Nyabwendo & another v County Government of Kisii & another (Environment and Land Case E017 of 2025) [2026] KEELC 851 (KLR)

Relying on the Court of Appeal in Attorney General & others v Okiya Omtata Okoiti, the court held that while the High Court has unlimited original jurisdiction under Article 165(3)(b), the ELC and ELRC may interpret and apply the Constitution on issues arising in the context of environment and land or employment disputes. Since the plaintiffs' claim is built on trespass and demolition of a building on land, the matter falls squarely within the ELC's jurisdiction.

The court reiterated that a preliminary objection must be a pure point of law argued on facts as pleaded (Mukisa Biscuit). Determining whether the plaintiffs proved ownership, whether they encroached on a road reserve, and whether notice was issued under Section 13A would all require the court to receive and consider evidence, so those objections are matters for trial rather than valid preliminary objections.

Applying Giella v Cassman Brown and Nguruman, the first limb requires a prima facie case with a probability of success. The First Defendant correctly pointed out that no title deed was annexed. The 'Kadi Ya Ploti' was unsupported by allotment minutes, and there was no evidence of payment of charges or compliance with allotment terms. Further, an allotment is not title to land. The plaintiffs therefore failed at the first hurdle and the court did not consider the other limbs.