Ethics and Anti-Corruption Commission v Gathoni & 2 others (Environment & Land Case E256 of 2024) [2025] KEELC 683 (KLR)
The bottom line
#Kenya's Environment and Land Court protected a Nairobi playground from sale or development, ruling claims over public land are not time-barred.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Preliminary Objection dated 20th September, 2024 is competent and if so, merited
- 2.Whether the Motion dated 20th September, 2024 is fatally defective and if not, whether it is merited
- 3.Whether the Plaintiff has met the threshold for the grant of temporary injunctive orders
Key legal issues
#Competency and merit of the Preliminary Objection
Only the limitation plea was a proper point of law; it failed because the suit is excluded from the Limitation of Actions Act under Section 42(1)(d). The objection was dismissed in its entirety.
Applying Mukisa Biscuits and Hassan Ali Joho, the court found the limitation plea a pure point of law but misjoinder, scandalousness and abuse-of-process pleas required fact-finding or discretion and were improper preliminary objections. The suit, being one by the Plaintiff to recover alienated Government land designated as a public utility, fell within Section 42(1)(d) and was therefore not time barred despite the 1993 cause of action.
Whether the Defendants' Motion to strike out the Plaint was fatally defective for lack of a supporting affidavit, and whether it was merited
The Motion was not fatally defective because no affidavit evidence is admissible under Order 2 Rule 15(1)(a), but it was unmerited as the Plaint raised serious triable issues.
Order 2 Rule 15(1)(a) expressly excludes evidence on such applications. On the merits, applying DT Dobie and Blue Shield, striking out is drastic and reserved for hopeless cases. The Plaint pleads fraud, breach of statutory and fiduciary duty and abuse of office by the 1st Defendant and particulars of fraud against the 2nd Defendant, raising serious triable issues requiring rebuttal at trial.
Whether the threshold for a temporary injunction was met
The Plaintiff established a prima facie case and irreparable harm; a temporary injunction was granted restraining the 2nd Defendant from dealing with L.R 209/11858.
Applying Giella and Nguruman sequentially, the court found documentary evidence of the playground designation, the fraudulent transfer, the familial links and the NLC revocation unchallenged, since the Defendants filed only Grounds of Opposition which cannot controvert sworn averments. The public right to the playground was materially threatened and loss of public space is not monetarily compensable.
Legal principles established
#- Proceedings by the Government to recover possession of Government land are excluded from the Limitation of Actions Act
- Striking out of pleadings is a drastic remedy to be exercised only in the clearest of circumstances
- A motion under Order 2 Rule 15(1)(a) to strike out a pleading for disclosing no reasonable cause of action does not require a supporting affidavit
- Grounds of Opposition cannot amount to a proper denial of allegations made on oath
Court orders
#- 1.The Preliminary Objection dated 20th September, 2024 is found to be unmerited and dismissed with costs
- 2.The Motion dated 20th September, 2024 is found to be unmerited and is dismissed with costs
- 3.A temporary injunction issued restraining the 2nd Defendant, its servants, employees, and/or agents from trespassing, alienating, selling, charging, or further charging, leasing, developing, sub-dividing, transferring, wasting, disposing or in any other manner dealing with L.R 209/11858 pending the hearing and determination of the suit
- 4.The 1st and 2nd Defendants to bear the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land; applications under Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 40(1) and 51(1) of the Civil Procedure Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A temporary injunction does hereby issue restraining the 2nd Defendant, its servants, employees, and/or agents from trespassing, alienating, selling, charging, or further charging, leasing, developing, sub-dividing, transferring, wasting, disposing or in any other manner dealing with the parcel of land known as L.R 209/11858 pending the hearing and determination of this suit.
The Preliminary Objection dated 20th September, 2024 is found to be unmerited and dismissed with costs.
The Motion dated 20th September, 2024 is found to be unmerited and is dismissed with costs.
It is apparent from the foregoing that the Plaintifi's suit is one in respect of which Section 42 (1) of the Limitation of Actions Act applies. Consequently, the cause of action is not barred by limitation as set out in the provisions thereof.
While the 1st and 2nd Defendants filed submissions in opposition to the plea for injunction, the same do not constitute pleadings. The factual averments deponed to by the Plaintifi remain unchallenged and uncontroverted.
Indeed, the loss of the right to enjoy public space is not something that can be monetarily compensated.
Issues in the judgment
#The judgment cites 'Order 12 Rule 15(1)(a)' when the application and quotation are under Order 2 Rule 15(1)(a) of the Civil Procedure Rules
The case number and neutral citation of the suit are not stated anywhere in the judgment extract
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethics and Anti-Corruption Commission v Gathoni & 2 others (Environment & Land Case E256 of 2024) [2025] KEELC 683 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/683/eng@2025-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.