Dr. Lavender Levin v David Oduor Wawiye

0.08 hectares referred to as the "suit land/property", having been lawfully registered as the first proprietor/owner on 16th June 2022 as evidenced by entry number 1 of the parcel file's green card dated 21 st March 2024 3. The Plaintiff states that the defendant agreed to sell the said parcel of land to the plaintiff at a purchase price of Kshs 2,250,000/= and both parties entered into a sale of land agreement dated 11th April 2024. 4. The plaintiff paid the defendant a deposit of Kshs 520,000/= upon signing of the sale of land agreement, with the remaining balance of Kshs 1,730,000/= to be paid within one year. 5. The Plaintiff cleared paying the whole purchase price totaling to Kshs 2,250,000/= to the defendant in August 2025. It further states that since then, the defendant has refused/been negligent to surrender the original title together with other completion documents to enable the plaintiff transfer the suit parcel to her name. 6. The Plaintiff avers that this act of frustration from the defendant amounts to a breach of the sale of land agreement entered into, specifically citing Paragraph 11 of the agreement which states: "The vendor shall upon receiving all the purchase price delivers or cause to be delivered to the purchaser’s advocate’s the following documents within 30 days; — 2

page 2 of 16

a. Duly signed and dated transfer forms in favour of the purchaser b. Two passport size photos of the vendor and KRA PIN certificate c. original title deed for the parcel of land d. All consents necessary for the registration of the transfer of title deed e. A duly completed and signed form of valuation of stamp duty". 7. That as a result of that breach of contract, the plaintiff has suffered loss for failure to occupy the land and collect rents, thereby losing Kshs 20,000/= per month as rent. 8. She further states that as a result of such breach of contract, she rescinded the contract in line with Paragraph 12 of the sale of land agreement and thereafter claims a refund of Kshs 2,250,000/= from the defendant being the purchase price paid for SIAYA/KARAPUL RAMBA/6297 measuring approx. 0.08 hectares together with interest. 9. That despite demands made and intention to sue intimated, the defendants have failed, neglected and/or refused to surrender titles to the suit land for cancellation. 10. The Defendant filed a Statement of Defence dated 22 nd January, 2026 and admits that he is the registered owner of SIAYA/KARAPUL RAMBA/6297, but denies any breach, illegality or wrongdoing. 3

page 3 of 16

11. He further admits that parties executed the agreement dated 11th April 2024 for Kshs. 2,250,000/=, subject to strict compliance with terms, timelines and completion conditions. 12. That he received Kshs. 520,000/= as deposit, but avers the balance was subject to strict completion timelines which the Plaintiff failed or neglected to meet. 13. The Defendant categorically denies that the Plaintiff cleared the whole purchase price, putting the Plaintiff to strict proof regarding full payment, payment dates, payment modes and compliance with completion requirements. 14. That completion was conditional and no duty to surrender the title deed or sign transfer forms arose without full and lawful completion by the Plaintiff. 15. The Defendant states that no valid completion notice was issued under the agreement, conveyancing practice or law and that the Plaintiff was never given possession and the Kshs. 20,000/= monthly claim is speculative, unparticularized and unsupported. 16. The Defendant denies that the agreement was lawfully rescinded, citing lack of valid notice, lack of legal basis and the principle that the Plaintiff cannot benefit from her own breach. 4

page 4 of 16

17. He further denies liability to refund Kshs. 2,250,000/= or any amount, stating the claim is misconceived, premature and contrary to agreement terms. 18. The Defendant avers that the claim is purely contractual and monetary without prayers affecting land title, use or occupation under Article 162(2)(b) and Section 13 of the Environment and Land Court Act. 19. The Defendant avers that the sale agreement is unenforceable due to conflict of interest and impropriety, asserting the drawing/witnessing Advocate is the Plaintiff's sibling a material fact undisclosed to the Defendant, breaching the Advocates Act and LSK Code of Standards. SUBMISSIONS 20. The application was directed to be canvassed by way of written submissions; both parties have since complied and duly lodged their respective submissions. Applicant Submissions 21.In opposing of the Preliminary Objection dated 3 rd February, 2026 the Plaintiff filed written submissions dated 14th April, 2026 drawn by the firm of Messrs. Otieno Okanda & Company Advocates. 22.The sole issue framed for determination by the Plaintiff is whether the Environment and Land Court (ELC) has jurisdiction to hear and determine the suit. 23. In arguing that the Environmental and Land Court possesses requisite jurisdiction under Article 162(2)(b) of 5

