Muriithi v Ngachi & another

from the land in dispute and the applicant has not established any nexus between the Respondent and the suit parcel. e) THAT the applicant has failed to act with due diligence in identifying the proper subject matter and owner rendering the suit liable to be struck out with costs. 2. The court directed for the notice of preliminary objection be dispensed off by written submissions and both parties complied with the 1st Defendant drafting submissions dated 23rd January 2026 while the Plaintiff drafted submissions dated 30th May 2026. Respondent’s submissions 3. In support of his preliminary Objection, the 1st Defendant indicated that the plaintiff had failed to establish any connection between the suit property and the 1st Defendant whereas for one to institute a claim for land disputes it must be brought against who has legal interest or possession of the land in dispute. This they argued ousted the court’s jurisdiction, making the suit incompetent and that it was an abuse of the court’s process. 4. The plaintiff in rebuttal submitted that the preliminary objection did not meet the threshold set for what constitutes a notice of preliminary objection as it contended on issue of facts and not law relying on what was stated In Repes Sairowua Vs Nareyioen Olorgeso & another [2021] KEELC 1642 (eKLR), where the court held that a Preliminary Objection cannot stand where it contains impermissible factual contentions which can only be proved by evidence. 2 ELCLC CASE NO. E654 OF 2025

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Counsel submitted that the court was vested with jurisdiction to entertain the matter ass the orders sought fell under what was envisioned in Article 162(2)(b). Analysis and determination 5. Having considered the Notice of Preliminary objection and the submissions herein the issues for determination are; i. Whether the Preliminary objection raises pure points of law? ii. Whether this Honourable Court has jurisdiction to hear and determine the matter? Whether the Notice of Preliminary raises pure points of law 6. The question that is to be answered is therefore if the issues raised to form matters of law so as to oust the jurisdiction of the court. The law on preliminary objections is well settled. A Preliminary Objection must be based on a pure point of law. In Mukisa Biscuits Manufacturing Company Ltd Vs West End Distributors Ltd (1969) EA 696, Law JA stated; “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. Examples are an objection to the jurisdiction of the Court or a plea of limitation or submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” The notice of preliminary objection dated 23rd January 2025 is founded on the notion that the suit is improperly before this court as 3 ELCLC CASE NO. E654 OF 2025

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it lacks jurisdiction to entertain the same. It goes without saying that without the requisite jurisdiction a court of law down its tools meaning that the objection, if successful, is capable of finally disposing the whole matter. The objection, therefore, attains the threshold of a pure preliminary point of law. Jurisdiction is everything, and a court must first be satisfied that it has the jurisdiction to determine a matter before embarking on determining the same. Jurisdiction is conferred by the Constitution or statute or both and a court cannot arrogate itself jurisdiction it does not have. In the case of Owners of the Motor Vessel “Lilian S” Vs Caltex Oil (Kenya) Ltd (1989), the court stated as follows; 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 its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction…..where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.” Whether the court has jurisdiction to entertain the matter 7. On the issue of whether the court has the jurisdiction to entertain the same, the 1st Defendant has raised the issue of not being the registered owner and that the Plaintiff has not established the connection as between himself and the suit property and hence cannot be sued in the claim in relation to the suit property. 4 ELCLC CASE NO. E654 OF 2025

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The 1st Respondent indicates that he is the owner of Nairobi/ Block/136/504 and not Nairobi Block/136/505 the suit property. The Plaintiff on the other hand points to the fact that the title held by the 1st Defendant over the suit property should be nullified on the basis of double registration and the 1st Defendant be restricted from interfering with the suit property. The dispute herein is one that involves the issue of occupation and title of land which is a dispute captured under Section 13(2) of the Environment and land Act which reads; 13(2) The jurisdiction of the ELC Court is set out in Section 13 of the ELC Act as follows under;1) 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. 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; 5 ELCLC CASE NO. E654 OF 2025

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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. 8. The sole purpose for the suit is to establish ownership of the suit property and the fact that the 1st Defendant alluded to not being the owner is an issue for this court’s determination making the dispute well within the jurisdiction of this court. Final disposition 9. The upshot of the above is that I make the following orders;i. That the Notice of Preliminary Objection dated 23rd January 2026 is not merited and is hereby struck out. ii. Costs be borne by the 1st Respondent. It is so ordered. DATED, SIGNED and DELIVERED via e-mail at NAIROBI on this 16th day of July 2026. 6 ELCLC CASE NO. E654 OF 2025

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MOHAMMED N. KULLOW JUDGE 7 ELCLC CASE NO. E654 OF 2025

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