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ELCStruck OutNot stated in the judgment

Gathegi & another v Muthoni (Environment and Land Case E021 of 2024) [2025] KEELC 6308 (KLR)

Environment and Land Court
23 September 2025
3,894 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Defendant raised a preliminary objection dated 27th May 2025 seeking to strike out the Plaintiffs' suit founded on a Plaint dated 20th February 2024. The Defendant argued, through Messrs. Kakai Mugalo Advocates LLP, that the court lacked jurisdiction: the suit was essentially for recovery of monies due under a land sale agreement, a matter within the High Court's civil jurisdiction under Article 165(3) of the Constitution, and within the pecuniary jurisdiction of the Magistrates' Court. The Plaintiffs, through Messrs. Barayan & Associates, countered that the Environment and Land Court enjoys original jurisdiction under Article 162(2)(b) and Section 13 of the Environment and Land Court Act, and that the objection turned on disputed facts. The court framed three issues: whether the objection met the legal threshold, whether the Defendant was entitled to the relief sought, and costs. Reviewing the classic authorities on preliminary objections, it found that a jurisdictional challenge is a pure point of law properly raised. Examining the plaint, the court applied the predominant purpose test and held that the suit was predominantly for recovery of monies and damages for breach of contract, not a dispute over title, use or occupation of the suit property. Relying on Co-operative Bank of Kenya v Patrick Kangethe Njuguna, it held such accounting claims belong to the High Court. The objection was allowed, the suit struck out, and costs of both the objection and the suit awarded 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 objection raised by the Defendant through the Notice of Preliminary Objection dated 27th May 2025 meets the threshold founded in Law and precedents
  2. 2.Whether the Defendant is entitled to the relief sought from the filed Notice of Preliminary Objection
  3. 3.Who will bear the Costs of the Objection

Key legal issues

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01

Whether the preliminary objection met the legal threshold of a pure point of law

Holding

Yes - the objection questioned the court's jurisdiction, which is an issue of law and therefore properly raised as a preliminary objection.

Reasoning

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.

p. 5
02

Whether the Environment and Land Court has jurisdiction over a suit predominantly for recovery of monies under a land sale agreement

Holding

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).

Reasoning

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.

p. 7
03

Who should bear the costs of the objection and the suit

Holding

The Defendant, having succeeded, is entitled to the costs of both the preliminary objection and the suit.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The Notice of Preliminary Objection dated 23rd May, 2025 be and is hereby found to be merited
  2. 2.The suit is struck out
  3. 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

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

majority

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

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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

p. 7

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

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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.

That the Notice of Preliminary Objection dated 23rd May, 2025 be and is hereby found to be merited.
p. 8Disposition - objection allowed
That it follows therefore that the suit is struck out.
p. 8Final orders - suit 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.
p. 8Final orders - costs
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.
p. 7Predominant purpose test
Jurisdiction is everything. Without it, a court has no powers to make one more step.
p. 5Doctrine of jurisdiction

Issues in the judgment

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minor

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

minor

The Environment and Land Court Act is inconsistently cited as 'No. 19 of 2010' and 'No. 19 of 2011' in the same passage

minor

Paragraph numbering restarts mid-judgment (a paragraph numbered '16' reappears after paragraph 23)

minor

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

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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, "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.