Burgei v Kemboi & 2 others (Environment and Land Case E050 of 2026) [2026] KEELC 3663 (KLR) (15 June 2026) (Ruling)

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ELDORET** ***(Coram: C.N. Ondieki, J.)*** **ELCLC NUMBER E050 OF 2026** **BETWEEN** **ALBERT KIPTOO BURGEI....................................PLAINTIFF/APPLICANT** **AND** **JACKSON KIPROTICH KEMBOI………………1ST DEFENDANT/RESPONDENT** **COUNTY LAND REGISTRAR UASIN GISHU.2ND DEFENDANT/RESPONDENT** **ATTORNEY GENERAL………………………….3RD DEFENDANT/RESPONDENT** **RULING** **PART I: INTRODUCTION** 1. Theoverriding objective - otherwise popularly known as the oxygen principle - of the Civil Procedure Act (hereinafter “CPA”) and the Civil Procedure Rules (hereinafter “CPR”); the Environment and Land Court Act (hereinafter “ELC Act”); Rules made under both the CPA and ELC Act; The Practice Directions on Standardization of Practice and Procedures in the Environment and Land Court, 2025 (hereinafter “PDELC”); is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the said Acts. See section 1A(1) of the CPA; section 3(1) of the ELC Act; and Practice Direction 4 of the PDELC. 2. The framework for giving effect to the oxygen principle resides in the double-edged and symmetrical obligations reposed in both the Court and parties. On one hand, parties and their advocates, if any, are obligated to assist the Court to further the said oxygen principle by *inter alia,* participating in the processes of the Court and complying with the directions and orders of the Court. See sections 1A(3) of the CPA and 3(3) of the ELC Act. On the other hand, in striking a delicate balance towards attainment of the said oxygen principle, the Court is obligated to progress all matters committed to it for resolution for the purpose of attaining the just determination; efficient disposal; efficient use of the available judicial and administrative resources; the timely disposal thereof to keep in check inter alia the cost element of suits; leveraging suitable technology; and serving the ends of justice in this regard. See section 1B of the CPA; and Practice Direction 23(m) of the PDELC. 3. Accordingly, whenever a Court is construing any of the provisions of the CPA; ELC Act and Rules under both Acts, the Court is enjoined to always train its eye on giving effect to the said oxygen principle. See section 1A (2) of the CPA; section 3(2) of the ELC Act; and Practice Directions 4 & 23(m) of the PDELC. 4. The Constitution of Kenya and *The* *Social Transformation Through Access to Justice* Vision of the Chief Justice (hereinafter “STAJ”) desires a Judiciary that enforces corrective, transformative and justice-seeking reliefs. The Constitution thus recognizes the principle that Judges are not merely dispute resolvers but custodians of justice with the attendant duty to train their eyes on people-centred justice. 5. In this connection, through the lens of multi-door approach to justice, the said people-centered justice can equally be served through ADR. It will be recalled that STAJ and the Performance Management and Measurement Understanding (hereinafter “PMMU”) executed by this Court, anticipates determination of this suit **within one year from the date of filing.** Parties will certainly concur that this timeline is by all standards ambitious. This ambitious timeline translates that all parties must work round the clock, within ambitious and strict short timelines to be set by this Court and in accordance with the Overriding Objective of the civil procedure rules under sections 1A and 1B of the CPA and section 3 of the ELC Act (to facilitate just, expeditious, proportionate, and affordable resolution of disputes). Each party and Advocate must thus discharge their obligation to assist this Court achieve the said Oxygen Principle. 6. Beyond Articles 60(1)(g) and 159(2)(c) of the Constitution, ADR is firmly erected on the firm foundation of Article 1 of the Constitution. Article 1 of the Constitution recognizes constituent power (that the people of Kenya can exercise their sovereign power directly or indirectly). 