Mhasibu Bustani Management Company v Mhasibu Housing Company Limited (Environment and Land Case E058 of 2025) [2026] KEELC 192 (KLR) (26 January 2026) (Ruling)
Neutral citation:
[2026] KEELC 192 (KLR)
Republic of Kenya
Environment and Land Case E058 of 2025
JA Mogeni & AM Cockar, JJ
January 26, 2026
Between
Mhasibu Bustani Management Company
Plaintiff
and
Mhasibu Housing Company Limited
Defendant
Ruling
1.The Plaintiff, Mhasibu Bustani Management Company instituted this suit vide a Plaint dated 19/03/2025 against the Defendant Mhasibu Housing Company Limited, seeking a declaratory order against the Defendant for allegedly being in fundamental breach of its contractual obligation with respect to infrastructural developments over property known as Theta Theta Block 4 & LR 11285/7 in Ruiru, an order of specific performance and general and aggravated damages.
2.The Defendant in opposition to the suit filed a Preliminary Objection dated 26/05/2025 challenging the competency of the suit. The Preliminary Objection stated as follows:
3.The Court directed that the Preliminary Objection be heard and the parties filed their written submissions. The Plaintiff/Respondent in opposition to the Preliminary Objection filed written submissions dated 6/10/2025 and opposed the objection. The Defendant/Applicant filed their written submissions dated 6/11/2025 after the Plaintiff/Respondent’s submissions.
4.In opposition the Defendant/Respondent briefly in reference to the history of the case stated that on behalf of its members who purchased plots from the Defendant on 17th October and 27th November 2014 it was incorporated as a Limited Liability Company to manage and maintain the suit property LR 11287/4 and LR11287/7.
5.That it filed the instant suit seeking specific performance due to the Defendant’s failure to fulfill contractual obligations for infrastructural developments as was promised in the Sale Agreement for the suit property which include cabro-paved roads, drainage systems and a second gate.
6.It also refers to the fact that the Defendant’s Preliminary Objection challenges the Court’s jurisdiction, the Plaintiff’s locus standi and the competence of the suit. It is the Plaintiff’s submission that the objection has no merit and is unsupported by law.
7.In its submissions the Plaintiff identified four issues and submitted extensively on the same being:a.Whether this Honorable Court has jurisdiction to hear and determine the suit.b.Whether the Plaintiff has locus standi to institute and prosecute this suit.c.Whether the Plaintiff’s suit is misconceived, incompetent or fatally defective; andd.Who should bear the costs of the Preliminary Objection?
8.On the issue of jurisdiction, the Plaintiff submits that this Court has jurisdiction as is bestowed upon it by Article 162(2) (b) of the Constitution and Section 13 (2) of the Environment and Land Court that the Plaintiff’s suit as pleaded in the Plaint arises from a land sale transaction involving the suit property where the Defendant failed to fulfill contractual obligations regarding infrastructural developments as stated at paragraph 5.
9.It is the Plaintiff’s submission that its claim arises from a land sale transaction involving the suit property since the Defendant has failed to fulfill contractual obligations regarding infrastructural developments which fall under fraudulent misrepresentation and loss occasioned by the Defendant’s actions or inactions in relation to the land, as under Section 13(2) (d) as well as disputes relating to land under Section 13(2) (a).
10.The Plaintiff relied on the cases of Rwimbo vs Gachagua (Civil Appeal 7 of 2018) [2025]KEHC 5130(KLR), Suzanne Achieng Butler & 4 Others vs Redhill Heights Investment Limited & Another [2016] eKLR, Nguthi vs Mwangi [2025] KEHC 2502 (KLR), Philip Jalang’o vs Ryan Properties Limited [2020] KEELC 96 (KLR) and Storelli vs Pelo & Another [2025] KEELC 1347 (KLR) which all refer to the predominant purpose test in any case. According to the Plaintiff, applying the predominant purpose test to the instant case shows that the overarching transaction was predominantly for the sale of land since the promises regarding infrastructure were not independent construction contracts but were incidental and essential conditions of the land sale agreements, meant to enhance the value, use, and enjoyment of the plots being sold.
11.It is the Defendant’s submission that a consistent line of judicial precedent as cited above solidly affirms this Court’s jurisdiction over disputes of this nature as stated in the precedent cases quoted above. That the Courts have utilized the predominant purpose test and stated again and again that the jurisdiction lies at the Environment and Land Court (ELC) where the transaction is predominantly for land.
