Kiragu v Ong'injo & 11 others (Environment and Land Case E036 of 2023) [2026] KEELC 4138 (KLR)

Introduction 1. The matter coming up before this Honorable Court for determination is a Notice of Preliminary Objection dated 28th April 2026, filed by the Plaintifi, Keziah Nduta Kiragu. The objection is primarily directed at the Counterclaim raised by the 1st and 2nd Defendants in their joint Defence and Counterclaim dated 6th July 2025. 2. To contextualize the Plaintifi's objection, it is necessary to briefiy outline the foundation of the 1st and 2nd Defendants' Counterclaim. The dispute revolves around the ownership, subdivision, and subsequent transfer of the land parcel initially known as Ngong/Ngong/2683. The 1st Defendant avers that while he was previously married to the Plaintifi, the marriage irretrievably broke down in 1984. He further asserts that he single-handedly purchased the suit property and obtained the title on 10th March 1979, denying the Plaintifi's claims of joint ownership. 3. According to the pleadings, the 1st and 2nd Defendants (who are currently cohabiting) subsequently subdivided and transferred the original parcel to the 3rd Defendant through the 10th Defendant, yielding new distinct title numbers, namely Ngong/Ngong/101233 - 101237. 4. Consequently, in their Counterclaim, the 1st and 2nd Defendants sought the following specific reliefs against the Plaintifi: a. A declaration that the 1st Defendant is the legitimate owner of Land Parcel Ngong/ Ngong/2683. b. A declaration that the subdivision and subsequent transfer of the said parcel to the 3rd to 10th Defendants is lawful. c. An injunction restraining the Plaintifi and her agents from trespassing upon or evicting the 3rd to 10th Defendants from the newly created Land Parcels Ngong/Ngong 101233 - 101237. d. The costs of the Counterclaim. 5. In response to these prayers, the Plaintifi raised the instant Preliminary Objection, raising a pure point of law. The Plaintifi contends that the Counterclaim dated 6th July 2025, and the specific reliefs sought therein, expressly violate the provisions of Section 13 of the Environment and Land Court Act. 6. The crux of the Plaintifi's objection is jurisdictional; it is argued that by virtue of the alleged statutory violation, this Honorable Court is not clothed with the requisite jurisdiction to entertain or grant the prayers sought in the 1st and 2nd Defendants' Counterclaim. Directions 7. The appeal was canvassed by way of written submissions, the submissions of which have been duly considered in the writing of this ruling. Analysis and Determination 8. The central questions before this Court for determination are twofold: first, whether the Plaintifi’s Notice of Preliminary Objection dated 28th April 2026 meets the strict legal threshold of a genuine preliminary point of law; and second, whether this Court is stripped of its jurisdiction to entertain the 1st and 2nd Defendants’ Counterclaim by virtue of Section 13 of the Environment and Land Court Act. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4138/eng@2026-07-02 2

