Gitu v Kamanda & 3 others; Attorney General & another (Interested Parties) (Environment and Land Case 1484 of 2016) [2025] KEELC 7897 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled it can hear land ownership and trespass claims against CDF officials, dismissing their attempt to block the case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to handle the dispute herein and if the said Preliminary Objection is merited
Key legal issues
#Whether the ELC has jurisdiction over a land trespass and ownership dispute notwithstanding Sections 56(1), (3) and (5) of the NG-CDF Act
The objection is unmerited; the ELC is clothed with jurisdiction because the dispute concerns ownership of land and trespass, matters outside the Board's statutory functions, and the personal-liability protection covers only lawful acts.
The court examined Section 13 of the ELC Act and Section 16 of the NG-CDF Act, noting the Board's functions do not include resolving ownership and title to land. The fulcrum of the suit is ownership and trespass, an unlawful act, so the Section 56(5) protection for lawful official actions does not apply and the Board-first mechanism under Section 56(3) is not attracted.
Whether the objection is a true preliminary objection on a point of law
Applying Oraro v Mbaja, an assertion bearing factual aspects calling for proof is not a true preliminary objection; the 1st Defendant's claim that he left the CDF committee lacked evidential support.
The court adopted Oraro v Mbaja's formulation and observed that apart from the preliminary objection, the 1st Defendant provided no evidence that he was no longer part of the Starehe CDF Committee, rendering the objection blurred with factual detail.
Legal principles established
#- A preliminary objection must be a pure point of law and cannot rest on contested factual details.
- The NG-CDF Board's dispute-resolution mechanism under Section 56(3) does not oust the ELC's jurisdiction over disputes concerning ownership and title to land.
- A person managing the Fund may be held personally liable for unlawful acts such as trespass to land committed in his official capacity.
Court orders
#- 1.The Notice of Preliminary Objection dated 5th January 2024 is dismissed
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 and Section 13 of the Environment and Land Court Act
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.
In the foregoing, I find the instant Notice of Preliminary Objection unmerited and will dismiss it.
In my view, it is the Environment and Land Court clothed with jurisdiction to handle the dispute herein.
since trespass to land is an unlawful act, the 1st Defendant can be held personally liable for unlawful actions taken in his oficial capacity under Section 53 (3) of the National Development Fund Act, No.30 of 2015
the said board does not have jurisdiction to handle the dispute revolving around ownership and title to land which is not indicated as an issue the board can deal with in its functions.
Issues in the judgment
#Internal inconsistency in the statutory provision relied on for personal liability: the court cites Section 53(3) of the 'National Development Fund Act, No.30 of 2015', while the Act elsewhere identified is the National Government Constituencies Development Fund Act, No. 30 of 2015, whose personal-liability provision is Section 56(5).
Oraro v Mbaja is cited with inconsistent years/citations - [2007] KLR 141 in the plaintiff's submissions and [2005] eKLR in the court's analysis.
The quotation from Albert Chaurembo Mumba appears incompletely integrated; the blockquote includes the numbering '(118)' within the quoted text.
Citation of 'Njenga & another v National Government Constituencies Development Fund Board & others [2015)' is malformed (unclosed bracket) and appears identical in party name to the present case while dated 2015, raising doubt about the authority actually cited.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitu v Kamanda & 3 others; Attorney General & another (Interested Parties) (Environment and Land Case 1484 of 2016) [2025] KEELC 7897 (KLR)", Case Analysis (2025). Environment and Land Petition E012 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7897/eng@2025-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.