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ELCStruck OutNot stated in judgment (Originating Summons, Environment and Land Court, Nakuru)· [2026] KEELC 859 (KLR)

Wanyoike & another v Ikenye (Enviromental and Land Originating Summons E21 of 2025) [2026] KEELC 859 (KLR)

Environment and Land Court
19 February 2026
MOM. A. Odeny
1,705 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The Nakuru Environment and Land Court struck out a property-protection suit, confirming that questions about enforcing a court decree belong to the court that issued it.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nakuru (M. A. Odeny, J) determines a Notice of Preliminary Objection dated 2nd December 2025 raised by the Respondent against an Originating Summons in which the Applicants sought prohibitory orders restraining the Respondent from transferring, charging or dealing with three properties: Langalanga/Block 1/209, Kabatini/Block 1/1140 and Nakuru Municipality/Block 17/23. The Respondent objected that the Originating Summons, in substance, sought to secure and aid execution of a monetary decree issued in Milimani High Court Family & Probate Cause No. 64 of 2010 (Estate of Wanyoike Josephat Mburu), and that under Article 162(2)(b) of the Constitution, Section 13 of the Environment and Land Court Act, Section 34 of the Civil Procedure Act, and Section 47 of the Law of Succession Act with Rule 73 of the Probate & Administration Rules, only the court that issued the decree could entertain such questions. The Applicants contended that the ELC had jurisdiction because the properties are situated in Nakuru County. The court applied the Supreme Court's jurisprudence that jurisdiction is donated by the Constitution or statute and that a court lacking jurisdiction must halt proceedings. Holding that Section 34(1) of the Civil Procedure Act reserves execution questions to the executing court, and that there was no order transferring the decree to the ELC under Section 31, the court found the preliminary objection merited, struck out the Originating Summons and awarded costs to the Respondent.

Key legal issues

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01

Jurisdiction of the ELC over an Originating Summons seeking prohibitory orders to preserve properties pending satisfaction of a probate decree

Holding

The ELC lacks jurisdiction; execution-related questions must be determined by the court that issued the decree, and the decree was never transferred to the ELC.

Reasoning

Section 34(1) of the Civil Procedure Act requires all questions relating to execution, discharge or satisfaction of a decree to be determined by the executing court and not by a separate suit. The Applicants obtained a monetary decree in Milimani High Court Succession Cause No. 64 of 2010, and the prohibitory orders sought amount to attachment before sale under Order 22 Rules 48-55, available only in the executing court. There was no order transferring the decree to the ELC under Section 31. Territorial location of the properties does not confer jurisdiction.

p. 5
02

Nature of a preliminary objection

Holding

A preliminary objection consists of a point of law which, if argued as a preliminary point, may dispose of the suit.

Reasoning

The court adopted the Supreme Court's definition in Hassan Ali Joho v Shabal, confirming that a pure point of law on jurisdiction may properly be taken and determined before the merits, and such a point, if upheld, disposes of the suit.

p. 4

Legal principles established

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  • A court that issued a decree must handle questions about its execution unless the decree is sent for execution to another court of competent jurisdiction under Section 31 of the Civil Procedure Act.

Court orders

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  1. 1.The Originating Summons is struck out with costs to the Respondent.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Articles 42, 69 and 70
  • Environment and Land Court ActSection 13
  • Civil Procedure ActSection 34(1)
  • Civil Procedure ActSection 31
  • Law of Succession ActSection 47
  • Probate & Administration RulesRule 73
  • Civil Procedure RulesOrder 22 Rules 48-55

Cases cited (3)

  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • Hassan Ali Joho & another -Vs- Suleiman Said Shabal & 2 Others
    SCK Petition No. 10 of 2013 [2014] eKLR
  • Macharia & Another versus Kenya Commercial Bank Limited
    (application 2 of 20211) [2-12] KESC 8 (KLR)
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, "Wanyoike & another v Ikenye (Enviromental and Land Originating Summons E21 of 2025) [2026] KEELC 859 (KLR)", Case Analysis (2026). Not stated in judgment (Originating Summons, Environment and Land Court, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/859/eng@2026-02-19

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