Makokha v Omondi & 2 others (Environment and Land Case E169 of 2025) [2025] KEELC 8121 (KLR)
The bottom line
#A widow's bid to freeze a disputed Nairobi property failed because a High Court preservation order already protects it, and her ownership claim must await full trial.
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 notice of preliminary objection has merit
- 2.Whether temporary orders of injunction ought to issue pending the determination of the suit
Key legal issues
#Whether the preliminary objection against the court's jurisdiction was merited
Only ground 2 raised a pure point of law, and it failed because the plaint sought land-based remedies squarely within this court's jurisdiction
Applying Mukisa Biscuits and Oraro v Mbaja, the court found grounds 1, 3, 4 and 5 were contested and required evidence. Ground 2 (jurisdiction) was a pure point of law, but the plaint sought a permanent injunction, declarations of ownership and rectification of the land register - remedies within the ELC's jurisdiction. The fact that the dispute touches a deceased's estate did not oust the court's jurisdiction.
Whether the plaintiff met the Giella v Cassman Brown conditions for an interlocutory injunction
She failed to establish a prima facie case; the official search showed the 1st defendant as registered owner and the Busia High Court had already preserved the property
The court perused the plaintiff's annexures, including the Busia High Court ruling of 15th October 2024 which found the property was never registered in the deceased's name and preserved it pending further orders. No title showed the deceased as proprietor, and the plaintiff did not prove substantial loss from lost rent. Contested ownership questions were best resolved at trial.
Whether the court should grant injunction orders in light of the subsisting Busia preservation orders
The Busia orders were sufficient; this court declined to interfere until they are set aside
The High Court in Busia had, in its ruling of 15th October 2024, granted prayer (h) preserving LR No. 2/241 until further orders. The court found those orders adequate protection for the property in these proceedings and held that until they are set aside it has no business interfering with them.
Legal principles established
#- For a preliminary objection to succeed it must be a pure point of law, based on facts not disputed, and capable of disposing of the suit without trial
- The Environment and Land Court has jurisdiction to determine disputes seeking relief concerning title to land even where the land formed part of a deceased's estate
- A court will not interfere with subsisting preservation orders issued by a court of concurrent jurisdiction until they are set aside
Court orders
#- 1.The notice of motion dated 4th April, 2025 is dismissed
- 2.The notice of preliminary objection dated 3rd June, 2025 is dismissed
- 3.Each party shall bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) jurisdiction of the Environment and Land Court over land; application under Order 40 Rules 1, 2 and 4 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act
Relief refused
#Temporary injunction restraining the 1st defendant from dealing with LR No. 2/241 Nairobi Gitanga Road pending determination of the suit
The plaintiff did not establish a prima facie case; the High Court in Busia had already issued preservation orders which remain in force
Order restraining the 3rd respondent from processing or registering transactions over the suit property
The High Court's preservation orders were sufficient; this court would not interfere with them
Costs
Each party shall bear its own costs.
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.
for a preliminary objection to succeed, the same must consist of a pure point of law, with the facts not disputed by the opposing party. Also, a preliminary objection should possess the ability to dispose of the issue that is before court without going to trial
It is trite law that jurisdiction is everything, and without it, the court cannot make any one more step to deal with an issue or a matter that it has no jurisdiction over
From the pleadings, and the prayers sought, this court has jurisdiction to hear and determine the suit. For this reason, the notice of preliminary objection fails.
In my view, the plaintifi/applicant has not established a prima facie to enable the court’s intervention at this stage.
Until the orders are set aside, this court has no business interfering with the same.
For this reason, the notice of motion dated 4th April, 2025 and the notice of preliminary objection dated 3rd June, 2025 lack merit and they are both dismissed. Each party shall bear its own costs. Orders accordingly.
Issues in the judgment
#The plaintiff's affidavit is quoted inconsistently on when rent collection by the 2nd defendant ended
The ruling of the High Court in Busia is quoted with an internal inconsistency as to the identity of the purchaser from the deceased
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makokha v Omondi & 2 others (Environment and Land Case E169 of 2025) [2025] KEELC 8121 (KLR)", Case Analysis (2025). Notice of motion dated 4th April, 2025; notice of preliminary objection dated 3rd June, 2025 (suit over LR No. 2/241 Nairobi Gitanga Road). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8121/eng@2025-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.