Waterman Drilling Limited v Daniel Kariuki Mbugua

liberty to deal with the already drilled borehole as they deem fit; d) Further and in alternative that the defendant removes the obstacle in the subject borehole, cases the borehole to full depth, at a cost of kshs. 1,195,233/- being charges on a pro-rata basis and refunds kshs.109,767.00/- being the balance after deducting the deposit already paid. e) Costs of the suit and interest thereon at court’s rate. 2. As can be discerned from the averments/contentions in the plaint the respondent’s suit against the appellant was premised on alleged breach of contract for drilling a water borehole by the appellant occasioning the respondent loss and damage. 3. The appellant filed a statement of defence dated 6 th June, 2022 in which it inter alia denied having breached the terms of the contract entered into between it and the respondent. 4. When the suit came up for hearing parties led evidence in support of their pleaded cases and vide a judgment NYAHURURU ELCPEA NO E002 OF 2025 – RULING 2|Page

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delivered on 9th December, 2025 the trial court entered judgment in favour of the respondent in the following terms: a. The defendant is ordered to remove the obstacle it left in the borehole, do the casing of the borehole to the full depth of 160 metres at a total cost of Kshs.1,195,233/- charged on pro rata basis and refund Kshs.109,233/- charged to the plaintiff. b. In alternative, the defendant to refund Kshs.1,305,000/- being the deposit already paid and the plaintiff to be at liberty to drill a fresh borehole. c. The plaintiff is awarded Kshs. 27,000/- being the cost of engaging an independent expert-Horizon drilling company limited and costs of the suit. d. Interest is awarded on the above from the date of this judgment. e. The claim for general damages was not proved and the same is declined. 5. Dissatisfied with the decision of the trial court, the defendant, now, appellant NYAHURURU ELCPEA NO E002 OF 2025 – RULING filed the instant appeal. 3|Page

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Alongside the appeal, the appellant filed the notice of motion/application 18th December 2025 in which it seeks stay of execution of the judgment pending hearing and determination of the application and the appeal. 6. The application is opposed by the respondent vide a replying affidavit dated 17th February 2026 and a notice of preliminary objection of an even date. In the preliminary objection the respondent inter alia contends that this court lacks jurisdiction to entertain the appeal as the dispute presented before the lower court concerned breach of a borehole drilling contract, an ordinary civil or commercial dispute and not a dispute involving land ownership, occupation, bounderies, environmental protection or land use. 7. It is the respondent’s case that the appellant cannot transform a contractual dispute into a land dispute merely because the contract concerned a borehole. According to the respondent the proper appellate court is the high court exercising its ordinary civil jurisdiction. NYAHURURU ELCPEA NO E002 OF 2025 – RULING 4|Page

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8. Terming the memorandum of appeal filed in this appeal and the application for stay incompetent forbeen founded on an incompetent appeal, the respondent urges this court to strike out both the appeal and the application for stay with costs to him. 9. In a rejoinder, the appellant, through its submissions dated 3rd June 2026 submits that the dispute falls within the jurisdiction of this court because it concerns land usenatural resources beneath land and rights arising from activities carried out on land. The applicant makes reference to article 162 2 b of the constitution of kenya 2010 and to section 13 of the environment and land court act which gives power to this court to determine disputes relating to: land use and planning; land title and boundaries; environment protection and contracts and other interests connected with land. The applicant further makes reference to the case of cooperative bank of kenya limited vs Patrick kang’ethe Njuguna & 5 others where the court held that elc’s jurisdiction depends on the nature and substance of the dispute not merely how it is framed. NYAHURURU ELCPEA NO E002 OF 2025 – RULING 5|Page

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10. The applicant further points out that the respondent originally filed the case in the environment and land court through the magistrate’s elc jurisdiction and because the issue of the lower court’s jurisdiction was never raised during trial, submits that the respondent should not challenge the jurisdiction now. 11. The applicant asserts that the dispute concerns environment and land issues. Analysis and determination 12. I have read and considered the case preferred before the lower court, which culminated in the appeal before this court, the application by the appellant/applicant and the response thereto, particularly the preliminary objection by the respondent concerning this court’s jurisdiction to hear and determine the appeal and the application accompanying it. 13. The issue as to whether or not this court has jurisdiction to hear and determine the instant appeal and the notice of motion accompanying it being a threshold issue, I will determine it first for without jurisdiction to hear and NYAHURURU ELCPEA NO E002 OF 2025 – RULING 6|Page

