https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5211

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KWALE** **MISC. APPLICATION NO. E014 OF 2025** **IN THE MATTER OF THE EXERCISE OF SUPERVISORY JURISDICTION UNDER ARTICLE 165 (6) AND (7) OF THE CONSTITUTION OVER PROCEEDINGS IN BОТH PRINCIPAL MAGISTRATES' COURT AT KWALE, LAND CASE NUMBER 339 OF 2009: ATHUMANI YUSUF HAJI VERSUS ISAIAH KIRINDI WAMBUGU MUTONYI AND PROCEEDINGS IN THE KADHI'S COURT AT KWALE SUCCESSION CAUSE NO. E168 OF 2021:** **IN THЕ МАТТER OF THE ESTATE OF ATHUMANI YUSUF HAJI (DECEASED)** **BETWEEN** **ENG. ISAIAH KIRINDI WAMBUGU MUTONYI……..APPLICANT** **-VERSUS** **МОНАМMED YUSUF MWALIM KILUNGU…1ST RESPONDENT** **JUMA H. KIVUGO……………………..…..…….2ND RESPONDENT** **MUSA A. MAKOROMA……………………...…..3RD RESPONDENT** **HASSAN A. NGENYA....................................4TH RESPONDENT** **FATUMA SAIDI MABRUKU………….……………5TH RESPONDENT** **RETAW HOLDINGS LIMITED……………………6TH RESPONDENT** **LAND REGISTRAR, KWALE COUNTY….……..7TH RESPONDENT** **RULING** 1. **Introduction** 2. The Honourable Court was called upon to make a determination over two ( 2 ) pleadings being – the Notice of Motion application dated 28th June 2025 filed by*ENG. ISAIAH KIRINDI WAMBUGU MUTONYI,* the Applicant herein. The second is a Notice of Preliminary Objection dated 14th October 2025 raised by *МОНАМMED YUSUF MWALIM KILUNGU, FATUMA SAIDI MABRUKU and RETAW HOLDINGS LIMITED,* the 1st, 5th and 6th Respondents herein respectively. The application notice of motion was filed pursuant to the provisions of Article 2 (4), 29, 30 and 165 (6) and (7) of the Constitution, Order 22 Rules 31 to 34 and Order 51 Rules 1-3 of the Civil Procedure Rules, 2010. 3. The application was opposed by a notice of preliminary objection 4. Upon service, the 5th and 6th Respondents also opposed the application vide a Replying Affidavits both dated 5th December, 2025. 5. **The case by the Applicant** 6. The applicant sought for the following orders before court; - 7. ***Spent.*** 8. ***Spent.*** 9. ***That this honourable court be pleased to call for the record of the proceedings before:-*** 1. ***First, the Land Dispute case number 004 of 2009; Athumani Yusuf Haji – Versus - Isaiah Kirindi Wambugu Mutonyi.*** 2. ***Secondly, the Kwale Principal Magistrates Court Land Case Number 36 of 2009 - Athumani Yusuf Haji Versus Isaiah Kirindi Wambugu Mutonyi*** 3. ***Thirdly, Kadhis Court Kwale Succession Cause Number E168 of 2021; in the matter of the estate of Athumani Yusuf Haji.*** ***For purposes of determining the legality of the proceedings in each of them in which the subject matter was Kwale/Funzi Island/96 registered in the name of the applicant on 27th November, 1992 but the registration as proprietor was purportedly cancelled pursuant to a Judgement/award of the Kwale Land Disputes Tribunal and the title reverted to the Vendor - Athumani Yusuf Haji in 2009 and upon his death in the year 2016 was purportedly inherited by the 5th Respondent who purportedly sold it to the 6th Respondent in July, 2021 thereby completing a process of divestment of title through a callus abuse of the court process.*** 1. ***That this Honourable Court be pleased to supervise the said proceedings in the three courts, determine the legality of each proceeding and set aside the orders made and revert the title to the applicant by setting aside all entries made in the land register after 27th November, 1992.*** 2. ***That this Honourable Court be pleased to declare that the proceedings instituted in land dispute case number 004 of 2009; Athumani Yusuf Haji - Versus - Isaiah Kirindi Wambugu Mutonyi are fraudulent, null and void for having been instituted in the name of Athumani Yusuf Haji the vendor of the said Kwale/Funzi Island/96 without his knowledge or consent.*** 3. ***That this Honourable Court be pleased to declare that the proceedings instituted in Kwale Principal Magistrates Court Land Case Number 36 of 2009 Athumani Yusuf Haji – Versus - Isaiah Kirindi Wambugu Mutonyi are fraudulent, null and void for having been instituted in the name of Athumani Yusuf Haji the vendor of the said Kwale/Funzi Island/96 without his knowledge or consent.*** 4. ***That this Honourable Court be pleased to declare that the proceedings instituted in Kwale Succession Cause Number E168 of 2021; in the matter of the estate of Athumani Yusuf Haji are fraudulent, null and void for having been instituted in the name of Athumani Yusuf Haji the Vendor of the said Kwale/Funzi Island/96 without his knowledge or consent.*** 5. ***That this Honourable Court be pleased to restrain the 6th Respondent whether by itself or servants from entering into or being on Kwale/Funzi Island/96 pending the hearing and determination of the suit.*** 6. ***That this Honourable Court be pleased to restrain the 6th Respondent from selling, charging and/or alienating the said Kwale/Funzi Island/96 pending the hearing and determination of this suit.