https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1120

Dzivo & 11 others (Suing on Their Own Behalf and on Behalf of Members of South Samburu Group Ranch) v Export Processing Zones Authority & 2 others (Civil Appeal E089 of 2023) [2026] KECA 1120 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1120 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal E089 of 2023 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA June 12, 2026 Between Dzivo Mdoe Dzivo 1st Appellant Elias Tsimba Ndegwa 2nd Appellant Yawa Ndegwa Mwagari 3rd Appellant Lubano Bahasi Gwaya 4th Appellant Mdoe Tungwa Bahasi 5th Appellant Justus Mangale Mudzomba 6th Appellant Mwangadu Yawa Mwagari 7th Appellant Ndimiro Ndegwa Mwagare 8th Appellant Mambo Mrema Wandumo 9th Appellant Mlai Mrema Mlai 10th Appellant Mzuga Nzuki Wamlai 11th Appellant Mdoe Dundo Chiphoro 12th Appellant Suing on Their Own Behalf and on Behalf of Members of South Samburu Group Ranch and Export Processing Zones Authority 1st Respondent National Land Commission 2nd Respondent The Registrar of Lands Kwale 3rd Respondent (An Appeal from the Ruling and Order of the Environment and Land Court at Kwale (A. E. Dena, J.) delivered on 21st October 2022 in Kwale ELC Case No. E022 of 2022 Environment & Land Case E022 of 2022 ) Judgment 1.This dispute arises from a long-standing contest between the South Samburu Group Ranch, the Appellants and the 1st Respondent, the Export Processing Zone Authority, (EPZA) over land. The Appellants, all members of the Group Ranch, approached the Environment and Land Court claiming that their land originally registered as Kwale/South Samburu/62 had been subdivided to create Kwale/South Samburu/64 (the disputed portion) and subsequently transferred to the EPZA. They claimed that the subdivision and transfer were carried out irregularly, without the approval or involvement of the Group Ranch’s genuine members, and in a manner contrary to the law governing group ranches and community land. 2.According to the Appellants, EPZA expressed interest in the land as early as 2011, following which, several meetings were held with individuals who purported to represent the Group Ranch, culminating in a decision that allegedly donated 200 acres of community land to EPZA in exchange for industrial development. The Appellants stated that they never took part in the meetings and that the transfer effected in 2014 was therefore unlawful; that when they learned of the transfer, they lodged a complaint with the National Land Commission (the Commission) which initially determined that EPZA, being a public institution, could not take over private land without paying compensation and directed that a restriction be placed on the title until all parties reached an agreement. 3.EPZA, contested the Commission’s determination, and asserted that the land was lawfully donated by the Group Ranch in recognition of the economic benefits the industrial park would bring. It further argued that the finding on compensation had no basis in law. The decision prompted it to file an appeal before the Commission which remained pending and where several public hearings had already been conducted. 4.In the course of the Appellants suit, EPZA raised a Preliminary objection, arguing that the matter had been placed before the court prematurely. The Preliminary objection was brought on the grounds that: the Appellants have not exhausted the internal dispute resolution mechanism under Section 39(3) of the Community Land Act, 2016; that the Appellants have no capacity to institute the suit on behalf of the Group Ranch since the Land (Group Representatives) Act Cap 287 was repealed, thereby invalidating proceedings; and that the application is incompetent, fatally defective and an abuse of court process and should be dismissed forthwith, even suo motu. 5.The trial court examined the history of the dispute and agreed that the Appellants had indeed initiated proceedings before the Commission that were determined, and that EPZA had in response lodged an appeal. Crucially, the court observed that the Commission was still actively engaged in hearings, as demonstrated by the various public hearings that had been held; that it was evident that the internal dispute resolution process was ongoing and had yet to reach a conclusion. 6.The learned Judge found that by approaching the court at this stage, the Appellants had acted prematurely and essentially bypassed the statutory mechanisms designed to address such disputes. In upholding the application of the doctrine of exhaustion, the court reaffirmed that where Parliament has established a clear procedure for addressing grievances, parties must follow that procedure before seeking judicial intervention. The court also found that the concerns raised by the Appellants which included fears that the Commission might overturn its earlier determination or procedural complaints were not sufficient to justify abandoning the established statutory process. 7.On reaching the findings, the trial court concluded that it lacked jurisdiction to entertain the matter at that stage and upheld the Preliminary objection, observing that, jurisdiction is foundational and cannot be assumed where statutory procedures have not been followed. The court also directed that the suit be stayed pending the completion of the processes before the Commission and the Land Acquisition Tribunal. 