Kwengu & 6 others v Alphana Business Park Limited & 3 others (Environment and Land Case E458 of 2025) [2026] KEELC 2881 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to strike out a land dispute suit, ruling that requiring exhaustion of statutory remedies first is not absolute when a claim covers multiple wrongs.
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 is merited, i.e. whether the Court lacks jurisdiction because the Plaintiffs failed to exhaust statutory dispute resolution mechanisms under the Physical and Land Use Planning Act and the Environmental Management and Coordination Act
Key legal issues
#Whether failure to exhaust statutory remedies under the Physical and Land Use Planning Act and EMCA ousts the ELC's jurisdiction
No - the claim is a composite dispute partly outside the statutory forums' jurisdiction, so the objection fails
The Court reviewed Section 129 of EMCA and Sections 61, 78-81 of the Physical and Land Use Planning Act, finding the Liaison Committee cannot resolve proprietary claims, compensate for property damage, or grant permanent injunctions, and the NET is not a court of general jurisdiction. The Plaintiffs' pleaded claim includes property damage, interference with access, injunctive relief, restoration and compensation, which fall within Article 162(2)(b) and Section 13 of the ELC Act. Separating the complaints would require evidence, so striking out the entire suit would be disproportionate.
Whether the objection qualifies as a true preliminary objection on a pure point of law
Yes, insofar as it raises jurisdiction, which is a pure point of law
Applying Mukisa Biscuit and Oraro v Mbaja, the Court held that a jurisdictional objection based on the exhaustion doctrine may be raised preliminarily where the facts needed for its determination are undisputed and clear from the pleadings.
Legal principles established
#- Jurisdiction is a pure point of law and can be raised as a preliminary objection where the facts necessary for its determination are undisputed
- The doctrine of exhaustion is not absolute; the court must examine the pleadings and reliefs sought to determine whether the dispute falls entirely within a statutory forum
- The existence of some issues subject to statutory dispute resolution does not by itself deprive the Court of jurisdiction over the entire suit; striking out the whole suit may be disproportionate
Court orders
#- 1.The 2nd Defendant's Preliminary Objection dated 3rd October 2025 is dismissed with costs
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
Relief refused
#Striking out the Plaint and the Notice of Motion dated 11th September 2025
The Defendants did not show the suit was entirely premature or barred by exhaustion; part of the composite claim falls within the ELC's jurisdiction
Costs
Preliminary objection dismissed with costs (to the Plaintiffs)
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.
Accordingly, the 2nd Defendant’s Preliminary Objection dated 3rd October 2025 is hereby dismissed with costs.
The doctrine of exhaustion is not absolute. The Court must examine the pleadings and the reliefs sought to determine whether the dispute entirely falls within the statutory forum or raises issues that the statutory body cannot competently decide or remedy.
The existence of some issues that may be subject to statutory dispute resolution does not, on its own, deprive this Court of jurisdiction over the entire suit.
Striking out the entire suit at this preliminary stage would be disproportionate when part of the claim falls within the jurisdiction of this Court and when the adequacy of the alternative remedies is contested.
Issues in the judgment
#Internal inconsistency in dates: submissions are dated up to 18th January 2026 yet the objection was canvassed after the objection date of 3rd October 2025 and the ruling is delivered 8th May 2026; also paragraph 45 quotes a passage referencing '63.' suggesting excerpted text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kwengu & 6 others v Alphana Business Park Limited & 3 others (Environment and Land Case E458 of 2025) [2026] KEELC 2881 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2881/eng@2026-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.