Nderitu v Heritage Properties Limited & 2 others

the matter. The Court noted that the dispute required examination in light of Article 162 of the Constitution and Section 13 of the Environment and Land Court Act. 3. In light of these concerns, the Court invited the Plainti to address it on the issue of jurisdiction. The Plainti led submissions which were orally highlighted on 17th September 2026. Analysis and Determination 4. The sole issue for determination is whether, having regard to the pleadings and the reliefs sought, this Court has jurisdiction to entertain the Plainti's suit. 5. Jurisdiction is a threshold issue which must be determined at the earliest opportunity. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, the Court of Appeal famously stated that: “ Jurisdiction is everything. Without it, a court has no power to make one more step.” 6. The Court further held that where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. The question before this Court is therefore not whether the Plainti may ultimately have a proper claim, but whether that claim has been presented before the proper forum. 7. The jurisdiction of this Court is constitutionally circumscribed. Article 162(2)(b) of the Constitution provides: “ 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.” 8. Parliament consequently enacted the Environment and Land Court Act, No. 19 of 2011. Section 13(1) thereof provides that the Court has jurisdiction to hear and determine disputes in accordance with Article 162(2)(b) of the Constitution and the Act, while Section 13(2) species the categories of disputes falling within that jurisdiction, including disputes relating to environmental planning and protection, land use planning, title, tenure, boundaries, land administration and management, public, private and community land, and contracts or instruments granting enforceable interests in land. 9. It is therefore necessary to identify the true nature and substance of the dispute before the Court. The mere fact that a dispute has some connection with land does not, without more, confer jurisdiction upon the Environment and Land Court. The Court of Appeal has adopted the approach that the cause of action and the dominant issue in dispute must be examined. 10. In Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others [2017] KECA 79 (KLR), the Court of Appeal, while considering the respective jurisdictions of the High Court and the ELC, held that: “ Furthermore, the jurisdiction of the ELC to deal with disputes relating to contracts under Section 13 of the ELC Act ought to be understood within the context of the court’s jurisdiction to deal with disputes connected to ‘use’ of land as discussed herein above. Such contracts, in our view, ought to be incidental to the ‘use’ of land...” 11. The Court went on to emphasize that although the ELC has jurisdiction over certain contractual disputes, such jurisdiction is not an unlimited jurisdiction over every contract which happens to have a connection with land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5702/eng@2026-09-22 2

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12. The same approach has been applied in more recent decisions. In Aden & 4 others v Kiptum & 6 others; Xplico Insurance Company (Interested Party) [2025] KEELC 3144 (KLR), the Environment and Land Court expressly applied the predominant purpose test, holding that where a transaction involves both land and other matters, the Court must determine whether its predominant purpose concerns land or matters falling within the jurisdiction of the High Court. 13. The plainti through his advocate Mr. Ole Kina, while acknowledging the Court of Appeal decision in the Cooperative Bank –vs- Kang’ethe case distinguishes it from his case submitting that the holding by the Court of Appeal is not a general ouster of the ELC jurisdiction over contracts concerning land. It was specic on a particular class of contracts being mortgages, charges and the accounting of banker –lender debts. In his case, the learned advocate points out that there is no bank involved nor a charge; neither is there loan account in dispute. Instead, there is a written agreement for sale of a specic house on identied land, a failure to transfer title and a continuing dealing with that land including the proposed sale of house No. 13 to a third party. The said contract is a land transaction. 14. I have carefully considered the plainti’s submissions and the pleadings. Though the 1st agreement between the plainti and the defendant(s) was a project investment agreement whereby the plainti was entitled to 10% preferential shareholding in the 2nd defendant company and a return of 30% per annum, the parties mutually agreed that the plainti’s investment comprising of the principal and interest at 30% per annum would be converted as a deposit towards the purchase of two villa units. The parties formalized the agreement on 4th May 2020. 15. From the pleadings as framed by the Plainti, the contracting parties mutually converted the initial investment into an agreement for sale of land. Based on the conversion, the plainti prays for an order of specic performance of the 2020 agreements for the sale and deliver of two completed villa units (or equivalent plots) together with the registered titles. This puts the claim squarely within the jurisdiction of the Environment and Land Court in accordance with the provisions of Article 162(2)(b) of the Constitution and Section 13(2) of the ELC Act. 16. The court is persuaded that it has the requisite jurisdiction to hear and eventually determine this suit. 17. The court will therefore proceed to give appropriate direction on the pending application accordingly. Orders accordingly. DATED SIGNED AND DELIVERED VIRTUALLY THIS 22ND DAY OF SEPTEMBER, 2026. M.D. MWANGI JUDGE 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/2026/5702/eng@2026-09-22 3

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