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ELCDismissedNot stated in the judgment (Plaint dated 3rd June 2025; Notice of Motion dated 3rd June 2025; Notice of Preliminary Objection dated 10th September 2025)

Nyabwendo & another v County Government of Kisii & another (Environment and Land Case E017 of 2025) [2026] KEELC 851 (KLR)

Environment and Land Court
18 February 2026
2,009 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner seeking to stop a county demolition lost because he couldn't produce a title deed — allotment letters alone won't protect your property.

What this practically means

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Executive summary

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The Plaintiffs sued over the alleged demolition of part of a building under construction on parcel Keroka Township/39B on 23rd May 2025 by employees of the First Defendant, claiming trespass, a declaration that the demolition was illegal, and damages. Together with the Plaint they filed a Notice of Motion dated 3rd June 2025 seeking an interlocutory injunction restraining further trespass and demolition. The First Defendant filed a Notice of Preliminary Objection dated 10th September 2025 contending that the court lacked jurisdiction to determine constitutional violations (which vested in the High Court under Article 165(3)(b)), that no title deed was produced, that the Plaintiffs encroached on a public road reserve, and that the suit offended Section 13A of the Government Proceedings Act. The court first found that objections requiring evidence (ownership, road reserve encroachment, and notice under Section 13A) were not valid preliminary objections and dismissed them. However, the jurisdictional contention was a pure point of law. Relying on Attorney General v Okiya Omtata Okoiti, the court held that the ELC has jurisdiction to redress constitutional violations in land matters, and dismissed the objection. On the injunction, applying Giella v Cassman Brown and Nguruman, the court found the Plaintiffs had not established a prima facie case with a probability of success: no title deed, allotment minutes, or evidence of payment of rates and rent was produced, and an allotment is not title to land. Both the Notice of Motion and the Preliminary Objection were dismissed with each party bearing their own costs.

Questions the Court framed

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

  1. 1.Whether the Notice of Preliminary Objection dated 10th September 2025 is merited
  2. 2.Whether an interlocutory injunction should issue restraining the Defendants from further trespassing and demolition of Keroka Township/39B

Key legal issues

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01

Whether the ELC lacks jurisdiction to determine constitutional violations

Holding

The objection failed; the ELC has jurisdiction to redress constitutional violations arising within its subject-matter jurisdiction, and the claim of trespass and demolition is squarely a land matter

Reasoning

Relying on the Court of Appeal in Attorney General & others v Okiya Omtata Okoiti, the court held that while the High Court has unlimited original jurisdiction under Article 165(3)(b), the ELC and ELRC may interpret and apply the Constitution on issues arising in the context of environment and land or employment disputes. Since the plaintiffs' claim is built on trespass and demolition of a building on land, the matter falls squarely within the ELC's jurisdiction.

p. 3
02

Whether the objections on ownership, road reserve encroachment and Section 13A Government Proceedings Act notice are valid preliminary objections

Holding

They are not; they require evidence and were dismissed

Reasoning

The court reiterated that a preliminary objection must be a pure point of law argued on facts as pleaded (Mukisa Biscuit). Determining whether the plaintiffs proved ownership, whether they encroached on a road reserve, and whether notice was issued under Section 13A would all require the court to receive and consider evidence, so those objections are matters for trial rather than valid preliminary objections.

p. 3
03

Whether the plaintiffs established a prima facie case with a probability of success for an interlocutory injunction

Holding

No; they produced no title deed, letter of allotment, minutes of allotment, or evidence of payment of rates and rent, and an allotment is not title to land

Reasoning

Applying Giella v Cassman Brown and Nguruman, the first limb requires a prima facie case with a probability of success. The First Defendant correctly pointed out that no title deed was annexed. The 'Kadi Ya Ploti' was unsupported by allotment minutes, and there was no evidence of payment of charges or compliance with allotment terms. Further, an allotment is not title to land. The plaintiffs therefore failed at the first hurdle and the court did not consider the other limbs.

p. 4

Legal principles established

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  • Specialised courts (ELC and ELRC) have jurisdiction to interpret and apply the Constitution and to redress constitutional violations arising within their subject-matter jurisdiction, though not with the original unlimited jurisdiction of the High Court.
  • An allotment is not title to land; ownership claims require proof such as a title deed, valid allotment minutes and evidence of payment of charges and compliance with allotment terms.
  • A valid preliminary objection must be on a pure point of law; objections requiring the reception of evidence are not valid preliminary objections.

Court orders

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  1. 1.Notice of Preliminary Objection dated 10th September 2025 dismissed
  2. 2.Notice of Motion dated 3rd June 2025 dismissed
  3. 3.Each party to bear their own costs

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 establishing the Environment and Land Court (implied by the subject matter); the court also discussed Article 165(3)(b) in relation to the High Court's jurisdiction over constitutional violations

Relief refused

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Temporary/interim injunction restraining the Defendants from further trespassing and demolition of Keroka Township/39B pending hearing and determination of the suit

The Plaintiffs failed to establish a prima facie case with a probability of success as they produced no title deed or valid allotment documents, so the other Giella limbs did not fall for consideration

p. 4

Costs

Each party shall bear their own costs.

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.

I find no merit in both Notice of Motion dated 3rd June 2025 and Notice of Preliminary Objection dated 10th September 2025. I dismiss both. In view of the outcome, each party shall bear own costs.
p. 5Final orders - dismissal of application and preliminary objection; costs
The Environment and Land Court and the Employment and Labour Relations Court too have jurisdiction to redress violations of constitutional rights in matters falling under their jurisdiction.
p. 3Jurisdiction of specialised courts over constitutional claims
Further, an allotment us not title to land.
p. 4Allotment does not confer title to land
The existence of a prima facie case does not permit "leap-frogging" by the applicant to injunction directly without crossing the other hurdles in between.
p. 4Sequential application of the Giella/Nguruman injunction tests

Issues in the judgment

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material

The case title and case number of the suit are not stated anywhere in the judgment; the parties are not named

minor

The judgment contains an apparent error in the statement of the law on preliminary objections - it states the objection must be argued on the facts of the party against whom it is raised, which appears garbled

minor

The First Defendant's submissions are described as two sets both dated 29th October 2025

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, "Nyabwendo & another v County Government of Kisii & another (Environment and Land Case E017 of 2025) [2026] KEELC 851 (KLR)", Case Analysis (2026). Not stated in the judgment (Plaint dated 3rd June 2025; Notice of Motion dated 3rd June 2025; Notice of Preliminary Objection dated 10th September 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/851/eng@2026-02-18

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