12.The Plaintiff found fault with the authorities cited by the Defendant and stated that none of the authorities cited by the Defendant from the Court of Appeal specifically ousted the jurisdiction of the ELC to deal with contracts relating to the purchase of land or choses in action relating to land. Thus, it is their submission that the Defendant’s assertion that the cause of action is purely contractual is misconceived since it overlooks the inseparable nexus between contractual obligations and the development, use and occupation of the suit property as demonstrated by the authorities cited above.
13.It is therefore clear according to the Plaintiff that the dispute falls squarely within the jurisdiction of the Land and Environment Court.
14.The second issue was the one on locus standi where the Plaintiff claims that contra to the argument by the Defendant that the Plaintiff lacks locus standi, he submits that this is not a pure point of law. That it ignores the law governing Common Properties under the Sectional Properties Act.
15.According to the Plaintiff, they are the duly incorporated management company for Mhasibu Bustani and therefore the failure of the Defendant to complete the contracted work for use and occupation of the suit properties, prejudices the interest of the proprietors that the Plaintiff represents.
16.That the suit property, shared common areas and infrastructure falls within the ambit of the Sectional Properties Act, No. 21 of 2020 which confers legal standing upon management companies like the Plaintiff. That Section 18(1) addresses this issue of locus by providing as follows:
17.The Plaintiff submits that infrastructural obligations at the heart of the suit properties are the essence of the “common property” the Plaintiff is required to control and manage and therefore they have locus to institute this suit to fulfill their statutory duties to protect the interests of the proprietors that they represent.
18.As a matter of fact, the Plaintiff submits that the Defendant engaged with the Plaintiff in a meeting on 4/05/2023 to resolve the infrastructural issues demonstrating the Defendant’s recognition of the Plaintiff’s legitimate representative role to negotiate on behalf of the proprietors. Therefore, the Defendant is estopped from asserting that the Plaintiff is a “stranger to the matter at hand”. That in fact the law does not permit a party to a matter to approbate and reprobate.
19.It is the Plaintiff’s submission that the matter of locus standi cannot be determined in limine since there are contested facts.
20.The Plaintiffs referred to the cases of Hassan v Kitonga & 2 Others (Environment & Land Case No. 218 of 2023), Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696. The Plaintiff reiterated that a Preliminary Objection must be on a pure point of law which the instant Preliminary Objection is not since there are contested facts.
21.From the foregoing, the Plaintiff submitted on the third issue that the Plaintiff’s suit is not misconceived and incompetent as averred by the Defendant. That the Plaint has set out a cause of action and it is therefore a competent suit making competent claims under the law. That any disputes regarding the factual basis of the Plaintiff’s claim require evidence and a full hearing not a Preliminary Objection. The Plaintiff has urged the Court to dismiss the objection with costs to the Plaintiff.
22.On their part the Defendants filed their written submissions dated 6/11/2025 and submitted that according to them as was espoused in the Supreme Court’s rendition in Aviation & Allied Workers Union Kenya vs Kenya Airways Limited & 3 Others [2015]eKLR the Preliminary Objection filed has raised a pure point of law just like it was stated in Mukisa Biscuit (supra)
23.According to the Defendant, the facts pleaded by the parties are correct and are not in contest and therefore the Court should be able to draw inferences of pure points of law. That the legal framework espoused in Article 162 (2) of the Constitution read with Section 13 of the ELC Act clearly indicated the jurisdiction of the ELC Court.
24.The Defendant submits that a careful scrutiny of the pleadings reveal that the Plaintiff does not seek enforcement of any proprietary rights, nor contest the title, use or occupation of land but it seeks contractual performance with respect to alleged infrastructural developments. Thus, the purpose of the suit is to obtain infrastructural development which is not connected to use and occupation of land.
25.The Defendant also submitted that although Section 13 of the ELC Act does not have a specific definition for the meaning of what relates to the use of land, the Courts have in their decisions determined this. He referred to the case of Co-operative Bank of Kenya Limited vs Patrick Kangethe Njuguna & 5 Others [2017]eKLR, Muturi & Another vs Diamond Trust Bank Kenya Limited [2024] KEELC 6167 (KLR), Suzanne Achieng Butler & 4 Others vs Redhill Heights Investments Limited & Another [2016]eKLR, Madara & 2 Others vs Chite & Another (2023KEHC; Dragon Agencies Limited vs Advent Valuers Limited (2024) KEHC; and Agricultural Finance Corporation vs Lengetia Limited & Jack Mwangi [1985]eKLR among others.
26.The Defendant also referred to Black’s Law Dictionary 9th Edition in defining the word use and they further submitted that contracts ought to be incidental to the “use” of land. At the same time the Defendant took issue with the Plaintiff’s authorities and especially Suzanne Achieng Butler on the issue of jurisdiction terming the Plaintiff’s application to be a misapplication of the said case.
