Gisa & 183 others v Dupoto/Dafur Settlement Welfare Scheme & 19 others; Law Society of Kenya & 14 others (Interested Parties) (Environment and Land Case E178 of 2025) [2026] KEELC 1003 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed objections seeking to send a disputed land sale case to a tribunal, because the facts were contested.
What this practically means
#Executive summary
#Key legal issues
#Whether the objections by the 16th, 1st and 18th Defendants are competent preliminary objections raising pure points of law
The objections are not pure points of law because determining whether the transaction was a compulsory acquisition or a private sale requires evaluation of contested facts and evidence; they are therefore unmerited and dismissed.
The court set out the settled test from Mukisa Biscuit and related authorities: a preliminary objection must be a pure point of law pleaded or arising by clear implication from the pleadings, decided on the assumption that the facts pleaded by the opposite side are correct. Here the objectors contend the dispute arises from a compulsory acquisition attracting the NLC/LAT dispute mechanism under Sections 112, 133C and 133D of the Land Act, while the Plaintiffs and 2nd Interested Party contend it was a private sale and contractual/fraudulent transaction. Since the parties advanced conflicting positions on the nature of the transaction and no documents were placed before the court, the objection is fact-dependent and cannot be resolved as a preliminary point of law.
Whether the Notice of Motion dated 14/4/2025 offends Order 51 Rule 4 of the Civil Procedure Rules
The application does not offend Order 51 Rule 4 because it was supported by an affidavit of Korinke Ole Gisa sworn on 14/4/2025.
Order 51 Rule 4 requires every notice of motion to state the grounds in general terms and to be accompanied by any supporting affidavit intended to be used. On a perusal of the subject application, the court found it was supported by the affidavit of Korinke Ole Gisa sworn on 14/4/2025, and therefore the alleged defect was not fatal.
Whether prayer 16 of the application, seeking payment of fees through Letangule & Co Advocates, offends Order 9 Rule 1 of the Civil Procedure Rules
The objection on prayer 16 is not a pure point of law, as resolving it requires assessing evidence on the nature and probity of the claim; it was not upheld at this stage.
The 1st Defendant contended the prayer for payment of fees bypassed the taxation process under the Advocates Remuneration Order and offended Order 9 Rule 1. The court held that resolving this objection requires assessment of evidence concerning the nature of the claim and its probity, considerations which transcend a purely legal point, and accordingly the objection could not be sustained as a preliminary objection.
The statutory dispute-resolution framework for compulsory acquisition under the Land Act and the ELC's jurisdiction
The Land Act establishes a three-tier mechanism (NLC inquiry, LAT appeal, ELC further appeal), while the ELC enjoys both original and appellate jurisdiction under Section 13 of the ELC Act; however, whether that framework applies depends on the nature of the transaction, a factual question.
The court set out the compulsory acquisition process under Sections 107-133 of the Land Act, reproducing the framework from Patrick Musimba v NLC, and the dispute mechanism in Sections 133A-E vesting first-instance jurisdiction in the Land Acquisition Tribunal with appeals to the ELC under Section 133D. It also noted the ELC's original and appellate jurisdiction under Section 13 of the ELC Act and the exhaustion doctrine under Article 159 of the Constitution, but found the applicability of these provisions depended on contested facts as to whether the transaction was a compulsory acquisition or a private treaty sale.
Legal principles established
#- A preliminary objection must be a pure point of law, pleaded or arising by clear implication out of the pleadings, capable of disposing of the suit without ascertaining any facts
- A preliminary objection cannot be raised where any fact has to be ascertained or where what is sought is the exercise of judicial discretion
- A fact-dependent objection which requires evaluation of evidence is not a proper preliminary objection
- Where an alternative statutory remedy exists, it is desirable that it be pursued first (exhaustion doctrine)
- Jurisdiction cannot be conferred on a court by artful, multifaceted drafting of pleadings to oust a specialised tribunal
Court orders
#- 1.The Preliminary Objections dated the 16/6/25, 19/6/25 and 12/5/25 are unmerited and are hereby dismissed
- 2.Costs shall be in the cause
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gisa & 183 others v Dupoto/Dafur Settlement Welfare Scheme & 19 others; Law Society of Kenya & 14 others (Interested Parties) (Environment and Land Case E178 of 2025) [2026] KEELC 1003 (KLR)", Case Analysis (2026). Not stated in the judgment (suit premised on Plaint dated 14/4/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1003/eng@2026-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.