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ELCDismissedELC Case of 2023 (Makueni)

Ndetei & another v Musomba & another (Environment and Land Case E005 of 2023) [2025] KEELC 7882 (KLR)

Environment and Land Court
13 November 2025
EOE. Obaga
1,849 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiffs sued seeking registration of the 1st Plaintiff as joint owner of Title No. Makueni/Mukaange Scheme/589 and a permanent injunction against its disposal. The 1st Defendant raised a preliminary objection contending that the Environment and Land Court lacked pecuniary jurisdiction because the value of the subject matter fell below the Kshs.20 million threshold for the High-tier Environment and Land Court, relying on Article 162(2)(b), Section 26 of the Environment and Land Court Act and Section 9 of the Magistrates' Courts Act; she sought striking out of the suit with costs. The Plaintiffs opposed, arguing the objection rested on contested facts (the property's value) and so failed the Mukisa Biscuit test; that the ELC's jurisdiction under Article 162(2)(b) and Section 13 was not ousted by an unproven valuation; that the objection was improperly timed after pretrial compliance; and that the Defendant had admitted the court's jurisdiction in her defence. The court identified a sole issue: whether the preliminary objection was merited. Applying Mukisa Biscuit, Oraro v Mbaja and Jamii Bora, the court held that a preliminary objection must be a pure point of law free of contested facts. The record showed no current value of the property, and the court could not speculate where striking out was sought. The objection was therefore blurred by factual details and failed. The preliminary objection dated 17th June, 2025 was dismissed with costs, and the suit proceeds to hearing on its merits.

Questions the Court framed

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

  1. 1.Whether the 1st Defendant's preliminary objection on pecuniary jurisdiction is merited

Key legal issues

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Whether a preliminary objection founded on the alleged pecuniary value of the suit property is a pure point of law

Holding

It is not; the value of the suit property is a contested factual matter requiring evidence, so the objection fails the Mukisa Biscuit threshold

Reasoning

The court applied Mukisa Biscuit and Oraro v Mbaja: a preliminary objection must be a point of law not blurred with facts needing proof. The record showed no current value of the suit property and the court could not speculate where striking out was sought. Because the value was open to contestation, the objection was fact-dependent and could not stand.

p. 4

Legal principles established

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  • A preliminary objection must rest on a pure point of law; where it is blurred by contested factual details requiring evidence, it is not a valid preliminary objection

Court orders

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  1. 1.The preliminary objection dated 17th June, 2025 is dismissed with costs

The bench

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

EO
majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act

Relief refused

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Striking out of the suit with costs

The objection was founded on disputed facts regarding the value of the suit property and failed the test of a valid preliminary objection

p. 4

Costs

The preliminary objection dated 17th June, 2025 is dismissed with costs to the Plaintiffs.

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.

Accordingly, the preliminary objection herein is misplaced as it is founded on disputed facts regarding the value of the suit property. It does not pass the test of a valid preliminary objection.
p. 4Validity of preliminary objection
In the end, the preliminary objection dated 17th June, 2025 is devoid of merit and must accordingly be dismissed with costs.
p. 4Final orders
A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point, may dispose of the suit.
p. 3Definition of preliminary objection (Mukisa Biscuit, applied)

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, "Ndetei & another v Musomba & another (Environment and Land Case E005 of 2023) [2025] KEELC 7882 (KLR)", Case Analysis (2025). ELC Case of 2023 (Makueni). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7882/eng@2025-11-13

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