8.Aggrieved, the Appellants lodged an appeal to this Court on grounds; that the learned Judge was wrong in allowing the Preliminary objection dated 3rd June, 2022 on the question of the doctrine of exhaustion and the remedies when there were no sufficient grounds to support such a finding; in failing to appreciate that the dispute had already been fully adjudicated upon by the Commission and there was no valid Appeal pending before it; in failing to appreciate that the dispute before her involved the fraudulent and illegal conversion and transfer of community land by EPZA into private land; in failing to find that the court was empowered and had jurisdiction to investigate a title registered in favour of a private entity through fraud and illegal conveyance and thereafter issue orders for revocation and cancellation of such title, and rectification of the Register; in misinterpreting Sections 39(3) and 42(1) of the Community Land Act No. 27 of 2016 and arriving at a wrong decision; in failing to consider that the Appellants had sued the Commission in the suit, and it was prejudicial to the Appellants to be directed to file their “Appeal” before the Commission sitting as arbiter since the later would be biased towards maintaining their earlier decision; in rendering a decision that shut out the Appellants from the seat of justice and leaving them without recourse in law; and in holding that the dispute fell within the scope of the Land Acquisition Tribunal under Section 133A of the Land Act 2012 when the Appellants’ claim was based on illegal and fraudulent acquisition of Community Land by a private entity. 9.EPZA lodged a cross appeal affirming the decision of the Environment and Land Court on grounds that, if the Appellants were dissatisfied with the Commission’s acceptance of EPZA’s appeal, particularly where such acceptance was based on the recommendation of the Commission, then the Appellants’ proper recourse was to seek judicial review under Section 9(1) of the Fair Administrative Action Act. According to the 1st Respondent, the Appellants ought to have challenged that administrative action through the specialised mechanism provided for review of administrative decisions, rather than approaching the court prematurely. 10.The Respondents further argued that although the trial court has jurisdiction to issue judicial review remedies under Article 23(3)(f) of the Constitution, the Appellants have not demonstrated the presence of any exceptional circumstances that would justify bypassing the dispute resolution frameworks already available to them. In the absence of such circumstances, the doctrine of exhaustion should apply fully, and the Court was right to order that the Appellants exhaust those mechanisms before seeking judicial intervention. 11.Additionally, the Respondents asserted that the Appellants lack the legal capacity to institute the proceedings, either individually or in any representative capacity, as they are not registered or incorporated as required under Section 7(3) of the repealed Land (Group Representatives) Act, and therefore cannot sue in relation to the affairs of the Group Ranch or in connection with community land rights. 12.The Respondents also contended that the Environment and Land Court did not shut the Appellants out of the justice system, as alleged, because the court merely stayed the proceedings rather than dismissed them. In their view, the Appellants retained access to judicial remedies once the statutory dispute resolution processes are complete, and therefore cannot credibly claim to have been denied access to justice or left without any recourse in law. 13.The parties filed written submissions. When the appeal came up for hearing, learned counsel Mr. Mutubia appeared for the Appellants while learned counsel Ms. Asasha holding brief for Mr. Bake appeared for EPZA. There was no appearance for the Commission though served with the hearing notice. 14.In their written submissions, counsel for the Appellants submitted that the trial court erroneously upheld EPZA’s Preliminary objection by misapplying the doctrine of exhaustion in circumstances where the statutory mechanisms relied upon were inapplicable; that the Appellants’ dispute did not concern compulsory acquisition or community land management procedures, but was a straightforward claim of fraudulent subdivision, registration, and transfer of their land into the name of EPZA, which are matters that fall squarely within the jurisdiction of the Environment and Land Court. 15.Counsel further submitted that prior to filing the suit, the Appellants lodged a complaint with the Commission, which fully adjudicated and pronounced itself on the issue on 21st January 2019. The Commission confirmed that the Appellants’ land had been illegally excised and transferred, and further held that EPZA, being a public institution, could not take private land without compensation; that therefore, the learned Judge was wrong to treat the dispute as one pending before the Commission or requiring further administrative resolution, when in fact the Commission’s mandate had already been exhausted and no valid appeal was lodged by the Respondents. 