7. And so, provided that ADR is not applied in a manner that contravenes the Bill of Rights; repugnant to justice and morality; or results in outcomes that are repugnant to justice or morality; or is inconsistent with this Constitution or any written law*,* Article 159(2)(c) of the Constitution - which provides that **“(*c*) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3)” -** enjoins this Court to promote ADR. 8. Further, special ADR attention is paid to land disputes through Article 60(1)(g) of the Constitution which makes provision for principles of land administration and management as follows: **“(g) encouragement of communities to settle land disputes through recognised local community initiatives consistent with this Constitution.”** 9. In addition, Practice Direction 7 of the PDELC obligates the Court to promote AJS. It further encourages parties to as far as possible, consider AJS. In addition, this Court may exercise its discretionary power to refer a matter to ADR under Practice Direction 23(k) of the PDELC. Besides, at any stage, the Court may refer a matter to ADR in accord with Practice Direction 25(f) of the PDELC. 10. How then is ADR invoked? The law provides that the Court may either on the motion of the parties or on its own motion where it deems it appropriate to do so or where the law so requires, direct that any dispute committed to the Court for resolution be referred to ADR. See section 59B of the CPA which provides that **“(1) The Court may — (a) on the request of the parties concerned; or (b) where it deems it appropriate to do so; or (c) where the law so requires, direct that any dispute presented before it be referred to mediation.”** Beyond mediation, the Court may direct that a suit be referred to any other method of ADR where the parties agree or the Court considers the case suitable for such referral. See section 59C of the CPA which provides that **“(1) A suit may be referred to any other method of dispute resolution where the parties agree or the Court considers the case suitable for such referral.”** **PART II: ADR PROPOSED BY THIS COURT IN REGARD TO THE APPLICATIONS DATED 21.5.2026 AND 28.5.2026 BOTH OF WHICH WERE FILED BY THE PLAINTIFF** 1. In furtherance of the oxygen principle, on 15.6.2026, during the Mention of this matter for directions on two Applications filed by the plaintiff, dated 21.5.2026 and 28.5.2026, this Court sought to understand the fear of the Plaintiff in each of the two Applications and whether alternative mechanisms proposed by the Court namely: 1. an Inhibition under section 68 of the Land Registration Act, pending hearing and determination of this suit, to address the fear in the Application dated 21.5.2026; and 2. an order of *status quo* can, pending hearing and determination of this suit, address the fear in the Application dated 21.5.2026. 2. Section 68 of the Land Registration Act (hereinafter “LRA”) provides that **“(1) The Court may make an order (hereinafter referred to as an inhibition) inhibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge. (2) A copy of the inhibition under the seal of the Court, with particulars of the land, lease or charge affected, shall be sent to the Registrar, who shall register it in the appropriate register. (3) An inhibition shall not bind or affect the land, lease or charge until it has been registered.”** 3. During the pendency of an inhibition, any instrument that is inconsistent with the inhibition shall not be registered. See section 69 of the LRA. 4. And finally, section 70 of the LRA provides that **“The registration of an inhibition shall not be cancelled except in the following cases — (a) on the expiration of the time stated in the inhibition; (b) on proof to the satisfaction of the Registrar of the occurrence of an event stated in the inhibition; (c) on the land, lease or charge being sold by a charge, unless such sale is itself inhibited; or (d) by a consequent order of the Court.”** 5. In response to the proposal of this Court in relation to the Application dated 21.5.2026, learned Counsel, Mr. Muliro, for the Plaintiff and learned Counsel, Mr. Warigi, for the Defendant were of the concurring view that no prejudice will be suffered by their clients if an inhibition is issued by this Court to address the fears underpinning the Application dated 21.5.2026. 