1.The Plaintiff commenced this suit through the plaint dated the 3rd February 2022, seeking for permanent injunction, specific performance, and declaratory orders in respect of a quarter acre of parcel Pioneer/Ngeria/Block 1 (EATEC)11533, the suit land, among others. The plaint was filed contemporaneously with the Notice of Motion of even date that seeks to restrain the 2nd Defendant or it agents from selling, advertising for sale, transferring or in any way disposing or interfering with the Plaintiff’s occupation and ownership of the said land. The 2nd Defendant filed a replying affidavit sworn by Timothy Kimani, on the 8th February, 2022, and Notice of Preliminary objection of the same date, in opposition to the application and suit.
2.The 2nd Defendant’s preliminary objection dated 8th February, 2021 seeks for the dismissal of the Plaintiff’s suit on the following grounds inter alia:i.THAT this suit is bad in law, inadmissible and incurably defective and incompetent as the Plaintiff does not have locus standi to institute this suit for the following reasons:a)The Plaintiff is not the registered owner of the suit property or the chargor and therefore has no any proprietary interest in the suit property.b)It is trite law that it is only a chargor who has a registered and proprietary interest in the land and who can complain that the statutory power of sale is being exercised unlawfully, wrongfully or oppressively.ii.THAT this Honourable Court has no jurisdiction to entertain this suit on account that the suit property is valued at Kshs. 7,800,000.00. Therefore, this suit is below the pecuniary jurisdiction of this Court.
3.The on the 14th March, 2022, the court gave directions after hearing both counsel present that the preliminary objection be heard and determined first, and further gave timelines for filing and exchanging submissions.
4.The Plaintiff filed their submissions dated the 11th April 2022 contending that she has the locus standi to institute and prosecute the suit as she has shown she had purchased the suit land and developed it. She referred to Article 48 of the Constitution and cited the case of Attorney General &Anor v. Randu Nzai Rwai and 2 others Civil Appeal No. 275 of 2012, in which the Court of Appeal held that “The right of every person to enter the courts unrestrained and should be availed the instruments of justice” and submitted that though she is not the registered owner of the land but a purchaser, she has the locus to sue as she is in actual possession. That further the 1st Defendant who sold the land to her and six months later charged it to defraud her, has not come to court though he has been served. The Plaintiff further submitted that this court has unlimited original jurisdiction as shown in section 13(1) of the Environment and Land Court Act No. 11 of 2011. That she filed the suit in this court, and not the lower court, because the notice served upon the Plaintiff had indicated the outstanding sum to be Kshs. 41,000,000/-. That accordingly this is the court with jurisdiction.
5.The following are the issues for the court’s determinations;a.Whether the Plaintiff has the locus standi to file and prosecute this suit.b.Whether this court has jurisdiction to hear and determine the suit.
6.The court has carefully considered the grounds on the 2nd Defendant’s notice of preliminary objection, the Plaintiff’s submissions and come to the following determinations;a.The Supreme Court in HASSAN ALI JOHO & ANOTHER V SULEIMAN SAID SHAHBAL & 2 OTHERS cited the leading decision on preliminary objections in MUKISA BISCUIT MANUFACTURING CO. LTD V. WEST END DISTRIBUTORS LTD. (1969) EA 696, where the Court held as follows:I take note of the fact that the grounds raised in the preliminary objection herein, being locus standi and jurisdiction, are pure points of law capable of disposing of the Plaintiff’s suit if upheld.b.That in SAMUEL KAMAU MACHARIA & ANOTHER VS KENYA COMMERCIAL BANK LIMITED & 2 OTHERS the Court held as follows:And Article 162(2) (b) of the Constitution and section 13 of the Environment and Land Court Act confirms that the Environment and Land Court has original and appellate jurisdiction to hear and determine all disputes relating to environment and the use and occupation of and title to land. Section 9 of the Magistrates Court Act, 2015 confers jurisdiction to the Magistrates Courts to hear and determine land disputes in exercise of Jurisdiction conferred upon it by Section 26 of the Environment and Land Court Act. The aforementioned Jurisdiction is subject to the pecuniary limits outlined in Section 7 of the Magistrates Court Act, 2015. The said Section 7 (1) (a) provides as follows:Section 11 of the Civil Procedure Act is instructive and provides as follows:c.The Plaintiff submitted that she resolved to file the instant claim before this court because the Courtesy Notice marked as STT-3 indicated that a sum of Kshs. 41,000,000.00 (sic) is due to the 2nd Defendant. The court has perused the said notice dated the 30th September, 2021 and it indicates the outstanding balance as Kshs. 42,533,112.96 as at 29th September 2021. That figure cannot in any way be taken to be the value of the quarter acre of the land that the plaintiff has sued over. The value of the subject matter of a claim or suit is the one to guide advocates and litigants when making the decision of the court to file a claim or suit. The 2nd Defendant has in ground 2 of the preliminary objection indicated the suit property is valued Kshs. 7,800,000.00. That value has not been disputed by the Plaintiff. That being the case I am inclined to agree with the counsel of the 2nd Defendant’s submission that this matter ought to have been filed before the Chief Magistrates’ Court, and not this Court since the value of the subject matter is approximately Kshs. 7,800,000.00. by the ction indicated the suit property is valued in actual possession. that That in REBECCA CHUMO V CHRISTINA CHEPTOO CHUMO  eKLR the Court made the following observation:That being the position of the law, it follows that the 2nd Defendant’s preliminary objection therefore succeeds on this ground.d.The court now turns to the ground that the Plaintiff lacks the requisite locus standi to file a claim, as she was not privy to the charge that was registered over the suit land between the 1st Defendant and the 2nd Defendant. The Court of Appeal in ALFRED NJAU & 5 OTHERS V CITY COUNCIL OF NAIROBI  eKLR discussed locus standi at length stated as follows inter alia:The Plaintiff has submitted that following her purchase of the suit land vide a sale agreement dated 17th April, 2015 marked STT 1, she took immediate possession of the suit land. That she has constructed houses on the suit land as is evidenced by the photographs marked as STT 2, and urged the court to find that she ought to be allowed to have unrestricted access to the court, as was held by the Court of Appeal in ATTORNEY GENERAL & ANOTHER V. RANDU NZAI RWAI AND 2 OTHERS CIVIL APPEAL NO. 275 OF 2012. The court is of the considered view that, had the Plaintiff provided proof that consent of the Land Control Board was applied for and obtained in accordance with section 6 of the Land Contol Act chapter 301 of the Laws of Kenya, after the execution of the agreement and payment of the consideration amount of Kshs. 6,000,000.00 made to the 1st Defendant, who has so far not participated in the proceedings, she would have established her interests on the suit land. In the absence of such evidence the court finds that the Plaintiff has not established that she has an enforceable interest on the suit land. The Plaintiff has also not provided any reasonable explanation to justify the delay in obtaining the requisite statutory consent and transferring the suit land to herself from April 2015, when she alleges to have purchased the suit land herein from the 1st Defendant. In the absence of the Land Control Board consent having been obtained within the six months from the date of the alleged sale agreement between the Plaintiff and the 1st Defendant, the inevitable conclusion is that if the said agreement existed, it became void in 2015. The court in MAXVICTOR ENTERPRISES LIMITED V GULF AFRICAN BANK LIMITED & ANOTHER  eKLR observed as follows:
7.That upon finding merit in the 2nd Defendant’s preliminary objection dated the 8th February 2022, the court orders as follows;a.That the Plaintiff’s suit and application commenced vide the plaint and notice of motion dated the 3rd February 2022 are hereby dismissed.b.The Plaintiff to pay the 2nd Defendant’s costs.