16.Counsel for the Appellants also asserted that the reliefs sought namely cancellation of title and rectification of the register under Section 80 of the Land Registration Act can only be granted by the Environment and Land Court; that the court misdirected itself in finding that the matter fell within the jurisdiction of the Land Acquisition Tribunal or under Section 133C of the Land Act , particularly since, the suit was not grounded on compulsory acquisition, and the Respondents had never invoked such procedures. It was submitted that the title was transferred not through any statutory acquisition process, but through alleged fraud, forgery, and unlawful dealings, which issues only the trial court could address. 17.Furthermore, counsel submitted that the learned Judge’s decision to stay proceedings and referring the parties back to the Commission effectively denied the Appellants access to justice, in violation of Article 50 of the Constitution; that the Commission, which had already rendered its decision, could not offer the Appellants an impartial forum—especially when the Appellants had sued the Commission as a party to the proceedings. Counsel concluded that the ruling amounted to an abdication of the court’s judicial mandate under the Land Registration Act and the Environment and Land Court Act which had left the Appellants without any legal recourse, yet they were seeking enforcement of a determination already made in their favour. 18.In their written submissions, counsel for EPZA submitted that the appeal lacked merit and that the Ruling of the learned Judge should be upheld. It was submitted that, EPZA first approached the then County Council of Kwale on 8th July 2011 seeking land for an EPZA development, whereupon the community, acting through the Group Ranch, agreed to donate land for this public project; that initially 116 acres and later 200 acres was excised from Kwale/South Samburu/62, and following completion of the subdivision the disputed portion was duly registered in the name of EPZA by way of a gift, without monetary consideration.The 2nd Respondent did not file any written submissions. 19.As a first appellate court, this Court has a duty to analyze, reconsider and re-evaluate the entire evidence on record and reach its own independent decision, bearing in mind that, it did not see or hear the witnesses. The principles which guide a first appellate court were summarized in the case of Selle & Another vs Associated Motor Boat Co. Ltd & Others [1968] EA 123 thus:“…Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression on the demeanor of a witness is inconsistent with the evidence in the case generally.” 20.Having considered the record of appeal, the ruling of the trial court, the grounds of appeal and the parties’ rival submissions, the issues that arise for determination are:i.Whether the learned Judge rightly upheld the Preliminary objection on the basis of the doctrine of exhaustion;ii.Whether the Appellant’s claim properly fell within the jurisdiction of the Commission; andiii.Whether the Appellant’s claim ought to have been lodged before the Land Acquisition Tribunal. 21.Beginning with whether the doctrine of exhaustion was applicable to the circumstances. In this regard, the learned Judge had this to say:“…Prima facie from a look at the proceedings it is clear that a fresh enquiry was being undertaken on the issue with a view to determining the appeal lodged by the 1st defendant. My understanding from the pleadings and specifically paragraph 11 and 12 of the plaint is that their efforts to resolve the dispute through the 2nd defendant have been frustrated after they were denied a chance to be heard and that the 2nd defendant (sic) attempt to overturn the earlier determination is illegal and against the rules of natural justice. Clearly the process has not been completed it is ongoing. The plaintiff seemed to me to have jumped the gun and have concluded that the earlier decision will be overturned yet no decision has been rendered on the appeal”. 22.What the learned Judge meant was that since an appeal was pending against the decision of the Commission, the Appellants were required to first exhaust the appeal process conducted by the Commission before taking any further step in pursuance of their claims against the EPZA. 23.In ascertaining whether the doctrine of exhaustion was applied to this case, to begin with, the doctrine requires that where a statute establishes a dispute resolution mechanism, a party must exhaust that mechanism before invoking the jurisdiction of the courts. The question that then begs is whether the EPZA’s appeal was rightly before the Commission. 24.In the case of NGOs Co-ordination Board vs EG & 4 others; Katiba Institute (Amicus Curiae) (Petition 16 of 2019) [2023] KESC 17 (KLR) the Supreme Court outlined the doctrine of exhaustion of administrative remedies and outlined its finding in the case of Albert Chaurembo Mumbo & 7 others vs Maurice Munyao & 148 others; SC Petition No 3 of 2016, [2019] eKLR where it held that:“... even where superior courts had jurisdiction to determine profound questions of law, the first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi- judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute.”. 25.This Court in the case of R vs National Environmental Management Authority, Civil Appeal No. 84 of 2010; [2011] eKLR, observed that;“The principle running through these cases is where there was an alternative remedy and especially where Parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it ..." 