Owino v Teja & 3 others (Environment and Land Petition E002 of 2026) [2026] KEELC 4165 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a constitutional petition because a debt dispute over land security belongs in other courts, not the ELC.
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 as raised is valid and merited
- 2.Whether the Petition offends the doctrine of constitutional avoidance
- 3.Whether the Environment and Land Court has jurisdiction to entertain the Petition
Key legal issues
#Validity of the preliminary objection as a pure point of law
The objection on jurisdiction was properly placed before the Court because jurisdiction is an issue of law capable of disposing of the suit without a hearing on merit
Applying Mukisa Biscuit principles, the Court noted that a preliminary objection must rest on assumed facts. Although questions of coercion were contested, the jurisdictional question itself was one of law going to the core of the suit and could end the matter without factual investigation on merit.
Doctrine of constitutional avoidance
The predominant issue is the alleged unlawful arrest and settlement of a Kshs 4,000,000/- debt, not a land-use dispute; constitutional framing cannot confer jurisdiction the statute denies
Relying on Murage, Communications Commission and Karume, the Court held that where alternative statutory remedies exist, constitutional proceedings should not be used. The gravamen was enforcement of a commercial arrangement and informal charge, outside Section 13(2)(a) ELC Act, guided by Co-operative Bank v Kangethe Njuguna and Pumwani Riyadha Mosque.
Jurisdiction of the ELC over an informal charge / encumbrance
The ELC lacks jurisdiction to determine the validity of an informal charge; such disputes fall outside the Court, following Co-operative Bank v Kangethe Njuguna
The Court accepted that Section 13(2)(a) confers jurisdiction over title, tenure, boundaries and related disputes, but held that a challenge to an informal charge created as security for a debt is a commercial/security dispute for the High Court or subordinate courts, not a dispute on land use under Article 162(2)(b).
Legal principles established
#- A preliminary objection should raise pure points of law argued on the assumption that all facts pleaded by the other side are correct
- Whether a charge over land is formal or informal, the ELC lacks jurisdiction to determine its validity where the dispute is essentially a commercial/security dispute
- A court without jurisdiction must down its tools
Court orders
#- 1.The 1st Respondent's Preliminary Objection dated 10th April 2026 is merited and sustained
- 2.The petition is hereby struck out
- 3.Each party to bear their own 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 (challenge to jurisdiction); Petition invokes Articles 29, 40, 47 and 49
Relief refused
#Continuation of the Petition before the ELC / reliefs sought therein (declaration that the settlement agreement is void ab initio, expungement of encumbrance, restitution of title)
The Court held the predominant issue is an alleged unlawful arrest and settlement of a debt of Kshs 4,000,000/-, which does not fall within Section 13 of the ELC Act; disputes over an informal charge are not for the ELC
Costs
Each party to bear their 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.
it is clear that a preliminary objection should raise pure points of law and which are argued on the assumption that all facts are correct
whether the charge is formal or informal it is still an encumbrance and the court with jurisdiction to determine its validity or otherwise clearly would not be the ELC
The petition in my view is thus rightfully drafted/presented. However, the same clearly falls out of the jurisdiction of this court and cannot thus be further entertained before the ELC court.
1. The 1st Respondents Preliminary Objection dated 10th April 2026 is merited and sustained 2. The petition is hereby struck out 3. While costs follow the event, they are also discretionary and in view of the circumstances of the case the court orders each party to bear their own costs.
Issues in the judgment
#Internal tension: the Court acknowledges the petition's constitutional complaints (arbitrary arrest and detention) are properly raised and 'rightfully drafted', yet strikes the petition out instead of transferring it to the court with jurisdiction over those violations
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Owino v Teja & 3 others (Environment and Land Petition E002 of 2026) [2026] KEELC 4165 (KLR)", Case Analysis (2026). Siaya ELC Pet E002 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4165/eng@2026-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.