Shah & 7 others v Patel & another

2. b. That the present suit is misconceived, as it pertains to a commercial/civil dispute arising out of mutual investment contracts between co-investors; therefore, the Plaintis cannot seek refuge under the guise of this Court’s jurisdiction. c. That on the face of the pleadings, the real issues herein arise out of co-investment dealings/ contracts between the Plainti and a third party not sued herein; hence, are purely commercial in nature. d. That aware of this Court’s lack of jurisdiction as above, the Plaintis have led a counterclaim in Kajiado High Court Commercial Case No. E002 of 2024. e. That in the circumstances, and in the interests of justice, the suit should be struck out and/ or dismissed with costs. The Defendants’ position, as expressed in the Preliminary Objection and the supporting submissions, is that the Plaintis have improperly invoked the jurisdiction of the Environment and Land Court (ELC) to litigate a matter which is, in substance, a contractual dispute falling squarely within the purview of the High Court’s Commercial Division. It is argued that the dispute emanates from mutual investment arrangements between the Plaintis and a third party who is not a party to the present proceedings, and that the Plaintis’ simultaneous ling of a counter-claim in Kajiado High Court Commercial Case No. E002 of 2024 is a tacit admission that the proper forum is the High Court. The Defendants therefore contend that this Court lacks jurisdiction ab initio. Directions 3. The court directed that the Preliminary Objection be canvassed by way of written submissions. I have had the opportunity to read the parties’ submissions and the same have been considered in the writing of this ruling. Analysis and Determination 4. The law on preliminary objections is well settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, the court stated as follows: “ A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” Sir Charles Newbold, P., in the same case, cautioned that: “ A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law… A preliminary objection cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 5. It follows that a jurisdictional challenge, if grounded on pure points of law discernible from the pleadings, is a proper subject for a preliminary objection. The central issue herein is whether the dispute before me falls within the jurisdiction conferred upon the Environment and Land Court by the Constitution and Statute. The Defendants’ position is that the claim is a commercial dispute over investment contracts between the Plaintis and a third party, without any direct nexus to the use, https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18727/eng@2025-09-25 2

page 2 of 4

occupation, or title to land. The Plaintis on their part argue that those contracts are inextricably linked to their proprietary interests in the land parcels that form the subject matter of this suit. 6. The question of jurisdiction is foundational to every suit. The Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR, held that: “ A Court’s jurisdiction ows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 7. Similarly, in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, Nyarangi JA famously stated: “ Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 8. The starting point in determining the jurisdiction of this court is Article 162(2)(b) of the Constitution of Kenya, 2010, which provides that: “ Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to— (b) 9. the environment and the use and occupation of, and title to, land.” Pursuant to the above constitutional provision, Section 13 of the Environment and Land Court Act, No. 19 of 2011, provides in part: 13 (2) "In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes— (a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; (b) relating to compulsory acquisition of land; (c) relating to land administration and management; and (d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and (e) any other dispute relating to environment and land." 10. The scope of the ELC’s jurisdiction was considered in Co-operative Bank of Kenya Ltd v Patrick Kang’ethe Njuguna & 5 Others [2017] eKLR, where the Court of Appeal stated that: “ The jurisdiction of the Environment and Land Court is restricted to the areas outlined under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. The Court cannot assume jurisdiction in matters that are purely contractual or commercial in nature and which do not directly relate to the use, occupation of, or title to land.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18727/eng@2025-09-25 3

page 3 of 4

11. Further, the court emphasized that: “ …where the dispute does not relate to the environment and the use, occupation and title to land, the jurisdiction of the Environment and Land Court is not attracted. Contracts, even if they relate to land, will not per se fall under the jurisdiction of the Environment and Land Court unless they are incidental to the use, occupation and title to land.” 12. In the present case, the pleadings led reveal that the Plaintis’ claim is founded on alleged breach of coinvestment agreements, and the Defendants’ alleged failure to honour nancial arrangements. While there is reference to land, the essence of the dispute lies in contractual obligations and commercial dealings rather than in the determination of rights or interests in land as such. There is no prayer for transfer of title, cancellation of registration, eviction, or any relief that would require this Court to adjudicate on use, occupation, or title to the land. 13. This position nds further support in the Supreme Court’s pronouncement in Republic v Karisa Chengo & 2 Others [2017] eKLR, where it was held that: “ …each of the superior courts established by or under Article 162(2) of the Constitution has jurisdiction only over matters reserved to it by the Constitution or by statute.” 14. To that end, jurisdiction is conferred by law. The parties’ cannot confer jurisdiction through the art and craft of drafting pleadings. Where the predominant issue is contractual, even if the subject matter touches on land peripherally, jurisdiction lies with the High Court (Commercial and Tax Division). 15. In light of the foregoing, I nd that this Court lacks jurisdiction to entertain the present suit. Accordingly, the Defendants’ Preliminary Objection succeeds. The Plaintis’ suit is hereby struck out with costs to the Defendants for want of jurisdiction. It is so ordered. DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 25TH DAY OF SEPTEMBER 2025. M.D. MWANGI JUDGE In the virtual presence of: Mr. Ashitiva for the Defendants Ms. Nyachera h/b for Ms. Cheruiyot for the Plaintis Court Assistant: Mpoye M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18727/eng@2025-09-25 4

page 4 of 4