26.It is therefore trite law that where an alternative method of dispute resolution established by legislation exists, courts must exercise restraint in taking up jurisdiction conferred by the Constitution and should instead defer to the dispute resolution bodies established by statutes with the mandate to deal with such specific disputes in the first instance. See also Narok County Council vs Trans Mara County Council [2000] 1 EA; Kones vs Republic & Another ex parte Kimani wa Nyoike & 4 Others [2008]3 KLR (EP); and Speaker of the National Assembly vs Njenga Karume [2008]1 KLR (EP) 425. 27.Having said that, the Commission’s jurisdiction is primarily derived from Article 67 of the Constitution and the National Land Commission Act. The Commission is established as an independent constitutional commission mandated to manage public land on behalf of the national and county governments and to oversee the administration and use of land in Kenya. 28.Under Article 67(2) of the Constitution, the functions and jurisdiction of the Commission include:“ 1.Managing public land on behalf of the national and county governments. 2.Recommending a national land policy to the national government. 3.Advising the national government on a comprehensive programme for the registration of title in land throughout Kenya. 4.Conducting research related to land and the use of natural resources and making recommendations to appropriate authorities. 5.Initiating investigations into present or historical land injustices and recommending appropriate redress. 6.Encouraging the application of traditional dispute resolution mechanisms in land conflicts. 7.Assessing tax on land and premiums on immovable property in areas designated by law. 8.Monitoring and overseeing land use planning throughout the country”. 29.The Commission also has statutory powers under the National Land Commission Act and the Land Act, to compulsorily acquire land for public purposes, and to undertake the renewal and extension of leases over public land, allocation of public land, and review of grants or dispositions of public land to establish their legality. 30.Regulation 30 of the National Land Commission (Review of Grants and Dispositions of Public Land) Regulations provides for appeals from decisions made by the Commission in proceedings relating to the review of grants and dispositions of public land. The Regulation grants any person aggrieved by the decision of the Commission a right of appeal to the Environment and Land Court. The appeal is required to be filed within fourteen days from the date of the Commission’s decision. The effect of the Regulation is to create a statutory appellate mechanism through which parties dissatisfied with determinations of the Commission may challenge those decisions before the Environment and Land Court rather than instituting separate proceedings in the first instance. The Regulation is anchored on Section 14 of the National Land Commission Act, which empowers the Commission to review grants and dispositions of public land in order to establish their legality or propriety. Once the Commission renders a determination after hearing the parties and considering the evidence, any party dissatisfied with the outcome may invoke the appellate jurisdiction of the Environment and Land Court under Regulation 30. The Court may then examine the legality, propriety and procedural fairness of the Commission’s determination. 31.Therefore Regulation 30 of the National Land Commission (Review of Grants and Dispositions of Public Land) Regulations, creates an external appellate process to the court, and not an appeal back to the Commission itself. Once the Commission has rendered its determination, it is rendered functus officio, except for limited powers such as correcting clerical or accidental errors permitted by law. As a consequence, the proper recourse for a dissatisfied party is therefore to file an appeal before the Environment and Land Court or to institute judicial review proceedings where appropriate. 32.In the case of Fleur Investments Limited vs Commissioner of Domestic Taxes & another [2018] KECA 341 (KLR) this Court held that:22.For this proposition the appellant called in aid this Court’s finding in the case of Speaker of National Assembly vs Njenga Karume (1990-1994) EA 546 where the Court expressed itself in relevant part as follows: -“…where there was an alternative remedy and especially where parliament has provided a statutory procedure, it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully to the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it…”“23.… Whereas courts of Law are enjoined to defer to specialized Tribunals and other Alternative Dispute Resolution Statutory bodies created by Parliament to resolve certain specific disputes, the court cannot, being a bastion of Justice, sit back and watch such institutions ride roughshod on the rights of citizens who seek refuge under the Constitution and other legislations for protection. The court is perfectly in order to intervene where there is clear abuse of discretion by such bodies, where arbitrariness, malice, capriciousness and disrespect of the Rules of natural justice are manifest. Persons charged with statutory powers and duties ought to exercise the same reasonably and fairly.” 