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ELCDismissedNotice of motion dated 4th April, 2025; notice of preliminary objection dated 3rd June, 2025 (suit over LR No. 2/241 Nairobi Gitanga Road)

Makokha v Omondi & 2 others (Environment and Land Case E169 of 2025) [2025] KEELC 8121 (KLR)

Environment and Land Court
25 November 2025
3,513 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A widow's bid to freeze a disputed Nairobi property failed because a High Court preservation order already protects it, and her ownership claim must await full trial.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court on the plaintiff's notice of motion dated 4th April 2025 seeking a temporary injunction over LR No. 2/241 Nairobi Gitanga Road, and the 1st defendant's notice of preliminary objection dated 3rd June 2025 challenging the court's jurisdiction. The plaintiff, widow and co-administrator of the estate of Raphael Charles Makokha (died intestate 30th April 2013), alleged that the property was fraudulently transferred to the 1st defendant in August 2016 after the deceased's death and before confirmation of the grant in Busia Succession Cause No. 106 of 2014, amounting to intermeddling. The 1st defendant countered that he purchased the property in 2009 for Kshs.80,000,000 and that the transfer process was initiated by the deceased; the 2nd defendant disclaimed any interest or participation. On the preliminary objection, applying Mukisa Biscuits, Oraro v Mbaja and John Musakali, the court held that only ground 2 raised a pure point of law, and even that failed because the plaint sought land-based remedies (injunction, declarations, rectification of register) within the court's jurisdiction. On the injunction, the court applied Giella v Cassman Brown and found the plaintiff had not established a prima facie case or substantial loss: the official search showed the 1st defendant as registered owner, and the Busia High Court had on 15th October 2024 already issued orders preserving the property, which the court found sufficient and declined to disturb. Both the application and the preliminary objection were dismissed with each party bearing its own costs. The substantive suit remains for trial.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the notice of preliminary objection has merit
  2. 2.Whether temporary orders of injunction ought to issue pending the determination of the suit

Key legal issues

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01

Whether the preliminary objection against the court's jurisdiction was merited

Holding

Only ground 2 raised a pure point of law, and it failed because the plaint sought land-based remedies squarely within this court's jurisdiction

Reasoning

Applying Mukisa Biscuits and Oraro v Mbaja, the court found grounds 1, 3, 4 and 5 were contested and required evidence. Ground 2 (jurisdiction) was a pure point of law, but the plaint sought a permanent injunction, declarations of ownership and rectification of the land register - remedies within the ELC's jurisdiction. The fact that the dispute touches a deceased's estate did not oust the court's jurisdiction.

p. 6
02

Whether the plaintiff met the Giella v Cassman Brown conditions for an interlocutory injunction

Holding

She failed to establish a prima facie case; the official search showed the 1st defendant as registered owner and the Busia High Court had already preserved the property

Reasoning

The court perused the plaintiff's annexures, including the Busia High Court ruling of 15th October 2024 which found the property was never registered in the deceased's name and preserved it pending further orders. No title showed the deceased as proprietor, and the plaintiff did not prove substantial loss from lost rent. Contested ownership questions were best resolved at trial.

p. 7
03

Whether the court should grant injunction orders in light of the subsisting Busia preservation orders

Holding

The Busia orders were sufficient; this court declined to interfere until they are set aside

Reasoning

The High Court in Busia had, in its ruling of 15th October 2024, granted prayer (h) preserving LR No. 2/241 until further orders. The court found those orders adequate protection for the property in these proceedings and held that until they are set aside it has no business interfering with them.

p. 7

Legal principles established

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  • For a preliminary objection to succeed it must be a pure point of law, based on facts not disputed, and capable of disposing of the suit without trial
  • The Environment and Land Court has jurisdiction to determine disputes seeking relief concerning title to land even where the land formed part of a deceased's estate
  • A court will not interfere with subsisting preservation orders issued by a court of concurrent jurisdiction until they are set aside

Court orders

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  1. 1.The notice of motion dated 4th April, 2025 is dismissed
  2. 2.The notice of preliminary objection dated 3rd June, 2025 is dismissed
  3. 3.Each party shall bear its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) jurisdiction of the Environment and Land Court over land; application under Order 40 Rules 1, 2 and 4 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act

Relief refused

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Temporary injunction restraining the 1st defendant from dealing with LR No. 2/241 Nairobi Gitanga Road pending determination of the suit

The plaintiff did not establish a prima facie case; the High Court in Busia had already issued preservation orders which remain in force

p. 7

Order restraining the 3rd respondent from processing or registering transactions over the suit property

The High Court's preservation orders were sufficient; this court would not interfere with them

p. 7

Costs

Each party shall bear its own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

for a preliminary objection to succeed, the same must consist of a pure point of law, with the facts not disputed by the opposing party. Also, a preliminary objection should possess the ability to dispose of the issue that is before court without going to trial
p. 5Requirements for a valid preliminary objection
It is trite law that jurisdiction is everything, and without it, the court cannot make any one more step to deal with an issue or a matter that it has no jurisdiction over
p. 5Jurisdiction as a foundational question
From the pleadings, and the prayers sought, this court has jurisdiction to hear and determine the suit. For this reason, the notice of preliminary objection fails.
p. 6ELC jurisdiction over land claims notwithstanding estate context
In my view, the plaintifi/applicant has not established a prima facie to enable the court’s intervention at this stage.
p. 7Failure of the Giella test for interlocutory injunction
Until the orders are set aside, this court has no business interfering with the same.
p. 7Comity with subsisting preservation orders of the High Court
For this reason, the notice of motion dated 4th April, 2025 and the notice of preliminary objection dated 3rd June, 2025 lack merit and they are both dismissed. Each party shall bear its own costs. Orders accordingly.
p. 7Disposition

Issues in the judgment

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minor

The plaintiff's affidavit is quoted inconsistently on when rent collection by the 2nd defendant ended

minor

The ruling of the High Court in Busia is quoted with an internal inconsistency as to the identity of the purchaser from the deceased

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, "Makokha v Omondi & 2 others (Environment and Land Case E169 of 2025) [2025] KEELC 8121 (KLR)", Case Analysis (2025). Notice of motion dated 4th April, 2025; notice of preliminary objection dated 3rd June, 2025 (suit over LR No. 2/241 Nairobi Gitanga Road). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8121/eng@2025-11-25

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