page 5 of 16

the Constitution and Section 13 of the Environment and Land Court Act, the Plaintiff asserts that: 1. The claim for a refund of the purchase price is ancillary and consequential to a land sale agreement where land interest would have transferred had the Defendant complied. 2. The claim for a refund, similar to a claim for specific performance, cannot be adjudicated without interrogating the underlying land sale agreement. 3. The breach complained of arises directly from the Defendant's failure to complete a land transaction. 24. The law grants the court power to hear disputes arising out of land sale agreements as well as grant remedies like restitution it could not have envisaged adjudicating only parts of an agreement to the exclusion of refund claims. 25. To support these submissions, the Plaintiff includes a bundle of authorities citing two key Court of Appeal decisions: Co-operative Bank of Kenya Limited v. Patrick Kangethe Njuguna & 5 Others [2017] eKLR, which addresses ELC jurisdiction over contracts incidental to the use of land. Willy Kimutai Kitilit v. Michael Kibet [2018] eKLR, establishes that courts may apply equitable doctrines to award damages or grant specific performance in land sale disputes where appropriate. 26. The Plaintiff concludes by submitting that the Defendant's Notice of Preliminary Objection lacks merit and should be 6

page 6 of 16

dismissed with costs to allow the main suit to proceed for hearing and determination. Defendant’s Submissions 27. The Defendant filed a Notice of Preliminary Objection dated 3rd February, 2026, raising a pure point of law regarding the jurisdiction of the Environment and Land Court (ELC) to entertain the suit. The objection is grounded on the assertion that the court lacks jurisdiction because the Plaintiff’s claim is purely contractual and monetary in nature, arising from an alleged breach or rescission of a land sale agreement. Furthermore, the Plaintiff seeks no substantive relief touching on title, ownership, use, occupation or possession of land that would properly invoke the court's jurisdiction under Section 13 of the Environment and Land Court Act. The Defendant contends that this objection can dispose of the entire suit without the necessity of calling evidence. 28. The Defendant relies on the settled principle established in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, which defines a preliminary objection as a point of law pleaded or arising by clear implication from pleadings that can dispose of a suit if argued preliminarily. Emphasizing that questions of jurisdiction are pure points of law, the Defendant cites Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 to highlight that jurisdiction is fundamental to judicial authority. Without jurisdiction, a 7

page 7 of 16

court cannot take a single step and must immediately "down its tools". 29. Upon examining the Plaint dated 31 st October, 2025, the Defendant notes that the Plaintiff claims to have entered into a sale agreement for Land Parcel No. SIAYA/KARAPUL RAMBA/6297 and paid a purchase price of Kshs. 2,250,000/=. 30. The Plaintiff alleges that the Defendant breached the agreement by failing to surrender original title documents to facilitate transfer. Consequent to this alleged breach, the Plaintiff elected to rescind the contract and seek monetary remedies, specifically a refund of the Kshs. 2,250,000/= purchase price, Kshs. 60,000/= for alleged lost rent, alongside interest and costs. 31. The Defendant contends that by electing rescission and monetary compensation rather than seeking determinations on title, ownership, occupation, use or possession, the Plaintiff has converted the dispute into a purely contractual and monetary claim. 32. The Defendant outlines the constitutional and statutory framework governing the Environment and Land Court under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011, showing that Environment and Land Court jurisdiction is strictly confined to matters concerning the environment, land use, occupation and title to land. 8

page 8 of 16

33. To support the position that purely contractual claims fall outside this domain, the Defendant relies on Butler & 4 others v Redhill Heights Investments Limited & another [2016] KEHC 1313 (KLR), which dictates that courts must evaluate the predominant purpose of a dispute, its nature and the remedies sought. Where the gravamen is contractual rather than proprietary, the matter belongs in ordinary civil courts. 34. Additionally, the Defendant cites Okello & another v Kilonzo & 2 others [2026] KEELC 226 (KLR) to demonstrate that the mere mention of land within a suit does not confer jurisdiction upon the Environment and Land Court if the dispute does not inherently relate to land title, use or occupation. 35. The Defendant concludes by reiterating that the Plaintiff’s suit arises solely from a breached sale agreement, seeks refund and monetary remedies and completely avoids any determination regarding land title, use, occupation or possession. 36. Because the suit was brought before a court lacking proper jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the ELC Act, the court is legally required to down its tools. 37. Consequently, the Defendant prays that the court uphold the Preliminary Objection, strike out the Plaintiff's suit for want of jurisdiction and award the costs of both the suit and the Preliminary Objection to the Defendant. 9

page 9 of 16

ANALYSIS AND DETERMINATION 38. The law regarding preliminary objections is settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, the Court held that a preliminary objection consists of a pure point of law capable of disposing of a suit without the necessity of calling evidence. A challenge to jurisdiction is the classic example of such an objection. 39. This objection concerns jurisdiction and is therefore properly before the Court. 40. The importance of jurisdiction cannot be overstated. In Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1, the court stated that jurisdiction is everything and that without it a court must immediately down its tools. This principle was further reaffirmed by the Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR. 41. The jurisdiction of this Court is derived from Article 162(2) (b) of the Constitution and Section 13 of the Environment and Land Court Act. The Court is mandated to hear disputes relating to the environment and the use, occupation and title to land, including contracts and instruments granting enforceable interests in land. 42. The question therefore is not whether the dispute has some connection with land. The real question is whether, viewed from the pleadings and reliefs sought, the dispute 10