33.In the case of Pamwhite Limited vs Karomo and Seinfert (Suing as the Chairman and Secretary, respectively of the New Nyali Residents Association) & 4 others (Civil Appeal E015 of 2023) [2025] KECA 930 (KLR) this Court held that:“What emerges from our jurisprudence in these cases are at least two principles: while exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, the regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that the exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation, especially in virgin areas or where an important constitutional value is at stake.”…41.Recently, this Court in the case of Kenya Revenue Authority & 2 others vs Doshi Iron Mongers Limited (Civil Appeal 66 of 2020) [2024] KECA 640 (KLR) held that:“However, in order for a legal provision relied upon to support the doctrine of exhaustion and constitutional avoidance to pass muster, it ought to meet certain tests, and these are that the reliefs prescribed in the alternative forums must be available, effective and sufficient and, as set out in the decision of the African Commission of Human and People’s Rights in the case of Dawda K. Jawara vs. Gambia ACmHPR 147/95- 149/96:‘A remedy is considered available if the Petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success and is found sufficient if it is capable of redressing the complaint [in its totality]...the Governments assertion of non-exhaustion of local remedies will therefore be looked at in this light ...a remedy is considered available only if the applicant can make use of it in the circumstances of his case.’”42.What becomes evident is that the doctrine of exhaustion is not cast in stone since there may be occasions when the invocation of the doctrine would not serve the values enshrined in the Constitution or law, in which case a party may be perfectly entitled to move to court for relief. See United Millers Limited vs Kenya Bureau of Standards & 5 others [2021] eKLR.” 34.In other words, the doctrine of exhaustion cannot be invoked to compel a party to pursue a remedy before a forum that lacks jurisdiction or where the statutory mechanism is ineffective, unavailable or incapable of granting appropriate relief. As emphasized above, courts retain jurisdiction in exceptional circumstances, particularly where the alternative mechanism is inadequate or legally untenable. 35.In this case, according to the learned Judge, following the determination by the Commission on 21st January 2019, EPZA filed an appeal before the Commission against that decision. At this point, in view of the stipulations of Section 14 of the National Land Commission Act and Regulation 30 of the National Land Commission (Review of Grants and Dispositions of Public Land) Regulations, it becomes apparent that, the Commission did not have jurisdiction to sit on appeal over its own decision. Yet, this notwithstanding, the trial court stayed the Appellant’s case and ordered that the appeal process pending before the Commission be exhausted. 36.Given that there was no statute or law that empowered the Commission to sit on appeal over its own decision, we find that, the trial judge wrongly authorized EPZA’s appeal to be concluded when the Commission clearly had no jurisdiction to entertain it. To have done so was tantamount to sanctioning an illegality and perpetuating proceedings before a body that was outside its statutory mandate. 37.This brings us to the next issue of whether the Appellants had failed to exhaust the dispute resolution framework contemplated by Section 133 of the Land Act in relation to appeals concerning awards of compensation by the Land Acquisition Tribunal. In addressing this issue, the learned Judge observed: 38.It has been further submitted by the 1st defendant that the grievances raised should be ventilated as contemplated under Section 133A of the Land Act. That thereafter appeal should lie to this court on issues of law. I have already observed from the plane that issues of compensation have come into play (see paragraph 9). Paragraph 8(b) alludes to appropriation of land belonging to the plaintiffs without payment of compensation and or sufficient consideration and ultimately the plaintiffs also pray as an alternative prayer relief that the transfer hearing without compensation/ consideration to the plaintiff is illegal now and void.” 39.The learned Judge then went on to find that by failing to lodge an appeal to the Land Acquisition Tribunal, the Appellants failed to exhaust the dispute resolution framework for resolution of claims for compensation.Section 133 C specifies:“1)The Tribunal has jurisdiction to hear and determine appeals from the decision of the Commission in matters relating to the process of compulsory acquisition of land.2.A person dissatisfied with the decision of the Commission may, thirty days apply to the Tribunal in the prescribed manner.3.Within sixty days after the filing of an application under this Part the Tribunal shall hear and determine the application…”Subsection 4 relates to extension of time to lodge a complaint while sub section 5 is concerned with awards of compensation. 