27.Further the Defendant stated that at paragraph 2 of the Plaint, the Plaintiff admitted being in charge of the infrastructural installations which for the Defendant is primarily a task that is under the commercial jurisdiction. That as a matter of fact, the Plaintiff essentially removes itself even from the predominant purpose test since he never entered into a contractual; relationship with the Defendant thus there is no disposition of interest to the suit property. Thus, there is want of privity to the contract.
28.The Defendant scoffs at the identity of the Plaintiff and submits that whereas a corporation was envisaged under Section 17 of the Sectional Properties Act, the said body is one registered by the Registrar of Lands upon registration of a sectional plan and that the pleadings of the Plaintiff reveal that it is not such a corporation.
29.In the end the Defendant concluded that the claim is entirely commercial and does not invoke any dispute concerning the use, occupation or title to land and accordingly the Preliminary Objection should be upheld and the suit struck out with costs for want of jurisdiction.
Analysis and Determination
30.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 (Supra) where it was held as follows:-
31.In Oraro vs Mbaja 2005 1 KLR 141 the Court described a Preliminary Objection as follows;
32.On the same issue, in Avtar Singh Bhamra & Another vs. Oriental Commercial Bank, Kisumu High Court Civil Case NO. 53 of 2004, the Court held that:
33.Upon reading the Preliminary Objection as well as the rival submissions of the parties herein, the Court is satisfied that the following issues as framed shall adequately deal with the objections raised to wit:-a.Whether this Court has jurisdiction to entertain this suit;b.Whether the Plaintiff has locus standi to institute, maintain and prosecute this suit;c.Who shall bear the costs?
34.In Samuel Kamau Macharia & Another –Vs- Kenya Commercial Bank Limited & 2 Others [2012] eKLR, the Supreme Court stated the following on jurisdiction:
35.Article 162(2)(b) of the Constitution of Kenya vests this Court with jurisdiction over disputes relating to the environment, the use and occupation of, and title to land. This is expounded in Section 13 of the Environment and Land Court Act, which stipulates as follows:
36.In determining whether a particular case is a dispute about land and is properly before the Environment and Land Court or not, the Court shall apply the pre-dominant purpose test as persuasively stated in the case of Suzanne Butler & 4 Others vs Redhill Investments & Another (supra), where the Court held that:
37.the Constitution itself is clear that matters relating to land can only be determined before this Court, as is further informed by Section 13 of the ELC Act. Going by the Plaint, the Plaintiff bought the suit property from the Defendant who had advertised the same to be serviced plots and that they were part of a gated community with controlled development and that the purchase price included all the services mentioned at paragraph 7 of the plaint.
38.The issues raised by the Plaintiff cannot be severed to be heard by the High Court and the ELC Court. The reliefs sought by the Plaintiff are centred around ownership, use and occupation of the properties located within Ruiru excised into 175 plots measuring 0.25 acres from THETA THETA Block 4 on land LR 112874 & LR 11285/7 of the property known as L.R. No. 1866/14 as well as transfer of the resultant plots to the members of the Plaintiff. These reliefs are of such a nature that they can only be issued and/or obtained from this Court,and this Court is guided by the case of Paul Nderi Warui & 24 others vs Chrysogon Wang’ondu Nduhiu & 3 others (2021) eKLR where it was held that:-
39.Ultimately, it is clear that the dispute revolves around land. Therefore, in line with the predominant purpose test, this Court is clothed with the requisite jurisdiction to hear and determine it.
40.Closely tied to jurisdiction is the question of locus standi, which is defined as the right to bring an action or to be heard in a given forum. The Defendant has submitted that the Plaintiff has no locus standi or capacity to institute, maintain and prosecute this suit. The Defendant claim that this is because the Plaintiff did not enter into a contract with Defendant and that it is not the company anticipated under the Act. And as a result, they urge that the suit is incompetent and should be dismissed. In the case of Law Society of Kenya vs Commissioner of Lands & 2 Others [2001] eKLR, the Court held that ;-
41.Further in the case of Alfred Njau & 5 Others vs City Council of Nairobi [1983]eKLR, the Court also held that;-
42.Undoubtedly, locus standi is the right to appear and be heard in Court or other proceedings and literally, it means ‘a place of standing’. If a party is found to have no locus standi, then it means they cannot be heard even if they have a prima facie case. Locus Standi also touches on the jurisdiction of the Court, in that if the Plaintiff lacks locus standi, the Court lacks jurisdiction to determine the matter before it. Consequently, such a finding may dispose of the suit, as is the nature of a Preliminary Objection, without the Court having to resort to ascertaining the facts from elsewhere apart from looking at the pleadings alone. See also Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others (2014)eKLR; and Rajesh Pranjivan Chudasama vs Sailesh Pranjivan Chudasama (2014) eKLR).
