Office of the County Attorney - Kwale County & another (Suing on behalf of the Public) v Gombato (1975) Limited & 2 others (Petition E011 of 2025) [2026] KEELC 1362 (KLR)
The bottom line
#The Environment and Land Court in Kwale struck out a constitutional petition against a bank's land auction, ruling ordinary land disputes belong in civil suits, not constitutional petitions.
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 Preliminary objection raised by the 2nd Respondent dated 24th November 2025 meets the laid-down threshold for such objection based on Law and precedents
- 2.Whether or not the Petition raises constitutional issues
- 3.Who bears the costs of the preliminary objection dated 24th November 2025
Key legal issues
#Whether the preliminary objection met the threshold of a preliminary objection
It was a pure point of law touching on jurisdiction and the doctrine of constitutional avoidance, requiring no evidence
Applying Mukisa Biscuits and Karata Ernest, the court found the objection rested on the pure question of law whether an alternative statutory remedy existed, obviating need for factual inquiry.
Whether the Petition raised constitutional issues
It did not; the dispute over exercise of statutory power of sale was an ordinary civil dispute dressed as a constitutional petition
The Petitioners failed to plead with precision the rights infringed. The exercise of a chargee's statutory power of sale is governed by the Land Act, 2012, and disputes thereon are resolved in an ordinary suit, not a constitutional petition.
Costs of the preliminary objection
Costs follow the event; the 2nd Respondent was awarded costs of the objection and the Petition
Section 27 of the Civil Procedure Act provides costs follow the event unless the court orders otherwise; the successful 2nd Respondent was entitled to compensation for defending the suit.
Legal principles established
#- A preliminary objection must be a pure point of law, not dependent on ascertainment of facts
- Where an adequate alternative remedy exists, a party ought to pursue it rather than constitutionalise an ordinary dispute
- A constitutional petition must set out with reasonable precision the provision infringed and the manner of infringement
Court orders
#- 1.The Preliminary Objection dated 24th November 2025 raised by the 2nd Respondent be and is hereby allowed
- 2.The Petition dated 19th June 2025 be and is hereby struck out for it offends the Doctrine of Constitution Avoidance and does not meet the threshold of a Constitution Petition
- 3.The costs of the Preliminary Objection and the Petition to be awarded to the 2nd Respondent to be borne by the Petitioners
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act, 2011
Relief refused
#All declarations and permanent injunction sought in the Petition
Petition struck out for offending the doctrine of constitutional avoidance
Costs
Costs of the Preliminary Objection and the Petition awarded to the 2nd Respondent, to be borne by the Petitioners
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.
This Court, therefore, finds that it lacks jurisdiction to determine the Petition on the principle of constitutional avoidance.
That the Preliminary Objection dated 24th November 2025 raised by the 2nd Respondent be and is hereby allowed.
That the Petition dated 19th June 2025 be and is hereby struck out for it ofiends the Doctrine of Constitution Avoidance and does not meet the threshold of a Constitution Petition.
That the costs of the Preliminary Objection and the Petition to be awarded to the 2nd Respondent to be borne by the Petitioners herein.
the Petitioners have not listed under any of the 13 paragraphs how their rights have been infringed, violated, denied or threatened upon by the Respondents
Issues in the judgment
#Karata Ernest case cited with inconsistent year detail (Revision No 10 of 2020 but judgment date 2010)
Petition described as having both 12 and 13 paragraphs in the supporting affidavit
Case name rendered variously as 'Recreation Commission' and 'Sports and Recreation Commission'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Office of the County Attorney - Kwale County & another (Suing on behalf of the Public) v Gombato (1975) Limited & 2 others (Petition E011 of 2025) [2026] KEELC 1362 (KLR)", Case Analysis (2026). Constitution Petition dated 19th June 2025 (Kwale ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1362/eng@2026-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.