Gathegi & another v Muthoni (Environment and Land Case E021 of 2024) [2025] KEELC 6308 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a money-recovery lawsuit, ruling that such claims belong in the High Court, not the land court.
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 objection raised by the Defendant through the Notice of Preliminary Objection dated 27th May 2025 meets the threshold founded in Law and precedents
- 2.Whether the Defendant is entitled to the relief sought from the filed Notice of Preliminary Objection
- 3.Who will bear the Costs of the Objection
Key legal issues
#Whether the preliminary objection met the legal threshold of a pure point of law
Yes - the objection questioned the court's jurisdiction, which is an issue of law and therefore properly raised as a preliminary objection.
The court reviewed the classic definitions from Mukisa Biscuit, Nitin Properties, the Tanzanian Court of Appeal in Karata Ernest, and the Supreme Court in Aviation & Allied Workers Union. It concluded that jurisdictional objections are pure points of law, citing the principle that jurisdiction is the backdrop against which a court is mandated to determine any matter.
Whether the Environment and Land Court has jurisdiction over a suit predominantly for recovery of monies under a land sale agreement
No - applying the predominant purpose test, the suit is essentially for recovery of monies and damages for breach of contract, within the High Court's unlimited civil jurisdiction under Article 165(3).
Examining the plaint, the court found the prayers sought USD 45,310.38, loss of bargain damages and transaction costs. Relying on Co-operative Bank of Kenya v Patrick Kangethe Njuguna, it held that the ELC's exclusive jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act does not extend to accounting questions; the suit did not concern ownership of the suit property.
Who should bear the costs of the objection and the suit
The Defendant, having succeeded, is entitled to the costs of both the preliminary objection and the suit.
Relying on Section 27(1) of the Civil Procedure Act and the cases of Jasbir Rai Singh and Cecilia Karuru Ngayu, the court held that costs follow the event and serve to compensate the successful party rather than penalize the losing party.
Legal principles established
#- A preliminary objection must be raised on a pure point of law, on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained.
- Where the predominant purpose of a suit is recovery of monies rather than a dispute over title, use or occupation of land, the suit falls within the High Court's jurisdiction under Article 165(3) and not the Environment and Land Court.
- Jurisdiction is everything; a court without jurisdiction has no power to make one more step and must down its tools.
Court orders
#- 1.The Notice of Preliminary Objection dated 23rd May, 2025 be and is hereby found to be merited
- 2.The suit is struck out
- 3.The costs of the Preliminary Objection together with the costs of the suit be borne by the 1st and 2nd Plaintiffs/Respondents and are awarded to the Defendant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya read with Section 13 of the Environment and Land Court Act, No. 19 of 2011
Relief refused
#Plaintiffs' suit for recovery of monies, loss of bargain and transaction costs
The suit predominantly seeks recovery of monies due under a sale agreement, a matter within the High Court's civil jurisdiction under Article 165(3), not the Environment and Land Court's jurisdiction
Costs
The costs of the Preliminary Objection together with the costs of the suit to be borne by the 1st and 2nd Plaintiffs/Respondents be and are hereby awarded to the Defendant. It is ordered accordingly.
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 23rd May, 2025 be and is hereby found to be merited.
That it follows therefore that the suit is struck out.
That the costs of the Preliminary objection together with the costs to the suit to be borne by the 1st and 2nd Plaintifis/Respondents be and are hereby awarded to the Defendant.
the main object and purpose of the suit is predominantly to recovery the monies due to the Plaintifi. Certainly, it is not on ownership of al that suit property Kwale/Shimoni Adj/ 735.
Jurisdiction is everything. Without it, a court has no powers to make one more step.
Issues in the judgment
#Inconsistent dates given for the Notice of Preliminary Objection - described variously as dated 27th May 2025, 7th April 2025 and 23rd May 2025, including in the final orders
The Environment and Land Court Act is inconsistently cited as 'No. 19 of 2010' and 'No. 19 of 2011' in the same passage
Paragraph numbering restarts mid-judgment (a paragraph numbered '16' reappears after paragraph 23)
The court noted the Defendant's pecuniary-jurisdiction argument based on the value of a property described as Kwale/Ukunda/160, while the suit property in the analysis is Kwale/Shimoni ADJ/735, a discrepancy not explained in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gathegi & another v Muthoni (Environment and Land Case E021 of 2024) [2025] KEELC 6308 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6308/eng@2025-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.