https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3804

Collins (Joined as legal representatives of the Estate of Wilson Omoke Edambo-Deceased) & 2 others v Choge & 5 others (Environment and Land Case 122 of 2021) [2026] KEELC 3804 (KLR) (16 June 2026) (Ruling) Neutral citation: [2026] KEELC 3804 (KLR) Republic of Kenya In the Environment and Land Court at Kapsabet Environment and Land Case 122 of 2021 GMA Ongondo, J June 16, 2026 Between Kamidi Collins (Joined As Legal Representatives Of The Estate Of Wilson Omoke Edambo-Deceased) 1st Plaintiff Aggrey Oyavo Edambo 2nd Plaintiff Albert Madete Edambo 3rd Plaintiff and Eglyne Chepchirchir Choge 1st Defendant Mirriam Arum Choge 2nd Defendant Christian Choge 3rd Defendant Joseph Ang’Ang’A (Sued As Legal Representative Of The Estate Of Simeon Choge – Deceased) 4th Defendant The Lands Registrar, Nandi County 5th Defendant The Attorney General 6th Defendant Ruling 1.This ruling pertains to a preliminary objection dated 21st October 2025 by the 1st to 4th defendants represented by Duncan Tallam and Company Advocates alongside K.K Arap Sego and Company Advocates anchored upon the grounds infra;a.That the Plaintiff lacks locus standi/capacity to sue the 1st – 4th Defendants herein.b.That, this Honourable Court lacks jurisdiction to hear and determine this suit.c.That, the suit offends the provisions of Section 29 and 30 of the Land Adjudication Act, Cap 284 Laws of Kenya hence an abuse of court process and the suit be struck out forthwith.d.That, the suit herein offends the doctrine of exhaustion of remedies. 2.Notably, the instant suit was instituted by way of a plaint (Fast Track) amended on 21st March 2024 by the 1st to 3rd plaintiffs through A.B.L Musiega and Company Advocates against the defendants for the following orders;a.A declaration does issue in terms that land parcel Nandi/Kapkerer/279 (The suit land herein) was on first registration lawfully registered in the name of Eli Edambo Kamidi as proprietor and through transmission was later lawfully registered in the names of the Plaintiffs as the current bona-fide proprietors and title holders as per the original land register which remain valid for all purposes and on this basis, all restrictions filed on the parcel in favour of the defendants or the estate of the late Simeon Kiptum Choge shall be removed.b.A declaration do issue in terms that any other registration in the lands office at Nandi County Land Registry or other office dealing with the suit land purporting the said land parcel to have been registered in the name of Simeon Kiptum Choge as proprietor or the entries on the parallel green card or land register opened and or maintained by the defendants showing the said Simeon Kiptum Choge to have at any time been registered proprietor of the suit land is null and void for all purposes and is ordered cancelled.c.A permanent injunction do issue restraining the defendants severally and jointly from ever against tempering with the land register (green card) for the suit land in favour of Simeon Kiptum Choge or in favour of the Plaintiffs or any other person claiming under them and further restraining the defendants personally and by their representatives, agents workers, servants or any other person claiming under them from accessing, occupying, remaining on or using the suit land or in any other manner from interfering with the Plaintiff’s right to or occupation and use of the said land.d.Costs of this suit be recovered from the defendants. 3.In summary, the plaintiffs claimed that the suit land on first registration on 22/1/2002 registered in the name of Eli Edambo Kamidi as proprietor with a restriction by the Chief Land Registrar on account of some Appeals before the Minister which were never disclosed on the register (green card) which was opened the same date. The suit land was later transferred to the Plaintiffs as proprietors on 9th November 2012 pursuant to the orders of the High Court in Kisumu Succession Cause No. 58 of 2004 which confirmed the plaintiffs as the lawful beneficiaries of the land after Eli Edambo Kamidi (deceased) and Kisumu High Court Misc. Civil Application No. 160 of 2009 which ordered cancellation of the restriction on the land filed by the Chief Land Registrar. 4.Also, the plaintiffs asserted that a suit namely Eldoret Environment and Land Court ELC Case No. 34 of 2016; Eglyne Chepchirchir Choge and Others –versus- Ham Singa Edambo and others claiming the suit land on behalf of the estate of the late Simeon Kiptum Choge, was dismissed by the court. That without any lawful authority, the 1st to 4th defendants in collusion with the 5th and 6th defendants have opened a parallel register for the suit land in the name of Simeon Kiptum Choge as proprietor and issued or caused to be issued official search certificate to that effect dated 31st January 2020 purporting the said Simeon Kiptum Choge to have been registered proprietor of the subject land on 22/1/2002 hence precipitating the suit and the preliminary objection thereto. 