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ELCOtherNot stated in judgment (Notice of Motion dated 25th March 2025; Preliminary Objection dated 1st April 2025)· [2025] KEELC 7033 (KLR)

Mwango & 5 others v Maro & another (Enviromental and Land Originating Summons E015 of 2025) [2025] KEELC 7033 (KLR)

Environment and Land Court
16 October 2025
JOJ.O. Olola
1,643 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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By a Notice of Motion dated 25th March 2025, six Plaintiffs sought a temporary injunction restraining the Defendants from evicting them, demolishing their houses or interfering with their occupation of Plot No. 177/III/MN/CR No. 7172 at Mtwapa, Majengo Kanamai in Kilifi County, alleging over 30 years' occupation and a demolition carried out by the Defendants using bulldozers on 8th March 2025. The Defendants opposed, asserting that the suit property belonged to their late grandfather, that the Plaintiffs were part of a group of about thirty people who invaded the land in 2023 with intent to grab it, and that they themselves resided on a different parcel (CR 4224). The Defendants also filed a Notice of Preliminary Objection dated 1st April 2025, principally contending that the ELC at Mombasa lacked territorial jurisdiction since the suit property is situate at Majengo Kanamai, within the jurisdiction of Malindi. Applying the Mukisa Biscuits and Oraro v Mbaja tests, the court held that only the jurisdictional grounds qualified as a proper preliminary objection, the other grounds being factual. On jurisdiction, the court held that under section 4(3) of the Environment and Land Court Act the ELC has jurisdiction throughout Kenya, and section 12 of the Civil Procedure Act cannot override that constitutional jurisdiction, though its objectives of convenience and access to justice merit respect. The court partially upheld the objection, declined to dismiss the suit, ordered its transfer to the ELC at Malindi, and awarded the Defendants the costs of the objection. The injunction application was not determined on the merits.

Key legal issues

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01

What constitutes a proper preliminary objection

Holding

Only grounds 1 and 2 (territorial jurisdiction) qualified; grounds 3, 4 and 5 were excluded as they bore factual aspects requiring proof

Reasoning

Applying Mukisa Biscuits and Oraro v Mbaja, a preliminary objection must be a pure point of law pleaded or arising clearly from the pleadings, capable of disposing of the suit. Any assertion bearing factual aspects calling for proof or requiring evidence for authentication is not a true preliminary objection. The court accordingly declined to consider grounds 3, 4 and 5 and confined itself to the jurisdiction question raised in grounds 1 and 2.

p. 3
02

Whether the ELC at Mombasa has territorial jurisdiction over land situate in Kilifi County

Holding

Yes - the ELC has jurisdiction throughout Kenya under section 4(3) of the ELC Act; section 12 of the Civil Procedure Act cannot override that constitutional jurisdiction

Reasoning

Article 162(2)(b) mandated a superior court to hear land disputes; section 4(3) of the ELC Act gives it jurisdiction throughout Kenya. Section 12 of the Civil Procedure Act is only a guide on place of filing, applicable to courts with defined territorial limits, and cannot fetter constitutional jurisdiction. However, the objectives of sections 12 and 15 (convenience and access to justice) justify transferring the suit to Malindi.

p. 4

Legal principles established

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  • The Environment and Land Court, being a superior court of record with jurisdiction throughout Kenya, has unlimited territorial jurisdiction over disputes relating to environment, land use, occupation and title anywhere in the country
  • Section 12 of the Civil Procedure Act on place of suing applies only to courts whose territorial jurisdiction is defined and cannot override the constitutional jurisdiction of the ELC, but its objectives on convenience should inform the court's exercise of power to transfer suits

Court orders

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  1. 1.The Preliminary Objection partially upheld
  2. 2.The suit transferred to the Environment and Land Court at Malindi for hearing and disposal
  3. 3.The Defendants awarded the costs of the Preliminary Objection

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticle 2(4)
  • Constitution of KenyaArticle 165(3)
  • Environment and Land Court Act, No. 19 of 2011Section 4
  • Civil Procedure Act, Cap 21Section 12
  • Civil Procedure Act, Cap 21Section 15

Cases cited (4)

  • Mukisa Biscuits Ltd –vs- West End Distributors Ltd
    (1969) EA 696
  • Oraro –vs- Mbaja
    (2005) 1 KLR, 141
  • Selina Vukinu Ambe –vs- Ketan Shashikant Khatri
    (2020) eKLR
  • Swiss Deli Trade (Panama) Inc –vs- Privamnuts EPZ Kenya Limited
    (2020) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Environment and Land Court Act, No. 19 of 2011, section 4

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mwango & 5 others v Maro & another (Enviromental and Land Originating Summons E015 of 2025) [2025] KEELC 7033 (KLR)", Case Analysis (2025). Not stated in judgment (Notice of Motion dated 25th March 2025; Preliminary Objection dated 1st April 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7033/eng@2025-10-16

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