be canvassed at the hearing. The preliminary objection was dismissed with costs. The Petition and application remain pending for hearing on the merits.

Key legal issues

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01

Whether sub judice can be raised as a preliminary objection

Holding

No - a plea of sub judice requires evaluation of facts and the pleadings in the previously instituted suit, so it fails the test of a pure point of law

Reasoning

Section 6 of the Civil Procedure Act prohibits proceeding where the matter in issue is directly and substantially in issue in a previously instituted suit. But to determine whether the issues in Kericho ELRC Cause No. 10 of 2016 are the same as those in the Petition, the Court would have to consider pleadings not placed before it and interrogate the prayers sought. Following Margaret Wachu Karuri v John Waweru Ribiro, ascertaining such facts takes the issue outside the realm of a preliminary objection.

p. 12
02

Whether the Environment and Land Court has jurisdiction over the Petition

Holding

Yes - the Petition seeks declarations over constitutional rights relating to land and compensation for trespass, disputes the ELC is constitutionally mandated to determine

Reasoning

The Court is established under Article 162(2)(b) and Section 13 of the Environment and Land Court Act confers jurisdiction over disputes relating to title, use and occupation of land, including power to grant declarations and damages. Although the matter has a history in the ELRC, the issues raised in the Petition relate to land, and the merits of the prayers fall for determination at the hearing of the Petition.

p. 16
03

Whether the 1st Petitioner and Ruth Ngelechei have locus standi

Holding

The question of locus standi cannot be determined on a preliminary objection and should be canvassed at the hearing of the Petition

Reasoning

Citing Otolo Margaret Kanini, locus standi is the right to bring an action before a court. The 1st Petitioner contends it received and distributed the proceeds of the sale of the suit parcel to former workers, and that Ruth Ngelechei is a branch secretary with capacity to swear affidavits. Considering the totality of the circumstances, the Court found the issue requires fuller ventilation at the hearing rather than summary determination.

p. 16

Legal principles established

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  • A preliminary objection must be a pure point of law and cannot be raised where facts have to be ascertained or where it derives from factual information to be tested by evidence

Court orders

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  1. 1.The 1st, 2nd, 3rd, 10th and 11th Respondents' Preliminary Objection dated 17th February 2025 is dismissed
  2. 2.The 1st, 2nd, 3rd, 10th and 11th Respondents to bear the costs of the Preliminary Objection

Authorities

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Legislation

  • Constitution of KenyaArticles 162(2)(b), 22, 258, 260, 40(1), 47(1) and (2), 48, 159(2)(b), 50, 42, 69
  • Environment and Land Court ActSection 13
  • Civil Procedure ActSections 6 and 27
  • Land Registration ActSections 25, 26 and 87
  • Fair Administrative Actions ActSection 4(1)(2)(3)
  • Employment and Labour Relations ActSection 12

Cases cited (11)

  • Kenya National Commission on Human Rights vs Attorney General; IEBC & 16 Others (Interested Parties) (Advisory Opinion Reference 1 of 2017)
    [2020] KESC 54 (KLR)
  • Law Society of Kenya vs Commissioner of Lands & 2 Others
    [2001] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    [1969] EA 696
  • Maggie Mwauki Mtalaki vs Housing Finance Company of Kenya
    [2015] eKLR
  • Kiambu Dandora Farmers Co. Ltd v Waindi & 12 others
    [2024] KEELC 1348 (KLR)
  • Samson Mariko Makubo v Joseph Mwita Ragiti & 4 others
    [2020] KEELC 3764 (KLR)
  • Oraro vs Mbaja
    [2005] eKLR
  • Margaret Wachu Karuri v John Waweru Ribiro
    [2021] KEELC 2793 (KLR)
  • Owners of Motor Vessel "Lilian S" vs. Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Ushago Diani Investment Limited v Abdulwahab
    (Environment & Land Case 12 of 2023) [2023] KEELC 20213 (KLR)
  • Otolo Margaret Kanini & 16 others v Attorney General & 4 others
    [2022] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya and Section 13 of the Environment and Land Court 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, "Kenya Union of Domestic Hotels, Educational Institutions, Hospitals and Allied Workers (KUDHEIHA) & 4 others v Management of Tea Hotel & 3 others; Onsongo t/a Hegeons Auctioneers (Interested Party) (Environment and Land Constitutional Petition E003 of 2022) [2025] KEELC 6208 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6208/eng@2025-09-25

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