5.In their amended statement of defence dated 4th June 2024, the 1st to 4th defendants denied the plaintiffs’ claim and prayed for dismissal of this suit. They stated in part that in Kisumu HC Succession No. 58 of 2004, the Court held that it had no jurisdiction to handle the proceedings as the subject matter had changed hands and was no longer registered in the name of the late Edambo Kamidi. That the court restriction placed by the Chief Land Registrar was lifted by orders in Kisumu HC Misc Application number 16 of 2009. 6.The defendants stated that in Eldoret ELCC NO. 34 of 2018, the court held that it had no jurisdiction over the matter. That adjudication process had not come to an end and the objection proceedings leading to the registration of the suit land in the name of the deceased Eli Edambo Kamidi was flawed and fraudulent. That the Land Registry simply perfected what had been decided on appeal which the plaintiffs sought to circumvent in Kisumu HC Misc Civil Appeal No. 160 of 2009. 7.The 5th and 6th defendants did not take part in the preliminary objection. 8.It is notable that on the 21st May 2025, Flora Malanda the learned counsel for the plaintiffs prayed to have the original 5th defendant removed as a party herein. The prayer was granted hence, the 6th and 7th defendants were treated as the 5th and 6th defendants respectively. 9.The preliminary objection regarding the jurisdiction of the court, among other grounds, was heard by way of written submissions further this Honourable court’s directions given on 27th October 2025 and the decision in the case of Kakuta Maimai Hamisi vs Peris Pesi Tobiko & 2 others (2013) JELR 97000 (CA), where the Court of Appeal stated;‘ A question of jurisdiction once raised by a party or by the court on its motion must be decided forthwith…….’ 10.So, learned counsel for the 1st to 4th defendants filed submissions dated 7th January 2026, termed the preliminary objection unqualified, premature and against the lawful processes and procedure thus, implored the court to dismiss the same with costs. Counsel made reference to grounds of the preliminary objection and the brief facts of the matter inclusive of adjudication process, the appeal to the Minister and previous cases as stated in paragraphs 5 and 6 hereinabove. The main issue for determination as framed in the submissions is whether this court has jurisdiction to hear and determine the suit. Counsel submitted in the negative. 11.In the issue analysis, counsel submitted that the plaintiffs have never been in possession of the suit land since the year 1972. That they ought to have anchored their claim the estate of their late father Eli Edambo Kamidi. That the matter was determined by the Minister after adjudication process had been finalized under sections 29 and 30 of the Land Adjudication Act Chapter 284 Laws of Kenya. To fortify the submissions, reliance was made on, inter alia, Oraro vs Mbaja (2005) eKLR, Otieno vs Ougo (1986-1989) EALR 468 alongside Motor Vessel ‘Lillian S’ vs Caltex Oil Kenya Limited (1989) eKLR as regards jurisdiction and Speaker of the National Assembly vs James Njenga Karume (1992) eKLR on Locus standi and exhaustion principles respectively. 12.By the plaintiffs’ submissions 22nd May 2026, reference was made to the preliminary objection, the grounds of opposition and the principle governing preliminary objections as articulated in Mukisa Biscuits Manufacturing Company Ltd vs West End Distributors Ltd 91969) EA 696. Counsel submitted that That since the plaintiffs are legal representatives and beneficiaries of the estate of the deceased, they have locus standi in this suit as held in Waweru vs Republic (2006) KLR and that Otieno case (supra) is distinguishable. That this court has the jurisdiction over all disputes touching on land , title and land records as held in Malcolm Bell vs Daniel Toroitch Arap Moi and another (2013) KLR. That exhaustion principle does not apply as adjudication process was finalized herein as noted in Speaker of National Assembly case (supra) and Benard Murage vs Fine Serve Africa Ltd & 3 others (2015) eKLR, among other authorities. 13.Counsel submitted that the preliminary objection contains no pure point of law as each ground requires investigation of facts. That the same is incompetent and all the grounds fail. That the plaintiffs’ claim discloses a clear case of action grounded on fraud and constitutional right to property rights hence, the suit deserves full hearing on merits. That thus, the preliminary objection be dismissed with costs. 14.In the foregone, is the preliminary objection sustainable? 15.It is important to note that the preliminary objection was raised to the suit in line with the case of Mukisa Biscuit Manufacturing Co. Ltd (supra), where the Court of Appeal observed;“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.” 16.In the case of Oraro (supra), Ojwang J (As he then was) opined;“A preliminary Objection…………raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.” 17.Concerning the ground of locus standi/capacity, the 1st to 4th defendants asserted that plaintiff lack locus standi to mount this suit. In the case of Alfred Njau & others vs City Council of Nairobi (1982-88) 1 KAR 229, the Court of Appeal was of the considered view that;’……locus standi is the right to appear or be heard in court or other proceedings……’ 18.In the case of Otieno (supra), the Court delivered itself as follows;“…An administrator is not entitled to bring any action as Administrator before he has taken out letters of administration. If he does, the action is incompetent as of the date of inception.’ 