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ELCDismissedNot stated in the extract provided· [2025] KEELC 7353 (KLR)

Ali & another v Ngige & 2 others (Land Case E095 of 2025) [2025] KEELC 7353 (KLR)

Environment and Land Court
24 October 2025
4,308 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed it can hear disputes over long-term leases because such leases are not controlled tenancies handled by the rent tribunal.

What this practically means

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Executive summary

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The applicants/plaintiffs moved the Environment and Land Court by Notice of Motion dated 9th March 2025 seeking a temporary injunction restraining the respondents from entering, selling, accessing or interfering with their occupation of L.R No. 36/11/148 Eastleigh Second Avenue, Nairobi. They averred they are lessees of the 3rd Respondent and that on 6th March 2025 the 1st and 2nd Respondents threatened eviction and demanded rent. The 3rd Respondent acknowledged the lease and asserted she is the bona fide owner, alleging an illegal sale and transfer, with a commercial suit (Milimani HCCOMM No. 327 of 2017) pending. The 2nd Respondent counter averred he purchased the property at a public auction on 17th December 2021 for Kshs. 100,000,000/=, that vacant possession was a condition of sale, and that the applicants neither occupy the property nor face eviction. He filed a Notice of Preliminary Objection dated 13th March 2025 contending that the court lacks original jurisdiction because the dispute concerns a landlord-tenant relationship within BPRT jurisdiction; that the suit is res judicata and sub judice given prior and pending BPRT references; and that it violates the exhaustion doctrine. Applying Mukisa Biscuits and Oraro v Mbaja, the court framed two issues: jurisdiction and res judicata/sub judice. It held that the lease, running from 1st April 2024 to 30th April 2039 and renewable, is a fifteen-year lease and not a controlled tenancy under Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, so the BPRT's jurisdiction (confined to controlled tenancies) is ousted and the ELC has jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act over disputes relating to enforceable interests in land. On res judicata and sub judice, applying Odeny v Attorney General, the court held these depend on contested facts and the 2nd Respondent adduced no evidence of the BPRT proceedings for comparison; the exhaustion ground attracted no submissions. The preliminary objection was dismissed on 24th October 2025. No costs order appears. The injunction application itself remains to be determined.

Key legal issues

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01

Whether the ELC has jurisdiction over a dispute arising from a 15-year lease

Holding

Yes - the lease is not a controlled tenancy, so BPRT jurisdiction is ousted and the ELC has jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act

Reasoning

The court derived its jurisdiction from Article 162(2)(b) of the Constitution and Section 13 of the ELC Act, which covers disputes relating to enforceable interests in land. Section 2 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act defines a controlled tenancy as one not in writing or for a period not exceeding five years. The lease here ran from 1st April 2024 to 30th April 2039 (fifteen years) and was renewable, placing it outside the BPRT's jurisdiction.

p. 8
02

Whether the suit is res judicata and sub judice by reason of prior and pending BPRT references

Holding

No - these grounds depend on contested factual matters and no evidence of the BPRT proceedings was adduced, so they cannot support a preliminary objection

Reasoning

The court applied Odeny v Attorney General, holding that where a preliminary objection rests on a fact the other side denies, and the objector has not produced evidence of the prior proceedings to enable comparison of the pleadings, the objection fails the Mukisa Biscuit threshold of a pure point of law. The plaintiffs and 1st defendant denied participation in the BPRT references, requiring ascertainment of fact beyond a preliminary objection.

p. 9
03

Whether the ground of exhaustion of administrative remedies was established

Holding

Not determined, as no submissions were made on it

Reasoning

The third ground in the preliminary objection alleged breach of the exhaustion doctrine under the Fair Administrative Action Act. No party addressed submissions to it, and the court declined to make any determination, treating it as abandoned.

p. 9

Legal principles established

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  • A preliminary objection must be a pure point of law and cannot rest on disputed facts or require ascertainment of evidence
  • The BPRT's jurisdiction is confined to controlled tenancies; a fifteen-year renewable lease falls outside it and disputes over such lease are within the ELC's jurisdiction

Court orders

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  1. 1.The Preliminary Objection dated 13th March 2025 is dismissed as devoid of merit
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, "Ali & another v Ngige & 2 others (Land Case E095 of 2025) [2025] KEELC 7353 (KLR)", Case Analysis (2025). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7353/eng@2025-10-24

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