*** 7. ***That this Honourable Court be pleased to restrain the 6th Respondent from selling, charging and/or alienating the said Kwale/Funzi Island/96 pending the hearing and determination of this suit.*** 8. ***That this Honourable Court be pleased to declare that the 7th Respondent has contravened his statutory duties under Sections 9 to 12 of the Land Registration Act 2012.*** 9. ***That this Honourable Court be pleased to declare that the predecessor of the 7th Respondent contravened his statutory duties under sections 7 and 8 of the repealed Registered Land Act.*** 10. ***That this Honourable Court be pleased to declare that the applicant is the registered proprietor of Kwale/Funzi Island/96 and that all entries in the register of the same made since 27th November, 1992 are null and void and are for expunging from the same.*** 11. ***That this Honourable Court be pleased to issue a permanent injunction restraining the 6th Respondent whether by itself or servants from entering into, being on or in any way dealing with Kwale/Funzi Island/96.*** 12. ***That costs of this application be provided for.*** 13. The application was premised on grounds, testimonial facts and the averments made out by a set of three ( 3 ) affidavits separately sworn by MAAMUNI HAJI TUNDA, ISAAC GATHUNGU WANJOHI and lastly one by MOHAMED BAKARI. 14. **The 1st Supporting Affidavit sworn Mr. Maamuni Haji Tunda** 15. Mr. Maamuni Haji Tunda swore a 64 Paragraphed Supporting Affidavit dated 28th June, 2025 together with annextures marked as “MHT) annexed thereto. 16. He was born in Funzi Island and had many relatives there. He had always visited Funzi Island often. 17. The 1st Respondent was a son of his first Cousin, Yusuf Mwalim while the 2nd Respondent was a retired School teacher. He did not know whether he served as a member of Kwale Land Dispute Tribunal. 18. The 3rd Respondent was a member of Nyumba Kumbi in Msambweni Location. The 4th Respondent was a retired school teacher who resided at Msambweni and assisted the Chief and the DO in matters concerning administration of the location and division. 19. The 5th Respondent a farmer and businesswoman who sild fried or cooked fish in Funzi sub – location. She was neither his relative nor that of his late uncle, Athumani Yusuf Haji whose heir she had falsely claimed to be and purported to inherit a property which his late uncle sold to the Applicant in the year 1992. 20. The 6th Respondent was a private limited liability company which was incorporated under the repealed Companies Act Cap. 486 of the Laws of Kenya on 16th December, 2013. 21. The 1st to 6th Respondents were fraudsters who had been involved in a scheme to deprive the applicant of the suit property which belonged to his late uncle Athumani Yusuf Haji in the year 1992. 22. He knew Eng. Isaac Gathungu Wanjohi and Engineer Isaiah Kirindi Wambugu Mutonyi. The latter was the Applicant herein, 23. That contrary to the false entries made showing that the applicants title had been cancelled, he was the owner of the suit property. 24. The Applicant bought the two parcels on Funzi Island in the year 1992 from the deponent’s father and uncle. Eng. Wanjohi bought parcel Kwale/Funzi Island /110 while Eng. Mutonyi purchased Kwale/Funzi Island/96 from his uncle. 25. The two persons had remained in occupation of the suit properties from the time they were purchased. 26. From the land registry records, there were fraudulent activities on the parcels showing that the applicant was registered as a proprietor of the parcel on 27th November, 1992 but his name had been cancelled by the 7th Respondent 27. The deponent stated that he had played a key role in sale of the properties to the Applicant. 28. A grandson of his uncle, Mohammed Yusuf Mwalim alias Kilungu, served as imposter in fraudulent proceedings filed in the Kwale Land Disputes Tribunal with a view to disposing the Applicant of his land and purported to be him who filed a case against the Applicant. 29. During the last years of his life, his uncle, Athumani Yusuf Haji, who was single treated him as his son and he used to ran his errands for him. He served as his confidant and everyone in his extended family including the 1st Respondent knew that. 30. The 1st Respondent led a polygamous marriage and lavish life. He instated fraudulent proceedings against his uncle at the Kwale Courts. There was no Power of Attorney given to the 1st Respondent in the Land Disputes Tribunal and the Principal Magistrates’ Court at Kwale files. 31. The 2nd and 4th Respondents who were purported members of Kwale Land Disputes Tribunal both the 1st Respondent and him, and there was no way they could mistake the 1st Respondent for him. 32. According to the abstract of title, the 1st Respondent obtained a fraudulent order which was purportedly used to cancel the registration of the Applicant as proprietor and replace him with that of his uncle on 11th December, 2009 when he was alife and without his knowledge. 