Fuks v Cotswold Estate Limited (Environment and Land Case E078 of 2024) [2025] KEELC 5840 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a Diani land dispute suit because it had already been decided and rent tribunals, not the ELC, handle controlled tenancy evictions.
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 3rd February, 2025 met the thresholds of an objection as stipulated under the law and precedents
- 2.Whether this suit is res judicata
- 3.Whether the Court is clothed with jurisdiction to entertain the suit taking into account the Notice to Terminate Tenancy under Section 4(5) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act
- 4.Whether, if (a), (b) and (c) are in the negative, the Notice of Motion dated 3rd December, 2024 meets the threshold of a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules, 2010
- 5.Whether there was proof of alleged perjury and subornation committed by the Plaintiff's Advocate and the legal consequences thereof
- 6.Who bears the costs of the Notice of Motion dated 3rd December, 2024 and the Notice of Preliminary Objection dated 3rd February, 2025
Key legal issues
#Whether res judicata can ground a preliminary objection
The Court found the res judicata objection to be a valid preliminary objection and sustained it, holding that the issue of ownership of Kwale/Diani/63 was conclusively determined in Kwale ELC Petition No. 4 of 2021
The Court identified the prior Petition between the same parties over the same property, decided by the same competent court on 1st December 2023, which found the Defendant's lease extended for 50 years from 1st May 1999. That judgment had not been set aside or varied, and returning to the same court by plaint to alter it was gross misconduct. The Court applied the four-limb test of res judicata under Section 7 of the Civil Procedure Act.
Whether the ELC had jurisdiction given the BPRT proceedings on the tenancy notice
The ELC lacked jurisdiction because the parties were in a controlled tenancy and the BPRT is vested with jurisdiction over such disputes, including injunctive relief
The tenancy, being oral, was a controlled tenancy under Section 2 of Cap 301. Section 12(4) empowers the Tribunal to investigate any complaint relating to a controlled tenancy and make orders it deems fit, including injunctive orders. The Court adopted the Court of Appeal position and Karume on following prescribed procedures, held it would be overstepping the Tribunal's mandate, and downed its tools.
Whether the Plaintiff's Notice of Motion met the injunction threshold
The Court made no determination on the merits of the injunction application, having found res judicata and lack of jurisdiction
The Court reasoned that, the preliminary objection having succeeded on res judicata and jurisdiction, it could not proceed to assess the Giella v Cassman Brown criteria or the balance of convenience; the Notice of Motion was accordingly struck out on those preliminary grounds alone.
Whether the Plaintiff's advocate should be referred for investigation for perjury and subornation
The Court declined to make referral orders, reserving its comments and directing the Defendant to the statutory bodies
Although the Court described the matters as extremely serious, it chose, in the interest of the doctrine of exhaustion and professional decorum, to leave the allegations to the Advocates Disciplinary Committee, the Advocates Disciplinary Tribunal or the EACC rather than exercise any special jurisdiction itself at that stage.
Legal principles established
#- A preliminary objection must be raised on a pure point of law; it cannot be raised where facts have to be ascertained or judicial discretion exercised
- A preliminary objection on res judicata may be sustained where the previous suit was between the same parties, litigated under the same title and was heard and finally decided by a competent court
- The Business Premises Rent Tribunal has jurisdiction to entertain disputes over controlled tenancies and to issue injunctive orders under Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act
- Where a statute prescribes a procedure for the redress of a grievance, that procedure should be strictly followed
Court orders
#- 1.The Notice of Preliminary Objection dated 3rd February, 2025 is partially found to have merit, sustained on grounds of res judicata and lack of jurisdiction
- 2.The Notice of Motion application dated 3rd December, 2024 is struck out for breaching the doctrine of res judicata and for lack of jurisdiction
- 3.The suit filed under the Plaint dated 3rd December, 2024 is struck out for lack of merit
- 4.The Court reserves its comments on the alleged perjury and subornation by the Plaintiff's Advocate, advising referral to appropriate statutory bodies including the Advocates Disciplinary Committee, the Advocates Disciplinary Tribunal or the EACC
- 5.Costs of the Notice of Motion application dated 3rd December, 2024 and the Notice of Preliminary Objection dated 3rd February, 2025 awarded to the Defendant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment and Land Court jurisdiction under Article 162 of the Constitution and Section 13 of the ELC Act; application brought under Order 40 Rules 1, 2, 3 and 4 of the Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21
Relief refused
#Interlocutory injunction restraining the Defendant from evicting the Plaintiff from the 2 acres of Kwale/Diani/63 and interfering with his occupation and business
The suit was res judicata following the judgment in Kwale ELC Petition No. 4 of 2021 and the Business Premises Rent Tribunal had jurisdiction over the dispute, so the Court downed its tools
Referral of the Plaintiff's advocate to the DCI and Disciplinary Committee
The Court, in the interest of the exhaustion doctrine, advised resort to statutory bodies and reserved its comments
Costs
The costs of the Notice of Motion application dated 3rd December, 2024 and the Notice of Preliminary Objection dated 3rd February, 2025 are awarded to the Defendant.
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.
That the Notice of Preliminary objection dated 3rd February, 2025 is partially found to have merit whereby it is sustained on grounds of res judicata and lack of jurisdiction.
That the Notice of Motion application dated 3rd December, 2024 be and is hereby struck out for breaching and/or violating "the Doctrine of Res judicata" and for lack of jurisdiction.
That suit as filed under the Plaint dated 3rd December, 2024 be and is hereby struck out for lack of merit.
That the cost of the Notice of Motion application dated 3rd December, 2024 and Notice of Preliminary Objection dated 3rd February, 2025 is awarded to the Defendant.
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
this court, guided by the decisions of the Court of Appeal and the provision of Section 12 (4) of the Act is of the view that the Business Premises Rent Tribunal has jurisdiction to entertain this matter, and issue injunctive orders appropriately.
Issues in the judgment
#Internal contradiction: the Court upheld the preliminary objection and struck out the suit, yet the conclusion paragraph first suggests a need to preserve the suit land, and the Court had already found the objection grounds (other than jurisdiction and res judicata) did not raise triable issues while later sustaining the objection
The judgment misdescribes the preliminary objection: it earlier notes the Court found a res judicata preliminary objection improper in analogous authorities, yet sustains res judicata as a preliminary objection here without reconciling the two positions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fuks v Cotswold Estate Limited (Environment and Land Case E078 of 2024) [2025] KEELC 5840 (KLR)", Case Analysis (2025). ELC Case of 2024 (Kwale), Suit arising from Plaint dated 3rd December 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5840/eng@2025-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.