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determine the appeal, this court cannot make any step in respect thereto. In that regard see Mediratta & 17 others v Karen Hills Limited & 2 others (Environment and Land Case E047 of 2021) [2026] KEELC 684 (KLR) (12 February 2026) (Ruling) where the Court stated/held: “It is trite that jurisdiction is everything. This position was succinctly captured by Nyarangi, J.A. in Owners of Motor Vessel ‘Lillian S’ vs Caltex Oil (Kenya) Limited [1989] KLR 1 thus: “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 possess, its jurisdiction decision which it does amounts to not nothing. Jurisdiction must be acquired before judgment is given. 32.Elaborating on the same, the Supreme Court in In the Matter of the Interim Independent Electoral Commission (Applicant) (Constitutional Application 2 of 2011) [2011] KESC 1 (KLR) (20 December 2011) (Ruling) stated: “Assumption of jurisdiction by courts in NYAHURURU ELCPEA NO E002 OF 2025 – RULING 7|Page

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Kenya is a subject regulated by the Constitution, by statute law, and by principles laid out in judicial precedent. The classic decision in this regard is the Court of Appeal decision in Owners of Motor Vessel ‘Lillian S’ v. Caltex Oil (Kenya) Limited [1989] KLR 1, which bears the following passage (Nyarangi, JA at p.14):“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step.” The Lillian ‘S’ case establishes that jurisdiction flows from the law, and the recipient-Court is to apply embodied the same, therein. with Such any a Court limitations may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavors to discern or interpret the intentions of Parliament, where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdictions are donated by the Constitution.” NYAHURURU ELCPEA NO E002 OF 2025 – RULING 8|Page

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14. On whether this Court has jurisdiction to hear and determine accompanying the application, appeal and I carefully have the reviewed the nature of the dispute presented before the lower court and the applicable legal guidelines espoused in the case of Muli v Mbuli & another (Civil Case E135 of 2024) [2025] KEHC 3745 (KLR) (Civ) (26 March 2025) (Ruling) and Mediratta & 17 others v Karen Hills Limited & 2 others (Environment and Land Case E047 of 2021) [2026] KEELC 684 (KLR) (12 February 2026) (Ruling) and infra. 15. In Muli v Mbuli & another (Civil Case E135 of 2024) [2025] KEHC 3745 (KLR) (Civ) (26 March 2025) (Ruling) the Court stated/held: “…Article 162(2)(b) of the Constitution establishes the ELC to hear disputes relating to the environment, use, occupation, and title to land. 11.Article 165(5)(b) of the Constitution explicitly states that the High Court shall not have jurisdiction over matters falling within the jurisdiction of the ELC. 12.Section 13(2)(e) of the Environment and Land Court Act grants the ELC jurisdiction over disputes relating to land, including leases, tenancies, and contracts involving land. NYAHURURU ELCPEA NO E002 OF 2025 – RULING 9|Page

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13.Section 150 of the Land Act, 2012, reinforces the ELC's jurisdiction over landrelated disputes. 14.In Suzanne Butler & 4 Others v Redhill Investments & Another (2017) eKLR the Court held that:“When faced with a controversy whether a particular case is a dispute about land (which should be litigated at the ELC) or not, the Courts utilize the Pre-dominant Purpose Test: In a transaction involving both a sale of land and other services or goods, jurisdiction lies at the ELC if the transaction is predominantly for land, but the High Court has jurisdiction if the transaction is predominantly for the provision of goods, construction, or works. The Court must first determine whether the pre-dominant purpose of the transaction is the sale of land or construction. Whether the High Court or the ELC has jurisdiction hinges on the predominant purpose of the transaction, that is, whether the contract primarily concerns the sale of land or, in this case, the construction of a townhouse. Ordinarily, the pleadings give the Court sufficient glimpse to examine the transaction to determine whether sale of land or other services was the predominant purpose of the contract. This test accords with what other NYAHURURU ELCPEA NO E002 OF 2025 – RULING 10 | P a g e