33. He had seen the fraudulent proceedings which were instituted in the Kadhi’s Court at Kwale by the 5th Respondent in Succession Cause Number E186 of 2021. 34. The 5th Respondent was not the daughter of his late uncle and according to his customs. He was the one who should have inherited it. 35. From the abstract of the title, the 5th Respondent was registered as the proprietor on 30th April, 2021 and on 8th July, 2021 purported to sell it to the 6th Respondent. 36. He was advised by his Advocates on record that:- 37. It was a habit of the Land Registrars including the Chief Land registrar to issue fraudulent parallel titles to assist other people to steal land. 38. The 5th & 6th Respondents were holders of fraudulent titles and the practice of the Court was to nullify them. 39. This Honourable Court had jurisdiction to supervise proceedings of the sub – ordinate Court and nullify them and give such direction as would serve the ends of justice, 40. In this case, the ends of justice would be served bt cancelling all the fraudulent entries in the land register and leave the Applicant as the proprietor. 41. It was the practice of Court to recommend to the Director of Public Prosecution to cause to be investigated under Article 157 of the Constitution, whether offences had been committed by persons before the Court and prosecution of offenders to take place. 42. The Applicant was an investor in real Estate in the County of Kwale. He owned a number of parcels of land both in Funzi Island and the mainland. 43. Sometimes between 1990 and 1991 he visited Funzi Island and indicated to some acquaintances that he was looking for and to buy, He was friend t a politician in Msambweni known as Councillor Nasoro Juma Mwadzikomba and who served as an agent for looking for people wanting to buy parcels of land. 44. The Deponent’s father – haji Yusuf - and uncle decided to sell their parcel of land in Funzi Island and communicated their intention to Councillor Nasoro Juma. The Councillor informed them that Engineer Wanjohi was interested in the parcels. 45. They all met and undertook the sale transaction process in earnest. However, on conducting search they found there had been some interference on the registration entries. The parcels had been registered in the names of the 5th and 6th Respondents. 46. The 6th Respondent had never taken possession of the suit land. 47. There was need to have the proceedings of the Kadhi’ Court and Principal Magistrate Court ordering Athumani Yusuf Haji as the owners of the land in 2009 and the 5th Respondent in 2021 knowing very well the land had been sold to Engineer Mutonyi be brought before this Court. 48. The deponent disputes the three cases listed at prayer 3 of the application and states that the same were all forged as his late uncle never participated in the said proceedings. 49. **The 2nd Supporting Affidavit sworn by Engineer Isaac Gathungu Wanjohi.** 50. Engineer Isaac Gathungu Wanjohi, in his affidavit dated 28th June, 2025 in support of the application stated as follows that:- 51. The suit property was amongst several properties he invested in while in Kwale County. 52. In year 1992 he was shown the suit property by the late Counsel Nasoro who introduced him to his two brothers Haji Yusuf and Athumani Yusuf. 53. There was also one Maamuni Tunda who acted as an agent and negotiated the purchase price to the suit property on behalf of the two brothers who were the vendors. 54. The purchase price was agreed upon and the sale effected. 55. Later in the year 2021 he learnt that there was an attempt to open the bargain of the suit property. 56. The bank details were given and the deponent paid the remaining balance of the purchase price being a sum of Kenya Shillings Seventy Thousand (Kshs. 70,000/-) to one Yusuf Haji Maalim a nephew to both vendors. 57. **The 3rd Affidavit by Mohamed Bakari Musa.** 58. In his affidavit in support of the application averred as follows that:- 59. the applicant had been known to him for more than 30 years. 60. At paragraph 9 of the affidavit he averred that he had been appointed as a caretaker of the suit property; and 61. The land was owned by the applicants herein. 62. The suit property had not been interfered with until the year 2021 when he met some surveyors on the land. 63. The said surveyors informed him that they were there to undertake some survey work. 64. The 6th Respondent was not in possession of the suit property. 65. **The responses by the 1st Defendant/Respondent’s** 66. The application was opposed through a 59 Paragraphed Replying affidavit dated 5th December 2025 sworn by Mohamed Yusuf Haji alias Mohamed Yusuf Haji Mwalim Kilungu who averred as follows that:- 67. He was the 1st Respondent herein and was well conversant with the matters in issue herein and therefore competent to swear this Affidavit. 