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ELCPartially AllowedNot stated in the judgment (Miscellaneous Application, Environment and Land Court, Kwale)· [2026] KEELC 2732 (KLR)

Koichi Realtors Limited v Takawa Earth Resources Limited & 5 others (Environment and Land Miscellaneous Application E015 of 2025) [2026] KEELC 2732 (KLR)

Environment and Land Court of Kenya
27 April 2026
4,090 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land dispute case because the company filed it with the wrong court document, ending the suit entirely.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kwale (Naikuni J) determines two preliminary objections raised against a Notice of Motion application dated 27th August 2025 filed by Koichi Realtors Limited concerning sand harvesting activities on land at the Kwale Mbuguni Phase II Settlement Scheme. The court framed three issues: whether the objections met the Mukisa Biscuits threshold, whether they were merited, and costs. Applying the settled doctrine that a preliminary objection must be a pure point of law arising from the pleadings, the court held that the 2nd Respondent's grounds - that the land is a settlement scheme for squatters under Section 134(7) of the Land Act and that the harvesting area is riparian land - required factual ascertainment and evidence, and accordingly dismissed that objection. Conversely, the 1st Interested Party's objection that the application was fatally defective because it was not anchored on any substantive suit was upheld: no Plaint, Petition or Originating Summons had been filed, and a Notice of Motion is not a legally recognised originating process under Section 19 of the Civil Procedure Act and Order 3 Rule 1 of the Civil Procedure Rules. The application was struck out and the suit dismissed. The court declined consolidation with ELC PET/E003 of 2025, leaving the parties to pursue matters separately and noting that any recusal application could be made formally. Costs were awarded only to the 1st Interested Party, to be borne by the Applicant.

Key legal issues

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01

Whether the two preliminary objections met the threshold for a preliminary objection

Holding

The test is a pure point of law pleaded or arising by clear implication from the pleadings; objections requiring ascertainment of facts fail the test.

Reasoning

The court restated the Mukisa Biscuits doctrine as adopted by the Supreme Court in Hassan Ali Joho, and the Tanzanian authority in Karata Ernest. It held that the 2nd Respondent's grounds (settlement scheme status, riparian land) required evidence and fell outside the doctrine, whereas the 1st Interested Party's ground (suit commenced by Notice of Motion) was a pure point of law ascertainable from the record.

p. 6
02

Whether an application can commence a suit

Holding

No - a suit can only be instituted by Plaint, Petition or Originating Summons under Section 19 of the Civil Procedure Act and Order 3 Rule 1 of the Civil Procedure Rules; a Notice of Motion without a substantive suit is fatally defective.

Reasoning

Relying on Section 19 of the Civil Procedure Act, Order 3 Rule 1 of the Civil Procedure Rules 2010, and Photo Energy Limited v Hashi Energy Limited, the court found no Plaint, Originating Summons or Petition on record. Issues of land ownership and environmental protection are substantive and require properly pleaded suits with evidence, not applications and affidavits.

p. 7
03

Who bears the costs of the preliminary objections

Holding

Costs follow the event; only the 1st Interested Party, whose objection succeeded, was awarded costs against the Applicant.

Reasoning

The court applied Section 27(1) of the Civil Procedure Act and the authorities of Harun Mutwiri, Republic v Rosemary Wairimu Munene and Hussein Muhumed Sirat, confirming that the successful party is ordinarily entitled to costs absent exceptional circumstances. The 2nd Respondent's dismissed objection attracted no costs.

p. 8

Legal principles established

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  • A preliminary objection must be a pure point of law arising from the pleadings; it cannot succeed if facts must be ascertained or if the court is asked to exercise discretion
  • A suit may only be instituted by Plaint, Petition or Originating Summons; a Notice of Motion is not an originating process and cannot commence a suit
  • Costs follow the event and are at the discretion of the court under Section 27(1) of the Civil Procedure Act

Court orders

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  1. 1.The Preliminary Objection dated 27th September 2025 by the 2nd Respondent is dismissed
  2. 2.The Preliminary Objection dated 22nd September 2025 by the 1st Interested Party is allowed; the Notice of Motion application dated 27th August 2025 by the Applicant is struck out and the suit is automatically dismissed
  3. 3.Costs awarded only to the 1st Interested Party for the Preliminary Objection dated 22nd September 2025, to be borne by the Applicant
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (Constitution of Kenya, 2010, Article 162(2); Environment and Land Court Act) - not expressly cited in the ruling

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, "Koichi Realtors Limited v Takawa Earth Resources Limited & 5 others (Environment and Land Miscellaneous Application E015 of 2025) [2026] KEELC 2732 (KLR)", Case Analysis (2026). Not stated in the judgment (Miscellaneous Application, Environment and Land Court, Kwale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2732/eng@2026-04-27

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