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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether sub judice can be raised as a preliminary objection
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
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.
Whether the Environment and Land Court has jurisdiction over the Petition
Yes - the Petition seeks declarations over constitutional rights relating to land and compensation for trespass, disputes the ELC is constitutionally mandated to determine
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.
Whether the 1st Petitioner and Ruth Ngelechei have locus standi
The question of locus standi cannot be determined on a preliminary objection and should be canvassed at the hearing of the Petition
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.
Legal principles established
#- 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
#- 1.The 1st, 2nd, 3rd, 10th and 11th Respondents' Preliminary Objection dated 17th February 2025 is dismissed
- 2.The 1st, 2nd, 3rd, 10th and 11th Respondents to bear the costs of the Preliminary Objection
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.