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of the works undertaken by the Applicant in the alternative, the Institute of Certified Public Accountants be requested to appoint a valuer. 5. An order directing the Respondents to grant immediate access to the Plaintifis/ Applicants or their representatives to the site for the purposes of retrieving their machinery and equipment valued at Kshs. 1,732,640 currently being detained on site and to ensure their preservation from damage or theft. 6. Cost of the Application be borne by the Respondents. 2. The application is premised on the grounds on the face of it and the supporting afidavit of one Ahmed Anwar Mohamed sworn on even date. 3. The Applicants aver that in or about September 2023, they were engaged by the Defendants to take over and bring to completion the construction of the AP Section 9 Community Mosque project in Thika, a project that had at that time fallen into abeyance. 4. The Applicants aver that the parties reached an oral accord on the scope of the project, which understanding was subsequently crystallised into a Bill of Quantities setting the total cost of construction at Ksh. 56,018,158.50/-, exclusive of a 5% professional fee for project implementation and management. 5. The Applicants contend that the Respondents failed and or neglected to remit the full funds required to carry the works to completion, thereby compelling the Applicants to inject their own resources and to expend a total of Ksh. 12,233,943.98/- in an efiort to keep the project alive. 6. The Applicants further aver that in or about February 2025, the Respondents unilaterally suspended the construction works and, without justification, accused the Applicants of misappropriating project funds. 7. They contend that the dispute thereafter escalated, culminating in their unlawful eviction from the Respondents’ land and the forcible taking and detention of the Applicants’ machinery and equipment, valued at Ksh. 1,732,650/-. 8. The Applicants contend that, notwithstanding a mutual agreement between the parties to procure an independent valuation of the works undertaken so as to ascertain the sums expended and bring the dispute to resolution, the Respondents have since resumed construction on the site in disregard of that agreement thus necessitating the current application seeking injunctive orders. 9. The 1stRespondent confronted the application at the threshold by lodging a Preliminary Objection dated 5th September 2025, in which they assail the proceedings as a misuse of the Court’s process. 10. The 1st Respondent goes further to disavow the jurisdiction of this Honourable Court, asserting that the dispute, properly understood, is neither anchored in land ownership nor in the use or occupation thereof, but is instead a commercial contest falling outside the constitutional and statutory mandate of the Environment and Land Court. 11. In addition, the 1st Respondent challenges the very foundation of the Applicants’ claim by disputing the existence and legal validity of the alleged oral contract, contending that no binding agreement capable of enforcement in law ever arose between the parties. 12. In light of the Preliminary Objection so raised, the Court directed that the objection be argued and disposed of by written submissions at the outset, since the issue of jurisdiction strikes at the very authority of the Court to entertain the matter further. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/338/eng@2026-01-28 2

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Issues for Determination 13. Having considered the application, the preliminary objection in opposition, the parties respective submission and the relevant authorities, the sole issue that emerges for determination is: whether this Honourable Court is seized of the requisite jurisdiction to entertain the dispute. Analysis and Determination 14. The law on preliminary objections in this jurisdiction has long been settled. As was held in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, a preliminary objection is a pure point of law, arising from the pleadings, which, if well-founded, can dispose of the matter without the need to traverse the labyrinth of evidence. 15. In essence, a preliminary objection is a procedural instrument of profound consequence, for it compels the Court to confront, at the outset, the bounds of its own authority, whether that be the competence to hear a claim at all or the limits imposed by statute or the Constitution. 16. In the present matter, the Respondents have invoked a preliminary objection to challenge this Court’s jurisdiction, thereby calling upon the Court to determine, before any further step is taken, whether it possesses the lawful authority to entertain the application. 17. Jurisdiction is the very sinew of judicial power, the invisible thread that binds a Court’s authority to the matter before it. Without it, the most eloquent arguments, the clearest evidence, and the gravest wrongs lie beyond the reach of justice, suspended in a void. 18. In the instant case, the Respondents challenge the Court’s competence, asserting that the dispute, though clothed in the language of land, is in essence a commercial dispute. 19. The task before this Court, therefore, is to discern whether the matter rightly falls within the statutory and constitutional embrace of the Environment and Land Court, or whether it eludes the Court’s jurisdiction entirely. 20. Under Article 162(2)(b) of the Constitution of Kenya 2010, Parliament is empowered to establish courts with the status of the High Court to hear and determine disputes relating to the environment and the use, occupation, and title to land, while Article 162(3) permits Parliament to prescribe the jurisdiction and functions of such courts. 21. Pursuant to this constitutional mandate, Section 13 of the Environment and Land Court Act, 2011 vests this Court with original and appellate jurisdiction over disputes touching on environmental protection, land use and planning, ownership, tenure, boundaries, valuations, rates, rents, and contracts or other instruments that create enforceable interests in land. 22. It is a jurisdiction both specific and solemn, calling upon the Court to ensure that claims which touch on land in law or in substance fall within its grasp. 23. It is well settled in our jurisprudence that a court’s authority must emanate from the Constitution or from statute. 24. In Republic v Chengo & 2 others [2017] KESC 15 (KLR) the Supreme Court of Kenya addressed jurisdiction as follows: “ The Constitution of Kenya, 2010 has pronounced itself clearly on the jurisdictional competencies of various Courts of law in Kenya. The drafters of the Constitution, it appears, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/338/eng@2026-01-28 3