43.Although not standard procedure to consider documents outside pleadings in determining a Preliminary Objection, the Court has also considered the authority of Wilmot Mwadilo, Edwin Mwakaya, Amos Nyatta & Patrick Mbinga vs Eliud Timothy Mwamunga & Sagalla Ranchers Limited (2017)eKLR, where it was held that:-
44.It is however the Plaintiff’s claim that it has locus standi and that it seeks Judgment for what is required for use of the suit property.
45.In the instant suit the Plaintiffs claim to be a Chairman and the Secretary of the Plaintiff’s Company whose members entered into a contract with the Defendant on sale of its property. The Plaintiff is not a party to the Sale Agreement. Its claim is stemming from the fact that it is the legally registered management entity incorporated to oversee the administration, maintenance and overall management of the suit property bought by the members of Plaintiff company from the Defendant.
46.A Company resolution dated 14/03/2025 was filed vide the Verifying Affidavit and a copy of the CR 12 which Dennis Ireri as a Director and the Resolution shows that Rebecca is the Secretary of the Plaintiff.
47.It is trite that the onus rests on the person instituting proceedings to allege and provide locus standi. Locus standi is divorced from the substance of a party’s case and is a question to be decided at the outset before the merits are considered. It is an essential element of every case.
48.The Plaintiff/Respondent is acting not in its own capacity but in the interests of a group of its members who are affected by the decision of the Defendant of not completing the infrastructural developments as was agreed. The Plaintiff is thus acting in the public interest of its members. Therefore, the question of locus standi is determined well through the representative suit. The question of whether or not the Plaintiff is who it claims to be can only be determined at the hearing, where the Defendant will have an opportunity to provide evidence to prove that the Plaintiff is not who they claim to be.
49.Now, a suit seeking a declaration of a fundamental breach of contractual obligations regarding infrastructure development on a suit property generally falls under the jurisdiction of the Environment and Land Court (ELC) in Kenya.
50.As already discussed, the determining factor is the "predominant purpose test". The ELC has the mandate to hear and determine disputes related to the use and occupation of, and title to land, including contracts that grant enforceable interests in land.
51.The dispute in this suit is intricately tied to infrastructure development on a specific suit property, directly involving the "use" and potentially the "title" or "tenure" of the land. The ELC Act explicitly grants the ELC power to hear and determine disputes related to:i.Land use, planning, title, tenure and boundaries.ii.Public, private, and community land and contracts or other instruments granting any enforceable interests in land.
52.Therefore, even though the action involves a "contract", the subject matter is land-specific infrastructure development, making the ELC the appropriate forum. In the case of infrastructure development, the contract is intrinsically linked to the physical land, its use and potential environmental impacts.
53.Further, the Environment and Land Court has exclusive jurisdiction over disputes concerning the environment and land use, occupation and title. This is supported by several legal provisions:i.Article 162(2)(b) of the Constitution established the ELC for disputes related to the environment and land use, occupation, and title.ii.Section 13(2)(d) of the ELC Act grants the Court power to hear disputes concerning "contracts, choses in action or other instruments granting any enforceable interests in land".iii.Section 150 of the Land Act affirms the ELC's jurisdiction over disputes concerning land under that Act.
54.Therefore, it is my opinion supported by the above constitutional and statutory provisions that a contract for infrastructure development on land is inherently related to the use and occupation of that land and creates an enforceable interest in it. Such a dispute is within the ELC’s jurisdiction, as it involves land use and potentially environmental considerations.
55.Consequently, the Preliminary Objection challenging the ELC's jurisdiction is unmerited, as the ELC is the appropriate Court for disputes primarily concerning land, even if based on a contract.
Determination
56.The upshot of all this is that the Notice of Preliminary Objection dated 26/05/2025 fails; the same is dismissed with costs to the Plaintiff. Parties shall proceed to take directions on the expeditious disposal of the suit.
Further Order
57.Parties to go for Pre-trial Conference before the Deputy Registrar on 19/03 2026.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 26 TH DAY OF JANUARY, 2026 VIA MICROSOFT TEAMS. …………………………MOGENI J JUDGE In the presence of:Mr. Wamae holding brief for Ms. Githogori for the PlaintiffMr. Lubeto for the DefendantMr. Melita – Court Assistant