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ELCDismissednot stated in the judgment as provided

Campanini & 2 others v Tamu Real Estate Limited (Environment and Land Case E022 of 2025) [2026] KEELC 2765 (KLR)

Environment and Land Court
29 April 2026
EME. K. Makori
2,700 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to strike out a land dispute suit involving foreign ownership, holding that fraud and Article 65 issues must go to full trial.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court (E. K. Makori, J) on the defendant's Notice of Motion dated 23rd July 2025, seeking to strike out the plaintiffs' plaint dated 10th March 2025, to strike out the plaintiffs' reply to defence and defence to counterclaim, to enter judgment as prayed in the defendant's counterclaim, and to list the matter for assessment of damages, with costs against the plaintiffs. The dispute concerns apartments 7B and 7D in Dunia Resort, built on parcel Kilifi/Jimba/2020, a subdivision of Kilifi/Jimba/1870, sold under a preliminary sale and purchase agreement dated 25th January 2024. The defendant, a foreign-owned company, contended that under Article 65 of the Constitution freehold held by a non-citizen converts automatically to a 99-year leasehold, that the conversion is self-executing (citing Paragon Electronics Limited v Chief Land Registrar), and that the plaintiffs breached the agreement by failing to pay the balance of the purchase price, leading to a counterclaim for Kshs. 10,354,907.00. The plaintiffs pleaded fraud, contending that the freehold was transferred to a foreign company before conversion to leasehold, that the subdivisions were illegal and fraudulent, and that the sale agreement was null and void ab initio; they also contended that Article 2(7) of the agreement is vague and ambiguous. The court framed the dominant issue as whether to strike out the plaintiffs' suit and who should bear costs. Applying the DT Dobie test, the court held that whether the freehold-to-leasehold conversion was automatic, whether there was fraud, who was in breach, and entitlement to damages are all matters for trial. The application dated 23rd July 2025 was dismissed with costs.

Questions the Court framed

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

  1. 1.Whether to strike out the plaintiffs' suit and who should bear the costs of the application

Key legal issues

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01

Whether the plaintiffs' suit challenging the root of the defendant's title under Article 65 of the Constitution and pleading fraud should be struck out under Order 2 Rule 15 of the Civil Procedure Rules

Holding

The suit should not be struck out; the issues of constitutional interpretation of Article 65, fraud, breach, and entitlement to damages require a full trial.

Reasoning

The court applied the DT Dobie test for striking out pleadings. It found that the question of conversion of freehold to leasehold in cases involving foreigners must be decided together with the other clauses of the preliminary agreement to determine who was in breach, whether there was fraud, and who is entitled to damages. Each party interprets Article 65 in its favour, and such contested issues cannot be resolved summarily.

p. 5
02

Who should bear the costs of the application

Holding

The defendant, as the unsuccessful applicant, bears the costs of the application.

Reasoning

Having dismissed the application, the court ordered that it be dismissed with costs, meaning costs follow the event and fall on the applicant/defendant.

p. 5

Legal principles established

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  • A suit ought not to be struck out summarily unless it is so hopeless that it plainly and obviously discloses no reasonable cause of action and is beyond redemption and incurable by amendment; a mere semblance of a cause of action should go to trial.

Court orders

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  1. 1.The application dated 23rd July 2025 is dismissed
  2. 2.Costs of the application awarded to the plaintiffs (application dismissed with costs)

The bench

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

EM
majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes (not expressly invoked in the judgment as provided)

Relief refused

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Striking out of the plaint dated 10th March 2025

The issues raised, including fraud and constitutional interpretation of Article 65, cannot be determined summarily; a trial is necessary.

p. 5

Striking out the plaintiffs' reply to defence and defence to counterclaim and entering judgment on the counterclaim

Whether there was breach, fraud, and entitlement to damages are issues for trial, not summary determination.

p. 5

Costs of the application against the plaintiffs

The application was dismissed with costs.

p. 5

Costs

Application dated 23rd July 2025 dismissed with costs (costs awarded to the plaintiffs).

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.

No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment.
p. 5Test for striking out pleadings (DT Dobie)
A court of justice ought not to act in darkness without the full facts of a case before it.
p. 5Judicial caution on summary dismissal
Consequently, this is not one of those clear cases for a summary striking out. We must have a trial.
p. 5Conclusion that contested Article 65 and fraud issues require trial
Application dated July 23, 2025, dismissed with costs.
p. 5Final orders - dismissal and costs

Issues in the judgment

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minor

The judgment does not state the case number, neutral citation, or the formal title/coram of the suit; only the application date is given.

minor

Internal inconsistency in the judgment on delivery date and year: the application is dated July 2025 and the disposition is dated 29th April 2026, while earlier text refers to a 2025 filing and 2025-2026 chronology; the date of signing is stated as 2026.

minor

The application is attributed to the 'defendant/applicant' but at paragraph 7 the applicant's authority (Paragon Electronics) is said to have been cited by 'The applicant', while elsewhere the defendant is referred to as 'defendant/respondent' (paragraph 2).

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, "Campanini & 2 others v Tamu Real Estate Limited (Environment and Land Case E022 of 2025) [2026] KEELC 2765 (KLR)", Case Analysis (2026). not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2765/eng@2026-04-29

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