68. He had had the application and the supporting affidavit read to him. Its contents were vehemently opposed. 69. The contents of the application and the supporting affidavit thereto were false and geared towards dispossessing the 6th Respondent of the suit property Kwale/Funzi Island/96. 70. The deponent to the affidavit one Mohamed Bakari Musa passed away on the 24th June, 2025. Attached and marked as “MYM – 2 “ was a copy of the Certificate of Death. 71. Therefore, it was impossible for the deceased to have sworn the affidavit on 28th June, 2025. It was therefore evident the Applicant had procured a forgery, committed perjury and knowingly uttered a false document in a desperate attempt to mislead this Honourable Court. Thus, the court was urged to expunge the affidavit sworn by the said party from its record. 72. This single fact demonstrated the Applicant’s mala fides and lack of integrity and on this ground alone the entire application should be struck out with costs and the matter referred to criminal investigation. 73. It was further averred that Mahamuni Haji Tunda referred to as Maamuni Haji Tunda in his supporting affidavit was approached by the deponent and was surprised to learn that he was a litigant in court. 74. The affidavit was thus not sworn by him. 75. At Paragraph 13, the deponent stated that Mahamuni Haji Tunda after learning of the contents of the affidavit allegedly filed by him yet again filed a further affidavit clarifying the true state of affairs wherein he affirmed that the suit property belonged to his late uncle and grandfather Athumani Yusuf who died intestate and the property was inherited by the 5th Respondent as per Islamic law before being sold to the 6th Respondent. 76. It was thus averred that the Applicant took advantage of his uncle Mahamuni Haji Tunda’s illiteracy to procure his signature on a document whose contents were untrue and were not read back to him. 77. The court was thus urged to expunge the first supporting affidavit sworn by the said Mahamuni Haji Tuda. 78. The deponent also vehemently opposed the contents of the affidavit of Isaac Gathungu Wanjohi. It was stated that the proceedings in Msambweni Land Disputes Tribunal Case No 04 of 2009 and Kwale PM court land case no 39 of 2009 were not fraudulent and the same were known to the deponent and his entire family and the history of the suit property. 79. It was deposed that the applicant and Isaiah Kirindi were indeed interested in the suit property at some point but there was no consensus between them and the deponent’s grandparents on the price. 80. Mahamuni Haji Tunda was an agent and go between to the parties but the purchase price was never agreed upon nor paid and thus the transaction never took place. That this evidence was crucial during hearing of the matter at the tribunal. 81. The deponent stated that his family had always been in possession and occupation of the suit property and the Applicants had not availed any document indicating the alleged purchase. 82. No sale agreement had been availed by them. It was stated that the suit was an affront to the provisions of Section 3[3] of the Law of Contract Act, Cap. 23 on contracts being in writing. 83. It did not make sense how the suit property was purchased in the year 1992 and the balance to the purchase price of a sum of Kenya Shillings Seventy Thousand (Kshs. 70, 000/=) was paid in the year 2024. The deponent stated that the 5th Respondent rightfully inherited the suit property vide Kadhis Court Case No E168 of 2021. 84. The deponent maintained that the suit property was family property and thus the Applicant had no locus to institute any suit as he was not a beneficiary to the estate of the deceased. 85. The court was asked to dismiss the application the same having been made in bad faith and without merit. 86. **The responses by the 5th Respondent** 87. The 5th Respondent, Fatuma Saidi Maburuki, filed a Replying Affidavit dated 5th December, 2025 in response to the application herein. She averred as follows that:- 88. All the facts raised in the application and the affidavit in its support were falsified and with the intention of dispossessing the 6th Respondent off the suit property. 89. Further that she had read the Replying Affidavit by the 1st Respondent and concurred with the averments therein. 90. It was stated that in June, 2021 she had sold the suit property to the 6th Respondent who had approached her with interest to purchase the property. That an agreement was prepared and immediately the 6th Respondent took possession and occupation of the suit property after signing of transfer forms. The 5th Respondent sought that the application be dismissed with costs. 