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had the intention of clearly demarcating the jurisdictions of the said Courts so as to preempt lacunae and confiicts.” The Supreme Court went on to state: “ …We therefore entirely concur with the Court of Appeal’s decision that such parity of hierarchical stature does not imply that either ELC or ELRC is the High Court or vice versa. The three are difierent and autonomous courts and exercise difierent and distinct jurisdictions. As article 165(5) precludes the High Court from entertaining matters reserved to the ELC and ELRC, it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High Court.” 25. Karisa Chengo (supra) thus reinforces the critical proposition that the Environment and Land Court’s jurisdiction must be traced to Article 162(2)(b) and the Environment and Land Court Act, and that this Court must, at the threshold, satisfy itself that the subject matter before it truly falls within the constitutional and statutory ambit intended for resolution in land and environmental disputes. 26. Learned counsel for the 1st Respondent contends that the matter presently before this Honourable Court is commercial in character, arising from an alleged breach of a construction contract. They submit that, in circumstances where a construction agreement does not entail the creation, transfer, or enforcement of proprietary rights or interests in land, Kenyan courts apply the Predominant Purpose Test to ascertain the appropriate forum for its determination. 27. In support of this position, reliance is placed upon Suzzane Achieng Butler & 4 Others v Redhill Heights Investments Limited & Another [2016] eKLR, wherein the Court held that the true character of a dispute must guide the determination of jurisdiction, such that contracts or transactions only tangentially related to land cannot be transformed into land matters to confer jurisdiction upon a court specially constituted to deal with land and environmental disputes. 28. Counsel for the 1st Respondent argues, that the present dispute, being essentially commercial, falls outside the constitutional and statutory mandate of this Honourable Court. 29. Counsel for the Applicants submits that the Preliminary Objection does not, in truth, raise a pure point of law as envisaged in Mukisa (supra). It is their contention that the objection, rather than presenting a question that can be determined at the threshold without reference to facts, is inseparably intertwined with the substantive issues of the case. 30. Counsel for the Applicants submits that central to the dispute is the status of the land upon which the construction project is sited, and whether such land qualifies as ‘public land’ within the meaning of the Constitution and the Land Act. 31. The Applicants’ counsel submits that the determination of this issue requires an examination of facts, the nature of the parties’ rights and interests, and the nexus between the project and the land itself. To elevate this objection to the level of a preliminary point of law, counsel argues, would be to constrict the dispute into a straitjacket that the law does not countenance, denying this Court the opportunity to consider the essential elements that bear directly upon its jurisdiction and the merits. 32. The Court acknowledges the force of counsel’s submission that the determination of jurisdiction in this matter engages questions of fact, the character of the parties’ rights, and the precise nexus between the project and the land upon which it was undertaken. Yet, even conceding these points, the substance of the dispute must guide the Court’s exercise of its authority. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/338/eng@2026-01-28 4

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33. While the Applicants contend that the Preliminary Objection cannot stand because it implicates factual inquiries, the Court must ask whether, in truth, the land itself is central to the claim or merely the stage upon which a commercial disagreement is enacted. 34. In applying the law to the facts before this Court, it is evident that the dispute, though situated on land, is governed in its substance by obligations arising under a construction contract. 35. The principles articulated in Mukisa Biscuit (supra) remind us that a Preliminary Objection must be confined to pure points of law, incapable of resolution without recourse to evidence; here, the objection hinges precisely on the Court’s authority to hear a commercial dispute that merely unfolds on a parcel of land. 36. The Predominant Purpose Test, as applied in Suzanne Achieng Butler, dictates that where the dominant character of a claim is commercial, the presence of land alone cannot transform it into a matter for the Environment and Land Court. 37. The Supreme Court in Karisa Chengo further underscores that jurisdiction is not a matter of convenience or label, but a solemn grant of power, to be exercised strictly within constitutional and statutory bounds. 38. Accordingly, having scrutinized the pleadings and the material before me, I am satisfied that the land serves only as the backdrop to the commercial obligations at issue, and the real dispute concerns contractual performance and alleged breaches thereof. 39. The Preliminary Objection dated 5th September 2025 strikes at the very heart of this Court’s jurisdiction and, in the circumstances, must be upheld. 40. The Notice of Motion Application dated 4th June 2025 together with the Plaint of even date are thus incompetent and cannot be entertained by this court and are accordingly dismissed with costs. It is so ordered. DATED, SIGNED AND DELIVERED, AT THIKA THIS 28TH DAY OF JANUARY 2026 J. M. ONYANGO JUDGE In the presence of: Mr. Maiyo for the Plaintifi Mr. Malik for Mr Khan for the 1st Defendant Ms Mwangi for Mr. Motare for the 2nd Defendant Court Assistant: Hinga https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/338/eng@2026-01-28 5

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