Mjad Investments Limited & 1 other v Fujita Corporation Kenya Branch
The bottom line
#Kenya's Court of Appeal confirmed that preliminary objections cannot rely on disputed facts, reviving a Mombasa land dispute for full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether a preliminary objection founded on contested facts is maintainable
It is not; a preliminary objection must be based on legal grounds only and assumes the truth of the facts alleged by the opposing party. Where facts such as ownership and the existence of a tenancy are disputed, the objection cannot stand.
Applying Mukisa Biscuits and Andrew Mwaura Githinji, the Court held that a preliminary objection proceeds on the basis that the facts alleged by the opposing party are true and that the court need not ascertain disputed facts. Here, ownership of the suit properties was contested, the alleged compulsory acquisition was disputed, and whether a tenancy existed was challenged. Since these contested facts would have to be ascertained, the preliminary objection was improperly taken and the learned Judge erred in sustaining it.
Whether the dispute was a controlled tenancy matter for the Business Premises Rent Tribunal or a land dispute for the Environment and Land Court
The dispute concerned contested ownership, occupation and title to land and therefore fell within the jurisdiction of the Environment and Land Court; the learned Judge misapprehended the facts in finding a controlled tenancy.
The appellants claimed their title to the suit properties had been interfered with by the respondent without colour of right or permission, while the respondent denied the appellants' ownership, asserting compulsory acquisition by the Government in 2014. The alleged tenancy arose only from an unexecuted draft lease proposed by the appellants. With ownership and existence of a tenancy both contested, the Court held the Judge erred in finding a controlled tenancy and in declining jurisdiction; the dispute belonged to the ELC.
Legal principles established
#- A preliminary objection must rest on pure questions of law and proceeds on the assumption that the facts alleged by the opposing party are true; where the facts are disputed and must be ascertained, the objection is improperly taken.
- Where ownership or occupation of land is contested, the dispute over use, occupation and title to land falls within the jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution, section 13 of the Environment and Land Court Act and section 150 of the Land Act, 2012.
Court orders
#- 1.The appeal is allowed
- 2.The orders and decree contained in the ruling delivered on 7th March 2023 are set aside
- 3.The appellants' claim shall be heard and determined by a Judge other than the learned L.L. Naikuni, J.
- 4.The costs of the appeal be paid to the appellants by the respondent
- On appeal from
- Environment and Land Court, Mombasa
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction over the Environment and Land Court (appeal from the ruling dated 7th March 2023); substantive jurisdiction under Articles 162(2)(b) and 165(5)(b) of the Constitution, section 13 of the ELC Act and section 150 of the Land Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mjad Investments Limited & 1 other v Fujita Corporation Kenya Branch", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1698/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.