40.Under Section 133 C (8) the Land Acquisition Tribunal may in matters relating to compulsory acquisition of land hear and determine a complaint before it arises under Article 23 (2) and 47 (3) of the Constitution, using the framework set out in the Fair Administrative Action Act or any other law. And then Section 133 D (1) provides:A party to an application to the Tribunal who is dissatisfied with the decision of the Tribunal may, in the prescribed time and manner appeal to the court…” 41.In effect, Sections 133C and D clearly set out the matters which the Land Acquisition Tribunal is entitled to hear and determine. In particular, it is mandated to hear and determine appeals that are concerned with the compulsory acquisition of land and disputes surrounding compensation awards. 42.In the instant case, it is not lost on us that in rendering its decision the Commission held that, “…EPZA is a public institution. They cannot take over private land without compensation. The title should be restricted until the parties agree and the committee and the sellers are satisfied.” Dissatisfied with the decision, the EPZA sought a review of the decision by the Commission. Yet, in view of Section 133C, it is the EPZA, and not the Appellants that failed to comply with the appeals process, and to file an appeal to the Land Acquisition Tribunal against the Commission’s decision. In concluding that it was the Appellants that failed to lodge an appeal to the Land Acquisition Tribunal, we find that the learned Judge misconstrued the law in so far as the appeals process was concerned, and in so doing, reached the wrong conclusion that the Appellants’ disregarded the doctrine of exhaustion when they lodged the suit before the trial court. 43.Further, it is of significance to observe that the dispute before the trial court was not a contest over quantum of compensation or an appeal arising from compensation proceedings. Rather, it concerned substantive allegations relating to ownership, legality of acquisition, validity of title, fraud, and unlawful registration of land. A review of the Plaint shows that the Appellants’ pleaded the “Particulars of Illegality/Fraud as:“a)Allocating the 1st Defendant land that belonged to the Plaintiffs contrary to the law governing management and transfer of land belonging to Group Ranches.b.Appropriation of land belonging to the Plaintiffs without payment of compensation and /or consideration by the 1st Defendant.c.Acquisition of private land by the Defendant which is a State/Public body without compensation and/or sufficient consideration.d.Failure to involve Group Ranch members in the decision to alienate Group Ranch land.e.Failure by the 1st Defendant to pay or pay proper Stamp duty on the registration and transfer of Title No Kwale/South Samburu/64.f.forcefully alienating private property by a Public /State body”. 44.As stated above, the Appellants’ suit concerned allegations of the fraudulent and unlawful acquisition and registration of the subject portion in the EPZA’s name, and failure by the EPZA to pay either consideration or compensation for their land, in view of the EPZA’s assertions that compensation was not due to the Appellants. 45.In the case of Bataniwalla & another vs Njuguna & another Civil Appeal No 240 of 2017 [2022] KECA 1343 (KLR) this Court observed:Additionally, the plaint also alludes to fraud on the part of the appellants, with particulars specifically pleaded. What is yet to be ascertained is whether or not fraud can be established. This is an issue that can only be determined at the trial when parties will have an opportunity to test the evidence adduced under cross examination...” 46.Similarly in this case, the Appellants were invoking the original jurisdiction of the Environment and Land Court to ascertain whether or not fraud was established, whether or not the Appellants agreed to gift EPZA with 200 acres of land for development, or whether the disputed portion was illegally and fraudulently transferred by unauthorized members of the Group Ranch to EPZA. In our view, these were not matters capable of being determined by the appellate and compensatory mechanisms contemplated by either the Commission or the Land Acquisition Tribunal, and the learned Judge was wrong in so concluding. 47.We think we have said enough to demonstrate that the trial court reached the wrong conclusion that the Appellants had failed to adhere to the doctrine of exhaustion by declining to allow conclusion of the EPZA’s appeal before the Commission and in failing to lodge an appeal before the Land Acquisition Tribunal under Section 133 C and D of the Land Act. If anything, it is evident that the continued lethargy on the part of the EPZA is what prompted the Appellants to seek an all-inclusive and comprehensive determination of the ownership over the disputed portion with the EPZA before the court. As a consequence, we find it necessary to interfere with the trial court’s decision. 48.In sum, the appeal is merited and is allowed with costs to the Appellants. We set aside the Ruling of the Environment and Land Court delivered on 21st October 2022, and remit the Appellants’ suit back for hearing and determination by another Judge of the Environment and Land Court other than Hon. Justice Dena.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 12TH DAY OF JUNE, 2026.A. K. MURGOR................................ JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb................................. JUDGE OF APPEALG. W. NGENYE-MACHARIA................................ JUDGE OF APPEALI certify that this is the true copy of the originalSigned DEPUTY REGISTRAR