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ELCDismissedNot stated in judgment· [2025] KEELC 7479 (KLR)

Hotel Savana Limited v Omuga; Apondu & 2 others (Interested Parties) (Environment and Land Case E009 of 2025) [2025] KEELC 7479 (KLR)

Environment and Land Court
30 October 2025
ADA.E. Dena
3,044 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court in Siaya ruled it, not the Rent Tribunal, hears disputes where land ownership is the main issue.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of LR Siaya/Ambira/29, sued claiming that the defendant's entry into and continued occupation of the land rested on an illegal lease agreement dated 10th November 2017. It sought declarations that the lease was illegal, null and void and that the defendant's entry and occupation were illegal, together with an order for permanent eviction and a permanent injunction restraining the defendant, her relatives and agents from dealing with the land. The defendant filed a preliminary objection dated 2nd May 2025 arguing that, on the plaintiff's own pleadings, the lease expired on 10th November 2023 after which the defendant became a controlled tenant, so that under Article 162(2)(b), 165(5), 169(1)(d) and 169(2) of the Constitution read with sections 2, 4, 12 and 15 of Cap 301 and section 13(4) of Cap 12A, exclusive original jurisdiction lay with the Business Premises Rent Tribunal and this court had only appellate jurisdiction; she sought striking out of the plaint with costs. The plaintiff countered that there was no recognised tenancy or contract with the defendant, who was a pure encroacher, and that the dispute was one of ownership and use of land within this court's jurisdiction. The court held the objection was properly raised as a pure point of law but, applying the predominant purpose test from Mohamed Ali Baadi and Suzanne Butler, found the predominant issue to be proprietorship of and authority over the land, within section 13 of the Environment and Land Court Act. Further, the refund of renovation monies claimed by the defendant was not rent, and even assuming a controlled tenancy the Tribunal could not grant the permanent injunction sought. The objection was dismissed with costs abiding the outcome of the suit.

Key legal issues

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01

Whether the preliminary objection was properly raised as a point of law

Holding

The objection was properly raised as it is jurisdictional and no facts need to be ascertained

Reasoning

Applying Mukisa Biscuit and John Musakali, a preliminary objection must be a point of law arising from pleadings on agreed facts, capable of disposing of the suit. Here the objection challenged the court's jurisdiction, and the facts relevant to jurisdiction (the lease terms and their expiry) were drawn from the plaint itself, so no disputed facts required ascertainment.

p. 5
02

Whether the dispute is a controlled tenancy matter reserved for the Business Premises Rent Tribunal

Holding

No - the predominant issue is ownership, use and occupation of land, within the ELC's jurisdiction; even assuming a controlled tenancy, the Tribunal lacks power to grant the permanent injunction sought

Reasoning

Applying the predominant purpose test from Mohamed Ali Baadi and Suzanne Butler, the dominant issue in the plaint is proprietorship of and authority over the suit land. The defendant's claim for refund of renovation costs is not rent. Further, following Narshidas, the Tribunal has no jurisdiction to issue injunctions or protect against forceful eviction, remedies sought in the plaint. The claims cannot be severed.

p. 6

Legal principles established

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  • A preliminary objection consists of a point of law pleaded or arising by clear implication from the pleadings which, if argued as a preliminary point, may dispose of the suit
  • In hybrid ('mixed grill') disputes, jurisdiction is determined by the predominant purpose test - the court inquires what the most substantial question or issue in the controversy is
  • Jurisdiction is everything and a court without jurisdiction must down its tools
  • Where ownership, use and occupation of land is the predominant issue, the dispute falls within section 13 of the Environment and Land Court Act and the two claims cannot be severed

Court orders

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  1. 1.The preliminary objection dated 2nd May 2025 is dismissed
  2. 2.Costs shall abide the outcome of the suit
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya; Section 13 of the Environment and Land Court Act, 2012 (Cap 12A)

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, "Hotel Savana Limited v Omuga; Apondu & 2 others (Interested Parties) (Environment and Land Case E009 of 2025) [2025] KEELC 7479 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7479/eng@2025-10-30

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