91. **The Responses by the 6th Respondents** 92. Similarly, in opposition of the application herein, the 6th Respondent through its director Ali Saleh Haji filed a Replying Affidavit. He averred as follows that:- 93. He had contacted the 5th Respondent on behalf of the company for purchase of the suit property. 94. All the legal formalities associated with purchase of land were complied with including signing of an agreement and transfer forms. 95. The company then took possession of the suit property. 96. The deponent stated that the instant application emanates from the decisions in Land Dispute Case No. 004 of 2009 and Kwale Principal Magistrates' Court Land Case Number 36 of 2009 which were determined 16 years ago thus the same is contrary to Section 4(4) of the Limitation of Actions Act and the doctrine of finality and exhaustion. 97. The Application against the 2nd, 3rd and 4th Respondents is therefore unsustainable in law as it offends Section 8 of the Judicature Act and Article 160(5) of the Constitution as the judicial officers and/or officials of the Land Dispute Tribunal have been sued in their names and/or personal capacity while the said Application arises from the performance of their judicial functions. As such the said Application should be struck out against them. 98. It was lastly deposed that the application is made in bad faith and lacks merit as it does not meet the threshold of the orders sought. 99. The Applicant had failed to adduce sufficient reasons to persuade this Honourable Court to exercise its discretion in his favour. 100. The court was thus urged to dismiss the application in the interest of Justice that the said Application be dismissed with costs. 101. **The Preliminary Objection raised by the 1st, 5th & 6th Respondents herein** 102. The 1st, 5th and 6th Respondents raised a Preliminary Objection dated 14th October, 2025 on the Application herein on the grounds that:- 103. The supervisory jurisdiction of the High Court over a sub - ordinate court's proceedings, as provided under Article 165 (6) and (7) of the Kenyan Constitution, is typically invoked through an application for Judicial Review or Constitutional Petition. 104. Prima facie, the grounds cited in the Application were issues of contested facts which were grounds of appeal and not supervisory jurisdiction of the High Court. 105. A suit was commenced by a Plaint, Petition, or Originating Summons. A miscellaneous Application was for seeking interim, procedural, or ancillary relief in relation to a primary, existing, or intended suit/action and could not thus stand as the main suit (the originating process) for pursuing a substantive claim. Thus the "naked" Application herein was fatally defective as it was not "rooted in a suit" and should be struck out with costs. 106. The Application herein mainly emanated from the decisions in “***Land Dispute Case No. 004 of 2009 and Kwale Principal Magistrates' Court Land Case Number 36 of 2009”*** which were determined 16 years ago thus it was contrary to Section 4 (4) of the Limitation of Actions Act, Cap. 22 and the doctrine of finality and exhaustion. 107. The Application against the 2nd, 3rd and 4th Respondents was unsustainable in law as it offended the provision of Section 8 of the Judicature Act and Article 160 (5) of the Constitution as the Judicial Officers and/or Officials of the Land Dispute Tribunal had been sued in their names and/or personal capacity while the Application herein arose from the performance of their judicial functions. As such the said Applications should be struck out against them. 108. This suit herein was bad in law and untenable and an abuse of the due process of this Honourable Court and by reason thereof it should be struck out with costs. 109. **Submissions** 110. On 16th October, 2025 while all the parties were present in Court, direction were granted to have the application and the Preliminary Objection to be dealt with simultaneously. 111. Nonetheless, by the time of preparing this ruling only the 1st 5th and 6th Respondents had complied with the said directions. The court will nevertheless proceed to render its verdict on its own merit. 112. **The Written Submissions by the 1st 5th and 6th Respondents** 113. The 1st 5th and 6th Respondents filed submissions dated 5th December 2025 through the Law firm of Messrs. A O Hamza & Co Advocates. M/s. Hamid Advocate commenced her submissions by providing a brief background of the matter. 114. According to the Learned Counsel, the application by the Applicant was a scandalous, vexatious and egregious abuse of the judicial process. It was full of non – disclosure of material facts and falsehold and forged evidence. It was made to attack decision that was made sixteen ( 16 ) years ago. 115. Briefly, in early 1990, the Applicant and his Associate one Isaac Gathungu Wanjohi expressed interest in purchasing the suit property from its then registered owner, the late Athumani Yusf Haji. However, as stated by Mahamuni Haji Tuda, a crucial witness for the Applicant, the parties failed to agree on the purchase price and the sale never materialise. 