6. In response to the proposal of this Court in relation to the Application dated 21.5.2026, however, although both Counsel were of the concurring view that no prejudice will be suffered by their clients by a *status quo* order, whereas Mr. Muliro for the Plaintiff urged this Court to structure the order in such a way that it applies to the status before the 1st Defendant entered the suit property, Mr. Warigi for the 1st defendant urged this Court to structure the order in a such a way that it applies to the status after entry of the 1st defendant*.* In regard to presence of any activity or structures on the suit property, both Counsel converged at the point that both the plaintiff and the 1st defendant have structures in the suit property. 7. In this connection - pursuant to **Articles 1, 159(2)(c), and 60(1)(g) of the Constitution; sections 59B and 59C of the Civil Procedure Act (hereinafter “CPA”); Order 11, Rule 3 (a) - (c) of the CPR; and Practice Directions 7, 23(k) & 25(f) of the PDELC** - instead of taking the long and winding pathway of hearing and determining the two Applications which will certainly consume golden judicial time which would have been optimized in hearing and disposing the main suit, and there being no compelling reasons against taking this pathway since the alternative pathway cannot possibly contravene the Bill of Rights, is not repugnant to justice and morality; its outcomes cannot possibly be repugnant to justice or morality; and cannot possibly be inconsistent with this Constitution or any written law, this Court deems it appropriate to to direct parties to this matter to consider ADR in relation the Application dated 28.5.2026. **PART III: DISPOSITION** 1. **Wherefore, by Consent of the parties, this Court issues an inhibition – under section 68 of the Land Registration Act and with the legal effect contemplated by section 69 of the LRA - in relation to Title Number Cheptiret/Cheplaskei Block 3 (Sertwet) 243, pending hearing and determination of this suit and specifically to expire on the date of the Judgment to be rendered in this matter or the date of any other decision of the Court which conclusively and finally settles this matter.** 2. **The 2nd Defendant/Respondent is directed to register the inhibition within a period of 14 days from the date of service.** 3. **This inhibition shall be construed in accord with section 70(a) & (b) of the Land Registration Act – and shall thus be cancelled on the date of the Judgment to be rendered in this matter or the date of any other decision of the Court which conclusively and finally settles this matter, upon proof to the satisfaction of the Uasin Gishu County Land Registrar of the occurrence of the Judgment or any other decision of the Court which conclusively and finally settles this matter - without the need of a consequent or subsequent Order of the Court contemplated by section 70(d) of the Land Registration Act.** 4. **This Order shall be extracted and served upon the 2nd Defendant/Respondent within a period of 3 days, by learned Counsel for the Plaintiff/Applicant.** 5. **Having resolved the Application dated 21.5.2026 by Consent - using the alternative dispute resolution remedy proposed by this Court namely an inhibition - and having remained only with the Application dated 28.5.2026; and in order to expedite hearing and determination of the main suit in accord with the oxygen principle; and pursuant to Articles 1, 159(2)(c), and 60(1)(g) of the Constitution; sections 59B and 59C of the Civil Procedure Act (hereinafter “CPA”); Order 11, Rule 3 (a) - (c) of the CPR; and Practice Directions 7, 23(k) & 25(f) of the PDELC - this Court directs both Counsel to discuss and structure a Consent which can address the said Application and which then will be adopted and settle the Application dated 28.5.2026. In this regard, there will be a Mention on 16.6.2026, at 9.00 am, for directions on the Court.** 6. **The costs of the two Applications shall be in the cause.** **Delivered, Signed and Dated in ELC Eldoret this 15th day of June, 2026** **…………….…………** **C.N. Ondieki** **Judge** **In the presence of:** **The Plaintiff/Applicant: Not present** **The 1st Defendant/Respondent: Not present** **The 2nd Defendant/Respondent: Not present** **The 3rd Defendant/Respondent: Not present** **Advocate for the Plaintiff/Applicant: Mr. Muliro** **Advocate for the 1st Defendant/Respondent: Mr. Warigi** **Advocate for the 2nd Defendant/Respondent: Ms. Rop** **Advocate for the 3rd Defendant/Respondent: Ms. Rop** **Court Assistant: Ms. Juma**