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9. To resolve the first question, I must closely scrutinize the nature of the objection juxtaposed against the pleadings. The Plaintifi contends that the Counterclaim raises issues outside this Court's jurisdiction, thereby seeking an outright dismissal of the 1st and 2nd Defendants' claim. However, a meticulous reading of the Defence and Counterclaim reveals unresolved factual contest between the parties. The Plaintifi asserts that the suit property, initially known as Ngong/Ngong/2683, is matrimonial property acquired jointly with the 1st Defendant. Conversely, the 1st Defendant categorically asserts that he acquired the property independently prior to the marriage and subsequently subdivided it lawfully. 10. For this Court to determine the validity of the Counterclaim, it must inevitably interrogate evidence, and establish the exact timelines of the acquisition of the subject land. A preliminary objection cannot be sustained where the court is required to ascertain contested facts; it must strictly rely on agreed or uncontested facts and raise a pure question of law. Because the Plaintifi's objection inherently demands an inquiry into disputed land ownership facts, it is fundamentally a substantive defense masquerading as a preliminary point. 11. This reasoning is firmly anchored in the foundational jurisprudence established in Mukisa Biscuits Manufacturing Ltd -vs- West End Distributors (1969) EA 696, where Sir Charles Newbold P. authoritatively defined the strict parameters of preliminary objections, stating verbatim: “ A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion." 12. The Supreme Court of Kenya reinforced this exact principle in Hassan Ali Joho & Another vs Suleiman Said Shabal & 2 Others SCK Petition No. 10 of 2013 [2014] eKLR, holding verbatim: “ 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." 13. Turning to the second question regarding jurisdiction, the Plaintifi alleges that the specific reliefs sought in the Counterclaim ofiend Section 13 of the Environment and Land Court Act. Jurisdiction is the absolute lifeblood of any court, and a judge cannot assume or abdicate a constitutional mandate lightly. 14. The 1st and 2nd Defendants' Counterclaim specifically asks this Court to declare the 1st Defendant as the legitimate owner of the land, to pronounce the subsequent subdivisions and transfers to the 3rd through to the 10th Defendants as lawful, and to issue injunctive orders protecting the new parcels (Ngong/Ngong 101233-101237) from trespass. These prayers do not fall outside the realm of this Court; rather, they constitute the very essence of land use, title, and property rights. 15. To suggest that a specialized land court cannot hear a dispute over land ownership, the validity of subdivisions, and eviction is a fundamental misapprehension of the law. This Court is uniquely and exclusively empowered to adjudicate disputes that touch on the validity of land titles and the rights of occupation. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4138/eng@2026-07-02 3

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16. This judicial posture is explicitly supported by the unambiguous statutory framework of Section 13 of the Environment and Land Court Act (No. 19 of 2011), read alongside Article 162(2)(b) of the Constitution of Kenya. Section 13(2) dictates the court's power, stating verbatim: “ (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... (d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land." 17. Furthermore, the Plaintifi’s attempt to oust this Court's jurisdiction through a preliminary objection ignores the settled doctrine that a court's authority is strictly defined by the laws that created it. While a court cannot grant itself powers it does not legally possess, it equally cannot refuse to exercise the powers explicitly granted to it by Parliament. The Defendants rightly submit that the Environment and Land Court holds exclusive jurisdiction over matters of land and environment. If this Court were to uphold the Plaintifi's Preliminary Objection, it would amount to an unlawful abdication of its statutory duty to definitively determine the rights of the parties concerning the disputed subdivisions. 18. A court cannot artificially reduce or deny its own jurisdiction where the creators have expressly granted it, as is evidently the case here with disputes over land titles and subdivisions. 19. It is abundantly clear to this Court that the Plaintifi’s Notice of Preliminary Objection is conceptually and legally fiawed. It is neither a pure point of law capable of disposing of the suit without factual inquiry, nor is it correct in its assertion that this Court lacks the mandate to hear the dispute. The Counterclaim presents genuine, triable issues regarding the history of the property's acquisition, the legality of its subdivision, and the rights of the current title holders. These are weighty matters that demand full ventilation through trial. 20. To conclude, I am reminded of the strict judicial caution issued in Mukisa Biscuits Manufacturing Ltd -vs- West End Distributors (1969) EA 696, regarding the misuse of this procedural tool to prematurely derail legitimate claims. Sir Charles Newbold P. warned the legal profession verbatim: “ The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop." 21. Flowing from the comprehensive analysis above, I make the following final orders: a. The Plaintifi's Notice of Preliminary Objection dated 28th April 2026 is found to be entirely bereft of merit and is hereby dismissed. b. The 1st and 2nd Defendants' Defence and Counterclaim dated 6th July 2025 shall proceed to a full and substantive hearing alongside the main suit. c. The costs of this Preliminary Objection are awarded to the 1st and 2nd Defendants. Orders accordingly. DATED, SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 2ND DAY OF JULY 2026. M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4138/eng@2026-07-02 4

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In the virtual presence of: N/A by the parties Court Assistant: Alex M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4138/eng@2026-07-02 5

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