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ELCDismissedNot stated in the judgment· [2026] KEELC 2881 (KLR)

Kwengu & 6 others v Alphana Business Park Limited & 3 others (Environment and Land Case E458 of 2025) [2026] KEELC 2881 (KLR)

Environment and Land Court
8 May 2026
TMT. Murigi
3,712 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to strike out a land dispute suit, ruling that requiring exhaustion of statutory remedies first is not absolute when a claim covers multiple wrongs.

What this practically means

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Executive summary

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The 2nd Defendant raised a preliminary objection contending that the Environment and Land Court lacked jurisdiction because the Plaintiffs did not exhaust statutory remedies under the Physical and Land Use Planning Act (appeals to the Physical and Land Use Planning Liaison Committee under Sections 61 and 78-81) and the Environmental Management and Coordination Act (appeals to the National Environment Tribunal under Section 129). The 3rd Defendant supported the objection; the Plaintiffs opposed, arguing the objection raised disputed facts and that their claim did not challenge approvals per se but sought redress for property damage, interference with access and injunctive relief, invoking exceptions to the exhaustion doctrine. The Court, applying Mukisa Biscuit, Oraro v Mbaja, Lillian S and Macharia, held jurisdiction was a pure point of law properly raised preliminarily. It then examined the pleadings and reliefs and found the claim composite: proprietary claims, compensation for damaged walls, restoration of access, permanent injunction and declarations fall within the Court's jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act, while the Liaison Committee cannot grant such relief and the NET is not a court of general jurisdiction. Relying on Nicholus, Kibos Distillers and Krystalline Salt, the Court held the exhaustion doctrine is not absolute and striking out the entire suit would be disproportionate. The preliminary objection dated 3rd October 2025 was dismissed with costs.

Key legal issues

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01

Whether failure to exhaust statutory remedies under the Physical and Land Use Planning Act and EMCA ousts the ELC's jurisdiction

Holding

No - the claim is a composite dispute partly outside the statutory forums' jurisdiction, so the objection fails

Reasoning

The Court reviewed Section 129 of EMCA and Sections 61, 78-81 of the Physical and Land Use Planning Act, finding the Liaison Committee cannot resolve proprietary claims, compensate for property damage, or grant permanent injunctions, and the NET is not a court of general jurisdiction. The Plaintiffs' pleaded claim includes property damage, interference with access, injunctive relief, restoration and compensation, which fall within Article 162(2)(b) and Section 13 of the ELC Act. Separating the complaints would require evidence, so striking out the entire suit would be disproportionate.

p. 7
02

Whether the objection qualifies as a true preliminary objection on a pure point of law

Holding

Yes, insofar as it raises jurisdiction, which is a pure point of law

Reasoning

Applying Mukisa Biscuit and Oraro v Mbaja, the Court held that a jurisdictional objection based on the exhaustion doctrine may be raised preliminarily where the facts needed for its determination are undisputed and clear from the pleadings.

p. 5

Legal principles established

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  • Jurisdiction is a pure point of law and can be raised as a preliminary objection where the facts necessary for its determination are undisputed
  • The doctrine of exhaustion is not absolute; the court must examine the pleadings and reliefs sought to determine whether the dispute falls entirely within a statutory forum
  • The existence of some issues subject to statutory dispute resolution does not by itself deprive the Court of jurisdiction over the entire suit; striking out the whole suit may be disproportionate

Court orders

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  1. 1.The 2nd Defendant's Preliminary Objection dated 3rd October 2025 is dismissed with costs
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, "Kwengu & 6 others v Alphana Business Park Limited & 3 others (Environment and Land Case E458 of 2025) [2026] KEELC 2881 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2881/eng@2026-05-08

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