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Courts have done and therefore lends predictability to the issue." 15.In line with the court in the Suzanne Butler case supra, in the case of Amina Mohamed Harith v Chakama Ranching Company Limited & 5 others (2023) KEHC 1572 (KLR), the court applied the "predominant purpose test" to determine whether a dispute primarily concerns land. If the predominant purpose of the transaction is land-related, the ELC has jurisdiction. 16.In the case of Paul Mwai & another v John Muiruri (2020) eKLR, the court held that disputes involving land use, occupation, and title must be heard by the ELC. The court emphasized that the High Court cannot usurp the jurisdiction of the ELC….18. The lease agreement is a contract involving land, and its termination directly affects the Plaintiff's rights to occupy and use the property. This places the dispute within the jurisdiction of the ELC, as held in Paul Mwai & another v John Muiruri (2020) eKLR and Amina Mohamed Harith v Chakama Ranching Company Limited & 5 case of others (2023) KEHC 1572 (KLR). 19.The Plaintiff's reliance on the Nandlal Jivraj Shah & 2 others v Kingfisher Properties Limited (2015) eKLR is misplaced, as NYAHURURU ELCPEA NO E002 OF 2025 – RULING 11 | P a g e

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that case involved eviction proceedings where the landlord-tenant relationship had already ended. In the present case, the dispute is still tied to the lease agreement and the use of land. 20.The Preliminary Objection raised by the Defendants is merited. The dispute in this case relates to the use and occupation of land, which falls within the exclusive jurisdiction of the Environment and Land Court.” 16. In Mediratta & 17 others v Karen Hills Limited & 2 others (Environment and Land Case E047 of 2021) (12 February 2026) [2026] KEELC 684 (KLR) (Ruling) the Court stated/held: “The Environment and Land Court and the High Court of Kenya are courts of equal status albeit with different jurisdictions. Article 165(3) of the Constitution vests the High Court with unlimited original jurisdiction in both civil and criminal matters, and authority to determine whether a right or fundamental freedom in the NYAHURURU ELCPEA NO E002 OF 2025 – RULING 12 | P a g e

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Bill of Rights has been denied, violated, infringed, or threatened. 34.Additionally, the High Court is empowered to interpret the Constitution, including determining the validity of laws or acts alleged to contravene it, resolving questions on the constitutional powers and relationships between national and county governments, and addressing conflicts of laws under Article 191. Further, the court may exercise any other jurisdiction, original or appellate conferred by legislation. 35.Under Article 165(6), the High Court also has supervisory jurisdiction over subordinate courts and any person or body exercising judicial or quasi-judicial authority, except over superior courts. 36.On the other hand, the broad jurisdiction of this court is donated by Article 162(2) of the Constitution of Kenya which provides that:“Parliament shall establish courts with the NYAHURURU ELCPEA NO E002 OF 2025 – RULING 13 | P a g e

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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…” 37. Pursuant to the constitutional mandate above, Parliament enacted the Environment and Land Court Act. At Section 13(2), the Act provides that:“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 acquisition of land to (c)relating compulsory to land administration and management;(d) relating to public, private contracts, and choses community land in or action and other instruments granting any enforceable interests in land; and (e)any other dispute relating to environment and land.” NYAHURURU ELCPEA NO E002 OF 2025 – RULING 14 | P a g e

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38.This court is also empowered to determine claims alleging the denial, violation, or threat to the constitutional right to a clean and healthy environment under Articles 42, 69, and 70 of the Constitution. In addition, the court has the mandate to exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the court. 39.In Republic vs Chengo & 2 others (Petition 5 of 2015) [2017] KESC 15 (KLR) (26 May 2017) (Judgment), the court, jurisdictional limits of delving the into superior the courts noted:“[50] … Article 162(1) categorizes the ELC and ELRC among the superior Courts and it may be inferred, then, that the drafters of the Constitution intended to delineate the roles of ELC and ELRC, for the purpose of achieving specialization, and conferring equality of the status of the High Court and the new category of Courts. Concurring NYAHURURU ELCPEA NO E002 OF 2025 – RULING with this view, the 15 | P a g e

