Morris t/a Levana Hotel v Kamunzyu & 3 others

Directions by the court. 2. The directions by the court were that the preliminary objection be canvassed by way of written submissions. Both sides complied led their respective submissions which now form part of the record of this court. I have had the opportunity to read the submissions and consider them. Submissions by the 1st -3rd defendants 3. Submitting in support of their preliminary objection, the 1st, 2nd and 3rd defendants argued that the orders sought by the plainti in the plaint are orders that can be presided over by a lower court instead of burdening this court with briefs that can be adjudicated elsewhere. They therefore urge the court to dismiss the plainti’s suit. Submissions by the plainti. 4. In his submissions, the plainti rst and foremost avers that the preliminary objection by the 1st to 3rd defendants does not disclose with clarity the provisions of the law under which it is brought under. Secondly, that this court is vested with the jurisdiction to entertain and determine this matter, by virtue of Article 162 (2) (b) of the Constitution and Section 13 of the Environment Land Court Act. Issues for determination. 5. I will rst address the issue raised by the plainti on lack of precision in the preliminary objection by the 1st – 3rd defendants. The court in the case of Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others (2004) eKLR, while addressing the need of precision in preliminary objections stated that, “ We must point out from the outset that the preliminary objections as formulated above are bare and bereft of any sucient material and are coached in such a way that it is not possible for a party to whom they are addressed to suciently prepare and be ready to counter them. We are of the considered view tht if a party wishes to raise a preliminary objection and les in court a notice to that eect and is subsequently served on other parties to the suit, the preliminary points should be suciently particularized and detailed to enable the other side and indeed the court to know exactly the nature of the preliminary points of law to be raised. To state that the application is bad in law without saying more does not assist the other parties to the suit nor the court to suciently prepare to meet the challenge. If it is only at the hearing that the preliminary objection is amplied and elaborated, it gets the other side unprepared and is reminiscent of trial by ambush. Such practice of course ought to be discouraged”. 6. The preliminary objection by the 1st to 3rd defendants was clearly short of particulars. It just simply frame thus, “…this Honorable Court lacks jurisdiction to entertain this matter; …the plainti’s suit is fatally defective and ill advised” It is only from the reading of the submissions that one gets to understand its basis. 7. Nonetheless, I will proceed to consider the preliminary objection on its merits. The issue for determination is whether this court is clothed with the jurisdiction to entertain and determine this case. 8. This court derives its jurisdiction from Article 162 (2) (b) of the Constitution and Section 13 of the Environment and Land Court (ELC) Act. 9. From a reading of Article 162 (2) (b) and the Section 13 of the ELC Act, the jurisdiction of this court is neither limited in terms of pecuniary jurisdiction nor geographically. It is therefore a misnomer for https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18724/eng@2025-06-03 2

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the 1st to 3rd defendants to allege that this court lacks jurisdiction to entertain the matter owing to pecuniary limitations. 10. In Republic v Karisa Chengo (2017) eKLR, the Supreme Court was emphatic that, “ By jurisdiction is meant the authority which a court has to decide matters litigated before it or take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by statute, charter or commission under which the court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited”. 11. From the foregoing, it is appropriate and legally sound to state that the jurisdiction of this court is unlimited in as far as disputes relating to the environment and the use and occupation of, and title to, land, are concerned. 12. The 1st to 3rd defendants did not elaborate on the second point alleging that the plainti’s suit is fatally defective and ill advised. 13. Consequently, the preliminary objection by the 1st to 3rd defendants is unmerited. 14. I must however be quick to state that it is good practice that suits ought to be led at the lowest competent court which can deal with the issues in dispute. As rightly stated in the case of Steel Structures Limited v David Engineering Limited (Nairobi- Milimani HCCC 189 of 2017) as cited in the case of Cecil G. Miller & Co. Advocates v Parin Shariff & 3 others (2012) eKLR, “ This practice is founded on the fact that a party should be given as much latitude as the law permits in challenging a decision. To deal with the matter at the higher echelons of judicial hierarchy, even if the higher court is clothed with jurisdiction may amount to denying a party the opportunity to challenge a decision”. 15. That said, the preliminary objection by the 1st to 3rd defendants is dismissed with costs to the plainti for want of merit. It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 3RD DAY OF JUNE 2025. M.D. MWANGI JUDGE In the virtual presence of: Mr. Were h/b for Mr. Momanyi for the Plainti Ms. Monyangi for the 1st – 3rd Defendants N/A for the 4th Defendant Court Assistant: Mpoye M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18724/eng@2025-06-03 3

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