Okelleo & another v Kilonzo & 2 others (Environment and Land Case E554 of 2025) [2026] KEELC 226 (KLR)

Prayers in the application 1. Spent 2. That pending the hearing and determination of this application, a temporary injunction be issued restraining the 1st Defendant/Respondent, her agents, servants, or anyone acting under her instructions from: i. allowing or keeping unmuzzled or unrestrained dogs in any common area within Orchid Residency, including hallways, lifts, stairways, or basements; ii. allowing the said dogs to charge, or frighten residents; iii. keeping dogs that cause nuisance within the premises by their constant loud barking. 3. That pending the hearing and determination of this suit, a temporary injunction be issued in the above terms; 4. That the 2nd and 3rd Defendants/Respondents be compelled to enforce the residency and safety provisions, including immediate prohibition of the dogs' presence in common areas and application of fines as provided under the Residency Code of Conduct; 5. That costs of this application be in the suit. Response 3. The 1st defendant responded by filing a notice of preliminary objection dated 1st December 2025 and a replying afidavit dated sworn by 1st defendant dated 2nd December 2025. 4. The preliminary objection was on grounds that the court lacked jurisdiction being that the dispute falls under the purview of the Nairobi City County Dog Control and Welfare Act, 2015, and any civil proceedings therefrom correctly belong before a Court of Civil Jurisdiction with the requisite pecuniary and geographical jurisdiction being the chief magistrate’s court and not the Environment and Land Court. 5. The deponent denied the allegations of the dogs causing nuisance to the applicants indicating that the applicants intentionally provoked the dogs to be able to come up with video they intend to rely on as evidence. 6. She further deponed that the dogs were trained, leashed and controlled when they access the seventhfioor passages and elevators and any other common spaces for their daily health and exercise breaks. 7. It was deponed that the 2nd and 3rd respondents had no legal basis to enforce any laws on the residency as they were not a corporation a Corporation registered under the Sectional Properties Act nullifying the code of conduct relied on by the applicants. Submissions by parties 8. The applicant did not file any submissions on the preliminary objection 1st defendant’s submissions in support of the notice of preliminary objection 9. The 1st respondent reiterated the issue raised in the preliminary objection insisting that the dispute between the Parties was care and control of dogs in Orchid Residency which is not within the jurisdiction of the Environment and Land Court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/226/eng@2026-01-21 2

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10. It was submitted that he dispute was civil in nature and ought to have been filed in a Civil Court with the substantive and pecuniary jurisdiction being the Chief Magistrates Court conferred with both Civil and Environment and Land Court jurisdiction .Counsel relied in the case of Owners of the Motor Vessel “Lillian S$” v Caltex Oil (Kenya) Ltd [1989] eKLR, where the Court of Appeal held that jurisdiction is everything and without it, a court has no power to make one more step. 11. He submitted that where a court has no Jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law must down tools in respect of the matter before it Issues for determination Whether the notice of preliminary objection is merited 12. This being a Preliminary Objection, then it has to fall within the parameters of such objection as was set out in Mukisa Biscuits Ltd Vs West End Distributors Ltd (1969) EA 696 where it was held as follows: “ So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 13. The 1st Defendant’s Objection is based on jurisdiction, so it is a valid point to raise as a Preliminary Objection. 14. Article 162(2)(b) of the Constitution of Kenya 2010 grants this Court original jurisdiction over land disputes, including title and tenure, irrespective of pecuniary value. 162. 15. System of courts 1. The superior courts are the Supreme Court, the Court of Appeal, the High Court and the courts referred to in clause (2). 2. Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to— a. employment and labour relations; and b. the environment and the use and occupation of, and title to, land. 3. Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2). 4. The subordinate courts are the courts established under Article 169, or by Parliament in accordance with that Article. To give efiect to Article 162 (2) (b) and (3) enacted the Environment and Land Court Act, No. 19 of 2011 which under Section 13 of said Act provides for the Jurisdiction the court as: 13. Jurisdiction of the Court 1. The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/226/eng@2026-01-21 3

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2. In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes— a. relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; b. relating to compulsory acquisition of land; c. relating to land administration and management; d. relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and e. any other dispute relating to environment and land. 16. Anchoring on the above position of the law the subject matter of this suit is on the issue of dog control and welfare, while important for public health and local environment I hold the view that it does not fall within the specific constitutional and statutory mandate of the ELC, which primarily deals with proprietary land and environmental issues. 17. The 1st respondent has stated that the dispute falls within the Nairobi City County Dog Control and Welfare Act, 2015 which is the correct position. This Act focuses on dog licensing, control, and welfare within the county, including penalties for ofiences. It is a county-level legislative measure related to animal control, which is a devolved function under the Constitution of Kenya.Section 13 of the said Act reads .13. A person shall not— 18. a. urge any dog to attack, worry or frighten any person or animal or through negligence fail to prevent any dog from attacking, worrying or frightening any person or animal, except where necessary for the defense of such first-mentioned person or his or her property or of any other person; b. take outa dog on a public place unless it is on leash. c. keep any dog which causes damage to public property; d. keep any dog the faeces of which he or she fails to remove regularly and dispose of suitably; e. keep any dog whose barking, yelping, howling or whining constitutes to a public nuisance; f. keep any dog which causes a nuisance to inhabitants of the neighbourhood by— i. having acquired the habit of charging any vehicle, animals, poultry, pigeons or persons outside any premises where it is kept; ii. or by misbehaving in any other manner. Disputes arising from the Act, such as liability for dog bites or enforcement actions by county oficers, typically result in civil proceedings or criminal charges for ofiences. These matters do not inherently relate to the "use and occupation of, and title to, land" or "environmental planning and protection".I would then tend to categorize the dispute herein as one that falls within the ambit of the Act as captured above in Section 13 and as such, the appropriate forum would be the Magistrate's Court, which handles https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/226/eng@2026-01-21 4

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most civil and criminal cases with limited pecuniary jurisdiction, or the High Court if the claim exceeds the Magistrate's Court's limits or involves constitutional matters. 19. Having established that the dispute does not fall within what entails use and occupation of land, this court is therefore not vested with the Jurisdiction to entertain the same. Conclusion: 20. The notice of preliminary objection is merited and the application and entire suit should be dismissed for want of jurisdiction. Each party to bear costs. It is so ordered! DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 21ST DAY OF JANUARY, 2026. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Mr. Kori Quar for the Applicants Ms. Kethi Kilonzo for 1st Defendant No appearance for 2nd and 3rd Defendants Philomena W. ..............Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/226/eng@2026-01-21 5

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