REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT THIKA ELC CASE NO. E236 OF 2025 NGARE NGIRO LIMITED………………………………………………PLAINTIFF VERSUS DICKSON KIBUNYI MAHIA ……..…………………….….….. 1ST DEFENDANT JOHN PETER NGENE ………………………………...……….. 2ND DEFENDANT MUGOMOINI HOLDINGS LIMITED …………………...….. 3RD DEFENDANT WEZA CONSTRUCTION CO. LTD ………………………….. 4TH DEFENDANT RULING 1. The Court is called upon to determine the 2nd and 3rd Defendants’ Notice of Preliminary Objection dated 26 th November 2025. By the said Notice, the 2nd and 3rd Defendants challenge, inter alia, the Plaintiff’s locus standi, the jurisdiction of this Court to entertain the suit and the competency of the Plaintiff’s claim on the ground that it is statute-barred under sections 4 and 7 of the Limitation of Actions Act, Cap. 22. 2. The Plaintiff opposed the Preliminary Objection in its entirety, terming it incompetent in law. It was the Plaintiff’s contention that the objection fell short of the settled threshold of a proper preliminary objection and, rather than raising pure questions of law, 1 THIKA ELC CASE NO E236 2025 (RULING)
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improperly invited the Court to determine contested questions of fact without the benefit of evidence. The Plaintiff consequently urged the Court to find the Preliminary Objection incompetent and dismiss it with costs. 3. The court directed the parties to canvass the Notice of Preliminary objection by written submissions. Both the Plaintiff and the 2 nd and 3rd Defendants have filed their respective submissions which the Court has considered together with the pleadings and the material on record. Issues for Determination 4. Having considered the Preliminary Objection and the parties’ respective submissions, I am of the view that the sole issue that emerges for determination is: whether the 2nd and 3rd Defendant’s Preliminary Objection has merit. Analysis and Determination 5. A preliminary objection is not defined by the title given to it. Its character is determined by the nature of the question it places before the Court. A preliminary objection is intended to determine a question of law without requiring the Court to enter into the factual contest between the parties. 6. The classic statement remains that of Law JA in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 2 THIKA ELC CASE NO E236 2025 (RULING)
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696, where a preliminary objection was described in the following terms: “So far as I’m aware, 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.” 7. Sir Charles Newbold, P. put the matter more sharply to wit: “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.” 8. A preliminary objection concerns the legal consequence of pleaded facts, not their factual veracity. Where the objection cannot be determined without first resolving a disputed fact, it is not a preliminary point of law but a matter for trial. That principle assumes particular significance in the present case, where the preliminary objection challenges the jurisdiction of this Court. 9. Jurisdiction is a threshold question and must therefore be determined first. If the Court lacks jurisdiction to entertain the suit, there would be no occasion to consider the remaining grounds of the 3 THIKA ELC CASE NO E236 2025 (RULING)
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Preliminary Objection. See: Owners of the Motor Vessel Lillian ‘S’ Vs. Caltex Kenya Limited [1989] KLR 1. 10. The jurisdiction of the Environment and Land Court is anchored in Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act. Article 162(2)(b) provides that: “Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to— (b) the environment and the use and occupation of, and title to, land.” 11. Section 13(1) of the Environment and Land Court Act, in turn, provides that: “The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.” 12. Section 13(2) further enumerates the disputes falling within that jurisdiction, including those relating to title, tenure, boundaries, land administration and management, compulsory acquisition, public, private and community land, and contracts or 4 THIKA ELC CASE NO E236 2025 (RULING)
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other instruments granting enforceable interests in land, as well as “any other dispute relating to environment and land.” 13. In Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others [2017] eKLR, the Court of Appeal underscored that, while exclusive, the jurisdiction of the ELC is limited to the matters prescribed by the Constitution and statute. The question, therefore, is whether the dispute before the Court falls within that jurisdiction. 14. From the pleadings, the Plaintiff asserts that it is the proprietor of land parcel 4953/2362 (hereinafter ‘the suit property’) having allegedly purchased the same from a public auction on 23rd April 1999 through an exercise of charges power of sale by Standard Chartered Bank Limited. The Plaintiff’s claim is that the Defendants, who are proprietors of or otherwise have interests in the adjoining parcels of land, have trespassed onto the suit property, uprooted the beacons and dug trenches thereon in preparation for construction. The Plaintiff consequently seeks injunctive relief and damages against the Defendants. 15. In my view, the substratum of the suit is the Plaintiff’s alleged proprietorship of the suit property and the Defendants’ alleged trespass thereon. The dispute therefore concerns title to, and use 5 THIKA ELC CASE NO E236 2025 (RULING)
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and occupation of, land and falls within the jurisdiction of this Court. 16. Having found that this Court has jurisdiction to entertain the suit, the next question is whether the Plaintiff’s claim is statutebarred under sections 4(1)(a) and 7 of the Limitation of Actions Act, Cap. 22. The 2nd and 3rd Defendants invoke both provisions in support of their preliminary objection. Section 4(1)(a) deals with actions founded on contract while Section 7 deals with actions to recover land. The first question, therefore, is what kind of action the Plaintiff has brought. 17. I have already found that this is a dispute concerning the Plaintiff’s asserted ownership of the suit property and the Defendants’ alleged trespass upon it. That finding is important to the question of limitation. 18. The public auction of 23 rd April 1999 is the event upon which the Plaintiff bases its asserted interest in the property. It is not, on the pleadings, the wrong complained of. The wrong complained of is the Defendants’ alleged trespass. 19. Section 4(1)(a) therefore has no application. It prescribes a limitation period for actions founded on contract, whereas the Plaintiff’s claim is not contractual in nature. Section 7 presents a 6 THIKA ELC CASE NO E236 2025 (RULING)
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different question. The 2nd and 3rd Defendants submit that the suit, having been filed twenty-six years after the 1999 auction, is time-barred, and that the 3rd Defendant remained in possession until 2025. However, the date of the auction does not determine when the Plaintiff’s right to recover the land accrued. That is a question dependent on the circumstances and duration of the 3rd Defendant’s possession and is not capable of determination on a preliminary objection. The objection on limitation consequently fails. 20. Lastly, I turn to the objection that the Plaintiff lacks locus standi to institute this suit. Locus standi is defined in Black’s Law Dictionary, 9th Edition (page 1026) as “the right to bring an action or to be heard in a given forum”. See: Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2014] eKLR. 21. The 2nd and 3rd Defendants submit that the Plaintiff has no recognizable interest in the land and therefore has no right to sue. Respectfully, I cannot accept that submission. The Plaintiff claims that the land is its property having allegedly acquired the same from an auction in 1999 and that the Defendants have trespassed upon it. That is, prima facie, enough to give it a right to come before the Court and ask for its complaint to be heard. 7 THIKA ELC CASE NO E236 2025 (RULING)
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Whether the Plaintiff can prove its interest is another matter. That is a question for the trial, not for a preliminary objection. The objection on locus standi therefore fails. 22. Accordingly, I find no merit in any of the grounds advanced in the Notice of Preliminary Objection dated 26 th November 2025. It is hereby dismissed with costs. Dated, signed and delivered virtually at Malindi this 21st day of September 2026. …………………….. J. M. ONYANGO JUDGE In the presence of: 1. Ms Kabaila for Mr. Mutiso for the Plaintiff 2. Ms Wakobwa for the 1st Defendant 3. Mr. Kuria for the 2nd and 3rd Defendants Court Assistant: Happy. 8 THIKA ELC CASE NO E236 2025 (RULING)
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