Gitau v Muiruri & 8 others (Environment and Land Case E197 of 2024) [2026] KEELC 4515 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed it can hear land disputes regardless of value, and blocked nine Ruiru plots from being sold while the case is decided.
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 possesses jurisdiction to hear and determine a dispute concerning title, use, occupation, and alleged fraudulent dealings in respect of land parcel RUIRU KIU BLOCK 2 (GITHUNGURI) 2991 measuring approximately 11.5 acres and its ten resultant subdivisions
- 2.Whether the challenge as raised constitutes a proper Preliminary Objection in law
- 3.Whether the Plaintiff has established a prima facie case with a probability of success so as to warrant the grant of conservatory and/or interlocutory relief in the nature of an order of restriction or inhibition over the suit properties
- 4.Whether the Plaintiff stands to suffer irreparable injury that cannot be adequately compensated by an award of damages should the orders not be granted
- 5.Whether the balance of convenience favours the grant or refusal of the orders sought
- 6.Whether the conduct of the 6th Defendant in secretly filing Miscellaneous Application E017 of 2025, obtaining the vacation of the restriction, and transferring subplot 27971 warrants this Court's intervention to forestall similar disposals
Key legal issues
#Jurisdiction of the ELC vis-à-vis subordinate courts
The ELC is a superior court of co-equal status with the High Court, established under Article 162(2)(b); land disputes are reserved for it and its jurisdiction is not ousted by concurrent subordinate court jurisdiction
Article 165(5) restricts the High Court only; the ELC is not the High Court but a distinct superior court under Article 162(2)(b). Section 13 of the Environment and Land Court Act confers original and unlimited jurisdiction over title, use and occupation of land. Magistrates' Courts' concurrent jurisdiction over lower-value land disputes does not strip the ELC of jurisdiction; the two overlap but the ELC's jurisdiction is never ousted.
Whether the objection was a proper preliminary objection
No - determining the pecuniary value of land is a matter of fact requiring evidence, so the objection fails the Mukisa Biscuit test
A jurisdictional objection is in principle a recognised pure point of law, but this objection was premised partly on the pecuniary value of the claim, which requires valuation evidence and cannot be resolved from the pleadings. Under Mukisa Biscuit, an objection cannot be raised if any fact has to be ascertained; it was therefore misconceived and dismissed.
Prima facie case, irreparable harm and balance of convenience
The Plaintiff established a prima facie case with probability of success, irreparable injury, and the balance of convenience favours preservation of the land
The Plaintiff traced the deceased's root of title via Ballot No. 1947 and Share Certificate No. 1578; Green Cards and photographs corroborated trespass. The 6th Defendant's secret removal of a restriction and immediate transfer of subplot 27971 showed a real risk of piecemeal alienation. The application was unopposed, supporting adverse inferences. Land is unique and damages inadequate; only preservation of the status quo was sought.
Legal principles established
#- The ELC and the High Court are distinct superior courts; Article 165(5) has no bearing on the ELC's jurisdiction, and the concurrent jurisdiction of subordinate courts does not oust the ELC's original jurisdiction in land matters
- A preliminary objection on pecuniary value of land requires factual inquiry and is defective under the Mukisa Biscuit test
- A preliminary objection must be a pure point of law which can be determined without ascertaining facts or exercising discretion
- In interlocutory applications, the court should opt for the lower rather than the higher risk of injustice
Court orders
#- 1.The Preliminary Objection dated 6/08/2025 raised by the 5th Defendant/Respondent is dismissed with costs; this Court is properly and constitutionally seized of jurisdiction under Article 162(2)(b) and Sections 4 and 13 of the Environment and Land Court Act
- 2.An order of restriction/inhibition to be registered against subplots RUIRU KIU BLOCK 2 (GITHUNGURI) 27967, 27968, 27969, 27970, 27972, 27973, 27974, 27975 and 27976 (excluding 27971, subject to further directions)
- 3.All parties, including the Defendants, their representatives, agents, assigns, servants and all persons claiming through or under them, restrained from selling, alienating, transferring, sub-dividing, charging, leasing or in any other manner dealing with the said subplots pending the hearing and final determination of the main suit
- 4.The Land Registrar, Ruiru, directed and notified of the terms of the order and restrained from registering or giving effect to any instrument or dealing in respect of the said subplots pending determination of the main suit
- 5.The Plaintiff to file and serve upon the Land Registrar, Ruiru, within fourteen (14) days, a certified copy of the Ruling with a formal application for registration of the order pursuant to Section 76 of the Land Registration Act
- 6.The Plaintiff is at liberty to apply by way of substantive application to join the alleged transferee of RUIRU KIU BLOCK 2 (GITHUNGURI) 27971 and/or seek appropriate relief in respect of that subplot; jurisdiction reserved
- 7.The main suit to proceed to hearing; parties directed to comply with Pre-trial Conference directions; Pre-trial Conference on 20/07/2026
- 8.Costs of the Application and the Preliminary Objection to be in the cause
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 Sections 4 and 13 of the Environment and Land Court Act, No. 19 of 2011
Relief refused
#Restriction/inhibition over RUIRU KIU BLOCK 2 (GITHUNGURI) 27971
The subplot has already been alienated to a third party following the purported vacation of the restriction; the Plaintiff was instead granted liberty to apply to join the transferee or seek other relief
Costs
Costs of the Application and the Preliminary Objection shall be in the cause; the Preliminary Objection itself dismissed with costs (also in the cause per final orders)
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 Preliminary Objection dated 6/08/2025 raised by the 5th Defendant/Respondent is misconceived, legally untenable, and is hereby dismissed with costs.
The Notice of Motion Application is meritorious and is allowed by issuance of an order of restriction/inhibition for it to be registered against all the following subplots: RUIRU KIU BLOCK 2 (GITHUNGURI) 27967, 27968, 27969, 27970, 27972, 27973, 27974, 27975, and 27976
Costs of the Application and the Preliminary Objection shall be in the cause.
While Magistrates' Courts may have jurisdiction over civil land disputes where the value of the subject matter does not exceed the pecuniary limits set by the Magistrates' Courts Act, that concurrent jurisdiction of the Subordinate Courts in matters of lesser value does not strip the Environment and Land Court of its original and unlimited jurisdiction in land matters.
The rationale of conservatory orders is to preserve the subject matter of the dispute pending final determination, so as to ensure that the dispute does not become a hollow academic exercise at the end of litigation.
Issues in the judgment
#The 5th Defendant's Preliminary Objection is dated inconsistently within the judgment - described as dated 6/08/2025 in the opening and disposal, but 6/05/2025 in the body
Chronological inconsistency: the Plaintiff's Replying Affidavit is stated to have been sworn on 24/03/2026 yet the judgment records the Preliminary Objection dated 6/08/2025 as the only opposition, and submissions dated 26/05/2026; the dates are internally consistent as rendered but the objection date discrepancy above also affects the reply sequence
The Plaintiff's counsel's affidavit is described as a 'Replying Affidavit of their Counsel', which is irregular as counsel ordinarily cannot swear to matters of fact on behalf of a party
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gitau v Muiruri & 8 others (Environment and Land Case E197 of 2024) [2026] KEELC 4515 (KLR)", Case Analysis (2026). ELC NO. 197 OF 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4515/eng@2026-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.