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learned Judges of the Court of Appeal in the present matter observed that both the specialised Courts are of “equal rank and none has the jurisdiction to superintend, supervise, direct, shepherd and/or review the mistake, real or perceived, of the other”. Thus, a decision of the ELC or the ELRC cannot be the subject of appeal to the High Court; and none of these Courts is subject to supervision or direction from another.(52)In addition to the above, we note that pursuant to Article 162(3) of the Constitution, Parliament enacted the Environment and Land Court Act and the Employment and Labour Relations Act and respectively outlined the separate jurisdictions of the ELC and the ELRC as stated above. From a reading of the Constitution and these Acts of Parliament, it is clear that a special cadre of Courts, with suis generis jurisdiction, is provided for. We therefore entirely concur with the Court of Appeal’s decision that such parity NYAHURURU ELCPEA NO E002 OF 2025 – RULING 16 | P a g e

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of hierarchical stature does not imply that either ELC or ELRC is the High Court or vice versa. The three are different and autonomous Courts and exercise different 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.” 40.Courts have had occasion to consider how jurisdiction is to be determined where a question arises as to which of the superior courts has Historically, emerged jurisdiction two within in principal the a given matter. approaches superior courts: have one favouring the “predominant purpose test,” and the other advocating for the “predominant issue before the court test.” 41.The proponents of the former include Ngugi, J who rendered himself in Suzanne Achieng NYAHURURU ELCPEA NO E002 OF 2025 – RULING 17 | P a g e

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Butler & 4 Others vs Redhill Heights Investments Limited & Another (2016) eKLR as follows:“ 23.When faced with a controversy whether a particular case is a dispute about land (which should be litigated at the ELC) or not, the Courts utilize the Pre-dominant Purpose Test: In a transaction involving both a sale of land and other services or goods, jurisdiction lies at the ELC if the transaction is predominantly for land, but the High Court has jurisdiction if the transaction is predominantly for the provision of goods, construction, or works. 24.The Court must first determine whether the pre-dominant purpose of the transaction is the sale of land or construction. Whether the High Court or the ELC has jurisdiction hinges on the predominant purpose of the transaction, that is, whether the contract primarily concerns the sale of land or, in this case, the construction of a townhouse. NYAHURURU ELCPEA NO E002 OF 2025 – RULING 18 | P a g e

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Ordinarily, the pleadings give the Court sufficient glimpse to examine the transaction to determine whether sale of land or other services was the predominant purpose of the contract. This test accords with what other Courts have done and therefore lends predictability to the issue. In my view, the following factors are significant in determining the nature of the contract: a. The language of the contract; b. The nature of the business of the vendor; c. If the contract is mixed, the intrinsic worth of the two parts – land acquisition and other services or provision of materials; d. The gravamen of the dispute – whether rooted in contests about ownership, deficiency in title, occupation or use of the land or whether the genesis of the dispute is something else like the quality of services offered, construction, works and so forth; NYAHURURU ELCPEA NO E002 OF 2025 – RULING 19 | P a g e

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e. The remedies sought by the Plaintiff. At the same time, however, it is imperative that a Court should not approach jurisdiction in an ultra-technocratic fashion as an essentialist parsing of sticks in a bundle. Jurisdiction is a substantive standard aimed at ensuring only the right court or tribunal clothed with the legitimate mandate deals with a dispute or controversy. It is not a jurisprudential thaumatrope to keep litigants guessing to which (sic) Court their controversy belongs at the pain of having their timeously pleaded case struck out for not pigeon-holing their claim in the correct box. The correct approach to jurisdiction is one which treats the question functionally as opposed to technically; one that looks at the constitutional objectives in creating equal status Courts as opposed to engaging in an essentialist, taxonomical and categorical analysis.” NYAHURURU ELCPEA NO E002 OF 2025 – RULING 20 | P a g e

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42.Munyao, J was for the other test. In Lydia Nyambura Mbugua vs Diamond Trust Bank Kenya Limited & Another [2018] eKLR the Learned Judge expressed: “25… On my part, I would modify the above test, and hold the position that what is important when determining whether the court has jurisdiction, is not so much the purpose of the transaction, but the subject matter or issue before court, for I think that the purpose of the transaction, may at times be different from the issue or subject matter before court. Let us take the transaction of a charge as an example. The predominant purpose of creating a charge is for one to be advanced some financial facilities. However, when it comes to litigation, the predominant issue may not necessary be the money, but the manner in which the chargee, is exercising its statutory power of sale. Here, I trust that you will see the distinction between the predominant purpose NYAHURURU ELCPEA NO E002 OF 2025 – RULING 21 | P a g e