19.Similarly, in Rajesh Pranivan Chudasama vs Sailesh Pranjivan Chudasama (2014) eKLR, the Court of Appeal remarked;‘…….a litigant is clothed with locus standi upon obtaining a limited or full grant of letters of administration in cases of intestate succession……’ 20.On the second ground, Halsbury’s Laws of England 4th Edition Volume 9 at page 350, describes ‘Jurisdiction’ thus;‘…..the authority of the Court which a court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for decision…….’ (see also John Beecroft Saunders in his treatise Words and Phrases legally defined Volume 3 at page 113) 21.It is trite law that jurisdiction denotes whether the adjudicatory body has the power to entertain the proceedings; see Benson Ambuti Adega & 2 others vs Kibos Distillers Ltd & 5 others (2020) eKLR. 22.In the celebrated case of Owners of the Motors Vessels “Lilian S” (supra), the Court of Appeal observed that jurisdiction is everything and without it, a court has no power to take one more step. That jurisdiction must be acquired before judgment is given. That where the court has no jurisdiction there is no need to continue the proceedings. 23.Furthermore, in the case of Republic vs Karisa Chengo & 2 others (2017) eKLR, the Supreme Court of the Republic of Kenya held;…‘ ……Lack of jurisdiction thus renders a court’s decision void as opposed to it being merely voidable…….’ (see also Joseph Muthee Kamau & another vs David Mwangi Gichure & another (2013) eKLR ) 24.On the third and fourth grounds, section 30 (1) and (2) of the Land Adjudication Act (Cap 284 Laws of Kenya) provides for staying of land suits as follows;i.Except with the consent in writing of the adjudication officer, no person shall institute, and no court shall entertain any civil proceedings concerning an interest in land in an adjudication section until the adjudication register for that adjudication section has become final in all respects under Section 29 (3) of this Act.ii.Where any such proceedings were begun before the publication of the notice under Section 5 of this Act, they shall be discontinued, unless the adjudication officer, having regard to the stage which the proceedings have reached, otherwise directs.” 25.In that regard, in the case of Lopore Ole Maito vs Letwat Kortom & 2 others (2016) eKLR, Mutungi J held;‘……the Land Adjudication Act sets an elaborate procedure through which the rights and interests of all …..once that process and procedure is followed and completed the determination of such rights and interests is final. The Act provides an appropriate mechanism for resolution of disputes. The Minister is the apex in that dispute resolution mechanism……….A party therefore aggrieved by the Minister’s decision can only challenge such determination by way of judicial review and not otherwise if he considers the Minister acted wrongly or exceeded his jurisdiction…’ 26.It is established law that where there exists a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly be adhered to since there are good reasons for such special procedures. That courts ought to be for a of last resort and not the first port of call the moment a storm brews. That the exhaustion doctrine is a sound one and serves the purpose. Where there exists an alternative remedy through statutory law, then it is desirable that such statutory remedy should be pursued first; See Speaker of National Assembly and Benard Murage (Both supra) and Geoffrey Muthinja Kabiru & 2 others vs Samuel Muguna Henry & 1756 others (2015) eKLR. 27.Clearly, a preliminary objection may dispose of a suit at any stage. However, there are emerging issues tied deeply to contested fraud as disclosed in paragraphs 9,11,12 of the amended plaint and paragraphs 13,14, 15 and 18e and 18g of the 1st to 4th defendants’ amended defence herein which should be tested or ascertained at a formal hearing of the suit as noted in Mukisa and Oraro cases (supra). 28.Moreover, Ms Lausi Mwalaa learned counsel for the 1st and 2nd interested parties namely Lydia Mugwanga Singa and another drew the attention of this Honourable court to the notice of appointment of Advocates dated 25th May 2026 by the intended interested parties through Akiro and Company Advocates before the determination herein. Therefore, this court cannot shut its eyes on the said parties at this stage of the suit in the spirit of access to justice and unlimited right to fair trial under Articles 25 (c ), 48, 50 (1) of the Constitution of Kenya 2010; see also James Kanyiita Nderitu and another vs Marios Philotas Ghikas and another (2016) eKLR. 29.A fortiori, the preliminary objection dated 21st October 2026 by the 1st to 4th defendants, is not sustainable and the same is hereby disallowed with costs in the cause. 30.It is so ordered. DATED AND DELIVERED AT KAPSABET THIS 16TH DAY OF JUNE 2026.HON. G M A ONGONDOJUDGEIn the presence of;1. Mr. Lugadiru instructed by Musiega learned counsel for the plaintiffs.2. Mr. Duncan Tallam learned counsel for the 1st to 4th defendants.3. M/s Lauzi Mwalaa learned counsel for the intended interested parties.4. Mr. Walter Kipkorir, Court Assistant.