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ELCDismissedNot stated in the judgment (application dated 28th May 2025; appeal against Ruling of Hon. S. O. Ongeri PM dated 13th May 2025 in MC COMMSU No. E001 of 2025)· [2026] KEELC 3784 (KLR)

Adhiambo v Opiyo t/a Oyugis Services Station & another (Environment and Land Miscellaneous Case E027 of 2026) [2026] KEELC 3784 (KLR)

Environment and Land Court
17 June 2026
JWJOHN WALTER WANYONYI
2,468 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed it can hear appeals where the real dispute is about land ownership, even from a commercial case.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Homabay (Wanyonyi J) delivered virtually on 17th June 2026, determining a preliminary objection raised by counsel newly on record for the Respondent against an application dated 28th May 2025. The Applicant sought leave to lodge an appeal against a ruling of Hon. S. O. Ongeri, Principal Magistrate, dated 13th May 2025 in MC COMMSU No. E001 of 2025 (Oyugis), a stay of proceedings, a stay of execution, and setting aside of the orders of 13th May 2025. Interim stay had been granted by Munyao J on 29th May 2025. The preliminary objection contended that the ELC lacked jurisdiction because the matter arose from a warrant of arrest in enforcement of orders in a commercial suit, and sought striking out of the appeal for want of jurisdiction under Article 165(5) of the Constitution and Section 13 of the ELC Act. The Applicant, through submissions citing inter alia IEBC v Cheperenge, Aviation & Allied Workers Union v Kenya Airways, Suzanne Achieng Butler v Redhill Heights and Co-operative Bank v Kangethe Ngugi, contended the underlying dispute concerned Plot 38 Oyugis town and trespass. The court examined the plaint, noting the 1st Respondent pleaded tenancy of LR Plot 38 Oyugis town and complained of encroachment, and held that the dominant issue is entitlement to and existence of land, engaging Section 13(1) of the ELC Act and Article 162(2)(b). The preliminary objection was found premature and misplaced and dismissed with costs; the application dates proceed as scheduled, stay orders were extended, and the Respondent was granted 21 days to file a response, with mention on 23/7/2026.

Key legal issues

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01

Whether the ELC has jurisdiction over the appeal arising from a commercial suit concerning Plot 38 Oyugis town

Holding

The preliminary objection on jurisdiction fails because the dominant issue in the underlying suit is entitlement to and existence of land, bringing the dispute within Article 162(2)(b) and Section 13 of the ELC Act.

Reasoning

The court reverted to the plaint, in which the 1st Respondent pleaded tenancy of LR Plot 38 Oyugis town and complained of encroachment by the Applicant. Applying the predominant purpose test from Suzanne Achieng Butler and the dominant-issue approach in Co-operative Bank v Kangethe Ngugi, the court held the dispute is essentially about land, not a purely commercial banker-lender dispute. The court also found the preliminary objection premature and misplaced at that stage.

p. 6
02

Whether a preliminary objection was properly raised at that stage

Holding

The court found the preliminary objection premature and misplaced, noting it was filed on the premise that an appeal had been filed.

Reasoning

Relying on the Supreme Court's guidance in IEBC v Jane Cheperenge and Aviation & Allied Workers Union v Kenya Airways, and the Mukisa Biscuit test cited in Moses Mwangi Nyiha Gatambia, the court observed that preliminary objections must be pure points of law and should not be deployed as a sword. The PO was filed by counsel who had just come on record for the Appellant and was premature.

p. 6

Legal principles established

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  • Section 13(1) of the Environment and Land Court Act confers on the ELC both original and appellate jurisdiction to determine all disputes in accordance with Article 162(2)(b) of the Constitution.
  • Where a dispute predominantly concerns entitlement to and existence of land, the ELC has jurisdiction notwithstanding incidental commercial elements.

Court orders

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  1. 1.The preliminary objection is dismissed with costs.
  2. 2.The application dates shall proceed as earlier scheduled.
  3. 3.Stay orders extended.
  4. 4.The Respondent is granted 21 days to file and serve a response to the application.
  5. 5.Mention Notice to issue on 23/7/2026.
On appeal from
Oyugis Law Courts (Senior Principal Magistrate's Court)
MC COMMSU No. E001 of 2025
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, "Adhiambo v Opiyo t/a Oyugis Services Station & another (Environment and Land Miscellaneous Case E027 of 2026) [2026] KEELC 3784 (KLR)", Case Analysis (2026). Not stated in the judgment (application dated 28th May 2025; appeal against Ruling of Hon. S. O. Ongeri PM dated 13th May 2025 in MC COMMSU No. E001 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3784/eng@2026-06-17

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