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of the transaction and the predominant issue before court. That is why I hold the view, that in making a choice of which court to appear before, one needs to find out what the predominant issue in his case is, and not necessarily, the predominant purpose of the transaction. If the litigant’s predominant issue will touch on the use of land, or occupation of land, or a matter that affects in one or another, title to land, then such issue would fall for determination before the ELC.” 43.The Court of Appeal had an occasion to, and dealt with the issue. In Joel Kyatha Mbaluka t/a Mbaluka & Associates Advocates vs Daniel Ochieng Ogola t/a Ogola Okello & Co Advocates KECA 504 (KLR), the learned Judges noted: “We reiterate the position taken in Cooperative Bank of Kenya Limited vs Patrick Kangethe construing Njuguna whether NYAHURURU ELCPEA NO E002 OF 2025 – RULING (supra), the that ELC in had 22 | P a g e

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jurisdiction in a matter, the consideration must be the dominant issue in the dispute and whether that issue relates to the environment and the use and occupation of, and title to, land. The dispute between the appellant and the respondent related to the professional undertaking given by the appellant to facilitate the land transaction between his client and the respondent’s client. ”We could not have put it more clearly. A professional undertaking in a legal transaction is a separate contract between advocates that creates legal obligations anchored on professional relationship and etiquette between the advocates. It creates an independent cause of action separate from the transaction undertaken by the advocates’ clients. Such an independent cause of action is reflected herein in the OS lodged by the respondent NYAHURURU ELCPEA NO E002 OF 2025 – RULING 23 | P a g e

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(who was respondent the plaintiff) sought orders wherein the against the appellant (who was the defendant) that: “the defendant do honour the professional 11th undertaking dated and…..fully indemnify March the 2016 clients in respect of all claims of interest to the tune of Kshs 800,000/= suffered by reason of breach of the defendants professional undertaking…….” (15)The dominant issue in the dispute that was before the learned Judge was the honouring of the professional undertaking, and not the land transaction between the advocates’ clients. The undertaking had nothing to do with the environment, or the use and occupation of land, or title to land. The land transaction that the advocates’ clients were engaged in was not in issue. The learned NYAHURURU ELCPEA NO E002 OF 2025 – RULING Judge therefore properly 24 | P a g e

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rejected the application to have the respondent’s suit transferred to the ELC.” 17. In applying the above legal principles to the circumstances of this case I have reviewed the pleading filed in the lower court and established that the dispute presented before the lower court was an ordinary civil dispute arising from breach of a contract for drilling of a borehole. Whilst the activity that was being undertaken was being undertaken on land or related to extraction of natural resources, water, the core dispute or predominant issue pleaded is breach of the contract for drilling a borehole. The orders sought in the plaint are orders for specific performance or refund of the consideration exchanged. The dispute is, therefore, not a dispute touching on use of land or environmental protection but a pure civil/commercial dispute arising from alleged breach of contractual obligations of the parties to the suit. The dispute was, therefore, not a dispute falling on the mandate of the Environment and Land Court under Article 162 (2) (b) or Section 13 of the Environment and Land NYAHURURU ELCPEA NO E002 OF 2025 – RULING 25 | P a g e

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Court Act. That being my view of the dispute presented before the lower court, I find and ought that this court lacks jurisdiction to hear and determine the appeal and the application for stay presented before it. 18. The upshot of the foregoing is that I find the preliminary objection by the respondent to be merited and strike out the appeal and the accompanying application out, with costs to the respondent. 19. Orders Accordingly. Ruling dated, signed and delivered at Nyahururu this 1st day of October, 2026 through Microsoft teams L. N. WAITHAKA JUDGE In the presence of:Mr Waichungo for the Applicant/Appellant Ms. Njoroge for the Respondent Court Assistant: Bedan NYAHURURU ELCPEA NO E002 OF 2025 – RULING 26 | P a g e

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