page 10 of 16

falls within the constitutional and statutory mandate of this Court. 43. The starting point in determining the jurisdiction of this court is Article 162(2)(b) of the Constitution of Kenya, 2010, which provides that: “Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to— (b) the environment and the use and occupation of, and title to, land.” 44. Pursuant to the above constitutional provision, Section 13(2) of the Environment and Land Court Act, No. 19 of 2011, provides: "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) acquisition of administration relating land; and (c) to compulsory relating management; to land and (d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests 11

page 11 of 16

in land; and (e) any other dispute relating to environment and land." 45. In the case of Co-operative Bank of Kenya Ltd v Patrick Kang’ethe Njuguna & 5 Others [2017] eKLR , the Court of Appeal stated that: “The jurisdiction of the Environment and Land Court is restricted to the areas outlined under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. The Court cannot assume jurisdiction in matters that are purely contractual or commercial in nature and which do not directly relate to the use, occupation of, or title to land.” “…where the dispute does not relate to the environment and the use, occupation and title to land, the jurisdiction of the Environment and Land Court is not attracted. Contracts, even if they relate to land, will not per se fall under the jurisdiction of the Environment and Land Court unless they are incidental to the use, occupation and title to land.” 46. To affirm the above decision, in Shah & 7 Others v Patel & Another [2025] KEELC 18727 (KLR), the court stated: “In the present case, the pleadings filed reveal that the Plaintiffs’ claim is founded on alleged 12

page 12 of 16

breach of co-investment agreements, and the Defendants’ alleged failure to honour financial arrangements. While there is reference to land, the essence of the dispute lies in contractual obligations and commercial dealings rather than in the determination of rights or interests in land as such. There is no prayer for transfer of title, cancellation of registration, eviction, or any relief that would require this Court to adjudicate on use, occupation, or title to the land.” 47. The Court must interrogate whether the dispute actually requires adjudication upon rights relating to title, use, occupation or proprietary interests in land. Where the claim is predominantly contractual and monetary, jurisdiction lies elsewhere. 48. Turning to the present case, the Plaintiff's own pleadings are instructive. 49. Firstly , the Plaintiff pleads that the Defendant breached the agreement by failing to furnish transfer documents. 50. Secondly and more importantly, the Plaintiff expressly pleads that she rescinded the agreement pursuant to clause 12 of the sale agreement dated 11th April 2024. 51. Thirdly, having rescinded the agreement, the Plaintiff seeks; a declaration of breach, refund of Kshs. 2,250,000/=, Kshs. 60,000/= as rent and damages for breach of contract. 13

page 13 of 16

52. The Plaintiff does not seek; specific performance, transfer of the suit property, an order compelling execution of transfer documents, declaration of ownership, rectification of the register, cancellation of title, vacant possession, occupation rights or any relief affecting proprietary interests in land. 53. By electing rescission, the Plaintiff abandoned any claim to acquisition of the land and reverted to a purely personal claim for repayment of money allegedly paid under the contract. The Court is therefore not being asked to determine who owns the land, who is entitled to possess it or whether any registrable interest should pass. The only controversy is whether the Defendant breached the agreement and whether the Plaintiff is entitled to monetary restitution and damages. 54. I must respectfully differ with the Plaintiff’s argument that every dispute automatically arising falls from within a the land sale agreement jurisdiction of the Environment and Land Court. Such an interpretation would improperly expand the jurisdiction conferred by Article 162(2)(b). 55. In the present matter, there is no longer any active contest over an enforceable interest in land because the Plaintiff's pleaded position is that the agreement was rescinded and the purchase price should be refunded. Her claim is therefore directed not at the land itself but at recovery of money. 14

page 14 of 16

56. The decision in Shah & 7 Others v Patel & Another (supra) is, in my respectful view, more comparable. There, as here, the Court considered the nature of the pleaded dispute and the remedies sought and concluded that where the claim is fundamentally contractual and monetary, jurisdiction is not attracted merely because land forms part of the factual background. 57. Accordingly, applying the predominant purpose test, I find that the gravamen of the Plaintiff's claim is breach of contract and recovery of money allegedly paid pursuant to that contract. The dispute does not require the Court to determine title, tenure, possession, occupation, use of land or any proprietary interest in land. 58. I therefore arrive at the conclusion that this suit, as framed, falls outside the jurisdiction conferred upon the Environment and Land Court by Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. 59. I find merit in the Defendant's Notice of Preliminary Objection dated 3rd February, 2026. The Court makes the following Orders: 1. The Preliminary Objection dated 3rd February 2026 is hereby upheld. 2. This Court lacks jurisdiction to hear and determine the Plaintiff's suit as presently framed. 15

page 15 of 16

3. The Plaint dated 31st October 2025 is hereby struck out for want of jurisdiction. 4. Costs of the Preliminary Objection and of the suit are awarded to the Defendant. It is so ordered Dated at Siaya this 7th Day of October 2026 HON. JUSTICE A. E. DENA JUDGE 7/10/2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of: Mr. Okanda for the Plaintiff Mr. Mwalo for the Defendant Court assistant: Victor Bwire 16

page 16 of 16