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ELCDismissedPetition dated 17th May, 2021· [2025] KEELC 6868 (KLR)

Kubai Investments Limited v Attorney General Sued on Behalf of the Ministry of Lands & 10 others (Environment and Land Petition E019 of 2021) [2025] KEELC 6868 (KLR)

Environment and Land Court
13 October 2025
MCMBOGO C.G.
3,806 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a land dispute because the real fight was over company shares, which it has no power to decide.

What this practically means

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Executive summary

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The petitioner, Kubai Investment Ltd, petitioned the Environment and Land Court seeking a permanent injunction, cancellation of the title held by Edifice Real Investment Limited over LR No. 209/18886 (original 209/7437), rectification of the register, declarations that the property is private land, damages, and alternatively compensation. The petitioner's case was that the late Fredrick Polwarth Kubai transferred his shares in Tourist Paradise Limited (the 9th respondent) to it, and that a later transfer of shares to the 10th respondent was fraudulent and unlawful, triggering the chain of illegal dealings through which the suit property was charged, sold and ultimately registered in favour of the 6th respondent and later revoked. The 1st, 3rd and 4th respondents objected to jurisdiction under Article 162(2) of the Constitution and section 13 of the Environment and Land Court Act, and contended the property is public land that reverted to the government on expiry of the casino agreements. The 2nd, 5th, 6th, 7th, 8th, 9th, 10th and 11th respondents did not respond. The court framed two substantive issues: jurisdiction and entitlement to the prayers. Applying the dominant-issue test from the Owners of Motor Vessel 'Lillian S' and the Mbaluka case, the court found the predominant dispute concerns the internal share dealings of the 9th respondent, not title or tenure of land, and that the petition read as an ordinary civil claim with no precision on the constitutional provisions allegedly violated. The court held it lacked jurisdiction and dismissed the petition, ordering each party to bear their own costs.

Key legal issues

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01

Jurisdiction of the ELC over a petition whose predominant issue is the alleged fraudulent transfer of shares

Holding

The court lacks jurisdiction; the dispute revolves around internal dealings of the affairs of the 9th respondent, not title or tenure of land.

Reasoning

The petitioner's own case is that it lost control of the suit property through an allegedly fraudulent share transfer to the 10th respondent. That issue is a company-law/internal-affairs dispute that must first be resolved before any question of interest in the land arises. Applying the dominant-issue test, the predominant issue is not a land dispute within section 13 of the ELC Act, so the court must down its tools.

p. 7
02

Whether the petitioner proved entitlement to the reliefs sought

Holding

Not determined, as the court dismissed the petition for want of jurisdiction.

Reasoning

Because the jurisdictional question was fatal to the petition, the court made no findings on the merits of the alleged fraud, the validity of the 6th respondent's title, or the public/private character of the land. The petitioner also did not state with precision how constitutional provisions were violated; the petition read as an ordinary civil claim.

p. 7

Legal principles established

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  • In construing whether the ELC has jurisdiction in a matter, the consideration must be the dominant issue in the dispute and whether it relates to the environment and the use and occupation of, and title to, land.
  • A court cannot arrogate to itself jurisdiction exceeding that conferred by the Constitution or written law.

Court orders

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  1. 1.The petition dated 17th May, 2021 is dismissed.
  2. 2.Each party to bear their own costs.

Authorities

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Legislation

  • Constitution of KenyaArticles 10(1), 22(2)(b) and (c), 23(1) and (3), 40(1) and (3), 162(2)(b), 165(3)(b), 258
  • Environment and Land Court ActSection 13(2)
  • Companies Act, Cap 486 (repealed)Section 81(3)
  • Betting Lotteries and Gaming Act Cap 131

Cases cited (11)

  • Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited
    [1989] KLR 1
  • Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & Others
    [2012] eKLR
  • Joel Kyatha Mbaluka t/a Mbaluka & Associates Advocates v Daniel Ochieng Ogola t/a Ogola Okello & Co Advocates
    [2019] eKLR
  • Arthi Highway Developers Ltd v West End Butchery Limited & 6 Others
    [2015] eKLR
  • Ruben & Another v Great Fingall Consolidated
    (1906) A.C 439
  • Dina Management Limited v County Government of Mombasa & 5 others
    [2023] KESC 30 (KLR) / [2021] KECA 503 (KLR)
  • Sehmi & another v Tarabana Company Limited & 5 others
    [2025] KESC 21 (KLR)
  • Dr. Joseph Arap Ngok v Justice Moijo ole Keiwua & 5 others
    Civil Appeal No. Nai 60 of 1997
  • Charles Muturi Macharia & 6 others v The Standard Group and 4 others
    Petition No. 13 of 2022
  • City of Vancouver v Ward
    [2010] 2 SCR 28
  • Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna
Jurisdiction invoked
Article 162(2)(b) of the Constitution 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, "Kubai Investments Limited v Attorney General Sued on Behalf of the Ministry of Lands & 10 others (Environment and Land Petition E019 of 2021) [2025] KEELC 6868 (KLR)", Case Analysis (2025). Petition dated 17th May, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6868/eng@2025-10-13

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