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ELCDismissedELC Case No. E092 of 2024 (formerly Malindi ELC)

Africa Muslims Agency Trust Registered Trustee v Nzili & 4 others (Environment and Land Case E092 of 2024) [2026] KEELC 3211 (KLR)

Environment and Land Court
19 May 2026
3,888 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 an entire land suit after refusing amendments that changed the claim and fell outside its jurisdiction.

What this practically means

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Executive summary

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The plaintiff, an entity represented by its Country Director Dr. Ismail Hassan Hussein, moved the Environment and Land Court at Malindi by Notice of Motion dated 23rd January 2026 seeking leave to amend its plaint filed on 6th September 2024. The proposed amendments would correct the description of the plaintiff and the suit land, remove the third defendant's personal name while retaining his office, change the claim from purchase of the land for valuable consideration to acquisition as an endowment (waqf) for a token amount, add fresh trespass and conversion claims following construction of classrooms, and substitute new prayers including declarations on the school's status and permanent injunctions. The first, second, fourth and fifth defendants opposed through grounds of opposition and submissions by Mr. Ojwang, arguing the amendments concealed prior amendments, introduced inconsistencies, sought to remove a party improperly, and raised matters outside the court's jurisdiction. The court framed one issue: whether the plaintiff should be allowed to amend. It held that the shift from a claim of purchase to a claim of trust was an inconsistent new claim that changed the terrain of the defence entirely, and that the third defendant could not be removed by amendment without invoking joinder or substitution provisions. The court further found, on a preliminary point raised by the defendants, that classification of the school as public or private falls to another forum (the Education Appeals Tribunal under Section 93(2) of the Basic Education Act) and that the ELC, being restricted under Article 165(2)(b) to environment, use and occupation of, and title to land, lacked jurisdiction. Applying the M.V. Lillian 'S' principle, the court dismissed the amendment application with costs and struck out the entire suit with costs for want of jurisdiction.

Questions the Court framed

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

  1. 1.Whether the plaintiff should be allowed to amend its plaint as proposed in the draft attached to the application
  2. 2.Whether this Court has jurisdiction over the issues raised, including classification of Ama Primary School as public or private

Key legal issues

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01

Whether the plaintiff should be allowed to amend its plaint

Holding

Amendment refused because the proposed amendments introduce a claim inconsistent with the original plaint and seek to remove a party arbitrarily

Reasoning

Section 100 of the Civil Procedure Act and Order 8 Rules 3 and 5 give the court discretion to allow amendments, including name corrections and new causes of action arising from the same facts. However, the discretion may be refused where an inconsistent cause of action is introduced or vested rights affected. The plaintiff pleaded purchase of the land but sought to change to a claim based on trust through a waqf — an entirely different and inconsistent claim. The amendment also impermissibly sought to remove the third defendant without invoking joinder/substitution provisions.

p. 8
02

Whether the ELC has jurisdiction over the classification of Ama Primary School as public or private

Holding

The ELC lacks jurisdiction; school classification disputes fall to the proper forum (Education Appeals Tribunal under Section 93(2) of the Basic Education Act)

Reasoning

The court held the classification of a school as public is not solely predicated on land ownership. The dispute over whether the school is public or private belongs to a specialized forum under the Basic Education Act. Since the ELC's jurisdiction under Article 165(2)(b) is restricted to environment, use and occupation of, and title to land, and proper classification of the school had not been established, the court could not render judgment. It declined to usurp the proper forum's mandate.

p. 11

Legal principles established

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  • A court must determine jurisdiction before proceeding; once it finds no jurisdiction it must stop
  • Jurisdiction flows from the law and a court may not arrogate to itself jurisdiction through craft of interpretation

Court orders

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  1. 1.The Notice of Motion dated 23rd January 2026 is dismissed with costs
  2. 2.The entire suit is struck out with costs for want of jurisdiction

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 165(2)(b) of the Constitution (ELC jurisdiction restricted to environment, use and occupation of, and title to, land)

Relief refused

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Leave to amend the plaint as per the draft Amended Plaint

Proposed amendments are inconsistent with the original plaint, changing a claim based on purchase to one based on trust/waqf, and the court lacks jurisdiction over school classification issues

p. 8

Removal of the third defendant from the proceedings via amendment

A party cannot be removed by amendment; withdrawal requires the appropriate provisions on joinder/substitution

p. 9

Costs

Application dismissed with costs; entire suit struck out with costs for want of jurisdiction (costs to the defendants).

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.

The upshot of the foregoing is that the application dated 23rd January, 2026 lacks merit and it is hereby dismissed with costs.
p. 12Dismissal of amendment application
Since this court has also established at this point that it does not have jurisdiction to determine the issues arising from the pleadings in this case, the corollary is that the entire suit is improperly before it and it is hereby struck out with costs for want of jurisdiction.
p. 12Final orders – striking out suit for want of jurisdiction
The moment a court determines that it has no jurisdiction it has to down its tools and proceed no further.
p. 12Jurisdiction
Court may refuse to allow amendments where an inconsistent cause of action is introduced or where the vested interests or accrued legal rights will be adversely affected.
p. 8Discretion to refuse amendments

Issues in the judgment

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minor

The case title and the plaintiff's precise name are never clearly stated in the judgment; the plaintiff is described only through its Country Director's affidavit

minor

The coram signature block gives the judge's name without an initial honorific and the suit number appears only in the footer stamp, not in a formal heading

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, "Africa Muslims Agency Trust Registered Trustee v Nzili & 4 others (Environment and Land Case E092 of 2024) [2026] KEELC 3211 (KLR)", Case Analysis (2026). ELC Case No. E092 of 2024 (formerly Malindi ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3211/eng@2026-05-19

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