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ELCDismissedNot stated in the judgment extract

Cementers Limited v Multichoice Kenya Limited (Environment and Land Case E174 of 2023) [2025] KEELC 5333 (KLR)

Environment and Land Court
14 July 2025
MOMogeni
4,306 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court threw out a construction dispute, confirming that building contracts belong in the High Court, not the ELC.

What this practically means

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Executive summary

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The Plaintiff, Cementers Limited, filed a Notice of Motion dated 15 November 2023 seeking a prohibition order restraining MultiChoice Kenya Limited from selling, transferring, charging, leasing or otherwise dealing with LR No. Nairobi Block 13/415 (formerly LR No. 3734/21) in Lavington, Nairobi, pending determination of the suit. The application, supported by an affidavit of Ramesh Vishram, was anchored on Section 7(1) of the Arbitration Act and provisions of the Civil Procedure Act and Rules. The Defendant filed a replying affidavit sworn by its Finance Director, Ruth Omondi, contending that the building on the property had been demolished in March 2022 after being condemned for poor workmanship, that the parcel was not subject to the ongoing arbitration, and that the Applicant was forum shopping, had misled the court, and came with unclean hands. Before the motion was determined, the Defendant filed a preliminary objection dated 14 February 2024 asserting that the ELC lacked jurisdiction under Section 13 of the ELC Act since the claim was a commercial contract dispute already before an arbitrator, barred by Section 6 of the Arbitration Act. The Plaintiff did not file submissions on the objection. The court framed two issues: whether the objection raised pure points of law, and whether the court had jurisdiction. Relying on Mukhisa Biscuit, the Lillian S decision, Suzanne Achieng Butler and Co-operative Bank v Kangethe Njuguna, the court held the objection was a pure point of law and, applying the predominant purpose test, found the 2015 agreement was for construction rather than use, occupation or title to land. The objection succeeded; the plaint and the application were both dismissed with costs to the Defendant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Preliminary Objection raises pure points of law
  2. 2.Whether the Court has jurisdiction to hear and determine this suit

Key legal issues

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01

Whether the Preliminary Objection raises pure points of law

Holding

It does; the objection concerned jurisdiction, which can be determined on assumed facts without ascertaining any new facts or exercising discretion

Reasoning

Applying Mukhisa Biscuit and Hassan Ali Joho, the court held that an objection to jurisdiction on the face of the pleadings — that the claim was for liquidated damages for breach of a construction contract — raised pure questions of law requiring no factual inquiry, and so was properly the subject of a preliminary objection.

p. 7
02

Whether the ELC has jurisdiction over the suit

Holding

No. Applying the predominant purpose test, the dispute arose from a construction contract, not a dispute over use, occupation or title to land

Reasoning

The court adopted Suzanne Achieng Butler and Co-operative Bank v Kangethe Njuguna, noting the Court of Appeal settled for the predominant purpose test. The 18 March 2015 agreement was for construction of an office development for Kesh 895,000,000; the dispute was a claim for liquidated damages for breach of contract and did not concern use, occupation or alienation of land. The ELC therefore lacked jurisdiction.

p. 8

Legal principles established

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  • A preliminary objection on jurisdiction raises a pure point of law
  • In a mixed transaction, the ELC has jurisdiction only if the predominant purpose is land; if predominantly for construction of works or provision of goods, jurisdiction lies in the High Court
  • A construction contract, as opposed to an agreement concerning use, occupation or title to land, does not fall within the jurisdiction of the Environment and Land Court

Court orders

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  1. 1.The Preliminary Objection by the Defendant succeeds entirely
  2. 2.The Plaint dated 15/11/2023 is dismissed
  3. 3.The Notice of Motion dated 15/11/2023 is dismissed
  4. 4.The Plaintiff shall bear the costs of the Application as well as the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MO
majority

Wrote the judgment

Jurisdiction invoked
Article 162(2) of the Constitution as read with Section 13 of the Environment and Land Court Act, 2011

Relief refused

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Prohibition order restraining dealing with LR No. Nairobi Block 13/415 (formerly LR No. 3734/21)

The suit fell outside the ELC's jurisdiction as the predominant purpose of the contract was construction, not use of land; both the suit and the application were dismissed

p. 8

Costs

The Plaintiff shall bear the costs of the Application as well as the suit herein

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I do therefore find that the Preliminary Objection raised by Defendant is one on pure point of law.
p. 7Nature of preliminary objection
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.
p. 7Predominant purpose test for ELC jurisdiction
It is evident that the contract was for construction and not an agreement for use, occupation and alienation of land.
p. 8Characterisation of the 2015 agreement
Consequently, the Plaint and the Notice of Motion filed herein, both dated 15/11/2023 are dismissed. As costs follow the event and the Defendant has succeeded in its Preliminary Objection, the Plaintifi shall bear the costs of the Application as well as the suit herein.
p. 8Final orders and costs

Issues in the judgment

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minor

The suit property is inconsistently described: the application refers to LR No. 3734/21, while the Plaintiff's affidavit refers to LR No. 3734/421

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Cementers Limited v Multichoice Kenya Limited (Environment and Land Case E174 of 2023) [2025] KEELC 5333 (KLR)", Case Analysis (2025). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5333/eng@2025-07-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.