Mhasibu Bustani Management Company v Mhasibu Housing Company Limited (Environment and Land Case E058 of 2025) [2026] KEELC 192 (KLR)
The bottom line
#Kenya's Environment and Land Court in Thika ruled it can hear a homeowners' dispute over missing infrastructure because the deal was mainly about land.
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 entertain this suit
- 2.Whether the Plaintiff has locus standi to institute, maintain and prosecute this suit
- 3.Who shall bear the costs
Key legal issues
#Whether the ELC has jurisdiction over a suit seeking specific performance of infrastructural obligations arising from a land sale transaction
The Court held it has jurisdiction. Applying the predominant purpose test, the overarching transaction was predominantly a sale of land, and the infrastructural promises were incidental to and inseparable from the sale of the serviced plots; further, Section 13(2)(d) of the ELC Act covers contracts granting enforceable interests in land.
The Court applied Article 162(2)(b) of the Constitution and Section 13 of the ELC Act, adopting the predominant purpose test from Suzanne Achieng Butler v Redhill Heights. The pleadings showed the plots were advertised as serviced plots in a gated community with the purchase price inclusive of infrastructure. The reliefs sought centred on ownership, use and occupation of land and could not be severed between the High Court and the ELC. A contract for infrastructure development on land is intrinsically linked to the land's use and creates an enforceable interest in it.
Whether the Plaintiff, a management company not party to the sale agreement, has locus standi
The Court declined to uphold the objection on locus standi at the preliminary stage, holding that the question of whether the Plaintiff is who it claims to be can only be determined at the hearing with evidence, and that the Plaintiff acts in the interests of its members through a representative suit.
The Defendant argued the Plaintiff lacks privity of contract and is not the corporation contemplated under Section 17 of the Sectional Properties Act. The Plaintiff relied on Section 18(1) of the Sectional Properties Act conferring capacity to sue on the corporation, and on a meeting of 4/05/2023 showing the Defendant recognised its representative role, raising estoppel. The Court found the onus of establishing locus standi rests on the party instituting proceedings, but that contested questions of identity and standing require evidence at trial rather than determination in limine.
Whether the Preliminary Objection was a proper preliminary objection on a pure point of law
The Court applied the Mukisa Biscuits and Oraro v Mbaja tests; to the extent the objection on locus standi bore contested factual aspects, it was not a true preliminary objection.
The Court recited the classic formulation in Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd and Oraro v Mbaja, and Avtar Singh Bhamra v Oriental Commercial Bank, that a preliminary objection must stem from the pleadings and be based on pure points of law with no facts to be ascertained. The Plaintiff had argued there were contested facts on locus standi. The Court nonetheless proceeded to determine the jurisdictional limb of the objection on the law and the pleadings, and dismissed the objection in its entirety.
Legal principles established
#- In a transaction involving both sale of land and other services, jurisdiction lies at the ELC if the transaction is predominantly for land
- A contract for infrastructure development on land is inherently related to the use and occupation of that land and falls within the ELC's jurisdiction
- A preliminary objection must be on a pure point of law and must not be blurred with factual details liable to be contested
- Locus standi is divorced from the substance of a party's case and must be decided at the outset before the merits are considered
Court orders
#- 1.The Notice of Preliminary Objection dated 26/05/2025 is dismissed with costs to the Plaintiff
- 2.Parties to proceed to take directions on the expeditious disposal of the suit
- 3.Parties to go for Pre-trial Conference before the Deputy Registrar on 19/03/2026
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, 2010 and Section 13 of the Environment and Land Court Act, Cap 12A
Relief refused
#Upholding of the Preliminary Objection and striking out of the suit with costs for want of jurisdiction as sought by the Defendant
The Court found it had jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act applying the predominant purpose test, and that locus standi could not be conclusively determined on a preliminary objection without evidence
Costs
Preliminary Objection dismissed with costs to the Plaintiff
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.
The upshot of all this is that the Notice of Preliminary Objection dated 26/05/2025 fails; the same is dismissed with costs to the Plaintifi. Parties shall proceed to take directions on the expeditious disposal of the suit.
Ultimately, it is clear that the dispute revolves around land. Therefore, in line with the predominant purpose test, this Court is clothed with the requisite jurisdiction to hear and determine it.
a contract for infrastructure development on land is inherently related to the use and occupation of that land and creates an enforceable interest in it.
The Plaintifi is thus acting in the public interest of its members. Therefore, the question of locus standi is determined well through the representative suit.
A ‘Preliminary Objection’, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested
Issues in the judgment
#The judgment inconsistently describes the nature of the plaintiff's standing: paragraph 5 states it was incorporated 'on behalf of its members who purchased plots from the Defendant' to manage LR 11287/4 and LR11287/7, while paragraph 45 refers to 'the Plaintifis claim to be a Chairman and the Secretary of the Plaintifi's Company', conflating the company with its officers
The pre-trial conference date appears internally inconsistent with the delivery date of 26 January 2026 being a date in the past relative to '19/03 2026', and the date is given without a year separator ('19/03 2026')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mhasibu Bustani Management Company v Mhasibu Housing Company Limited (Environment and Land Case E058 of 2025) [2026] KEELC 192 (KLR)", Case Analysis (2026). Not stated in the judgment (Plaint dated 19/03/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/192/eng@2026-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.