116. Despite of the failed transaction, the Applicant proceeded to fraudulently procure a title in his name. Aggrieved, the late Athumani Yusuf Haji, in his lifetime, personally instituted proceedings in 2009 before the Kwale Principal Magistrate’s Court – Land Case No. 39 of 2009. Subsequently, the matter was referred to the Msambweni and Disputes Tribunal – Case No. 04 of 2009. The Applicant was duly served but failed to participate. After the hearing the Tribunal arrived a decision in favour of Mr. Athumani Yusuf Haji. It ordered that the title be reverted to him. There was no appeal preferred against the said decision. 117. Upon his demise, the Estate of the deceased and in consonance with the Islamic traditions consented that the land be inherited by the 5th Respondents. It was lawfully effected through Khadhi’s Court Succession Cause No. E168 of 2021 . Subsequently, in June, 2021, the 5th Respondent was lawfully registered proprietor, sold it to the 6th Respondent. 118. However, according to the Learned Counsel, it after the lapse of sixteen ( 16 ) years that the Applicants filed this suit to challenge the titles issued to the Respondents. They filed a Supporting Affidavit which was sworn by a dead person. 119. The Learned Counsel informed Court that the issues before it related to the Originating Notice of Motion application dated 28th June, 2025, the responses through a 56 Paragraphed Replying Affidavit dated 5th December, 2025 and the Preliminary Objection dated 14th October, 2025 by the 1st, 5th and 6th Respondents herein dated application by the Applicant. On analysis of issues, Learned Counsel submitted on whether the Preliminary Objection was merited by referring to the provisions of Section 4 (4) of the Limitation of Actions Act, Cap. 22 on limitation of time to institute disputes after Judgement has been rendered on the subject matter. It was submitted that “***the doctrine of laches”*** and the statute of limitation act are not mere technicalities but are fundamental to the principle of finality in litigation. (See the case of:- ***“M’ikiara M’rinkanya & Another – Versus – Gilbert Kabeere M’mbijiwe (2007) KECA 115 (KLR)”.*** The Court held that:- ***“For the forgoing reasons, the Notice of Motion dated 15th November, 2001 and filed in Court on 16th November, 2001 for warrant of eviction was, for all intents and purposes, an action upon a Judgement to recover possession of land. The proceedings to recover land having filed nearly 18 years after the final Judgement of the Court of Appeal were statute - barred”*** 1. That the Applicant had offered no explanation for his 16-year delay in filing the application and the suit was thus incurably time barred and must be struck out. 2. It was further submitted that the Applicant approached court vide an originating notice of motion filed as a Miscellaneous application. That this motion never sought interim or procedural relief pending filing of a substantive suit but it seeks final disportive orders that would determine the rights of the parties herein over the suit property. Counsel submitted that from the civil procedure any substantive suit ought to be commenced by a recognised originating process and that a miscellaneous application is not one of them. Reference was made in the case of: “***Golden Centuary Limited - Versus - Jossef [Miscellaneous Application E224 of 2024] [2025] KEELC 4397[KLR]”*** 3. It was submitted that the Applicant has failed to exhaust clear, suitable and effective statutory remedies available to him. That by circumventing filing an appeal, the Applicant is improperly asking this court to act as a court of first instance on matters that have been conclusively determined. That the court thus lacked jurisdiction to handle the dispute. It was further submitted that the Applicant had sued the 2nd 3rd and 4th Respondents in their personal capacities and they were officials of the Msambweni Lands Dispute Tribunal, that this action is an affront to the constitutional doctrine of judicial immunity. This was contrary to the provision of Section 6 of the Judicature Act, Cap. 8 which extends this immunity to officers of a Court and other persons acting judicially. It provides as follows:- **“No Judge or Magistrate, and no other person acting judicially, shall be liable to be sued in a civil court for an act done or ordered by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction, provided he, at the time, in good faith believed himself to have jurisdiction to do or order the act complained of; and no officer of a court or other person bound to execute the lawful warrants, orders or other process of a Judge or such person shall be liable to be sued in any court for the execution of warrant, order or process which he would have been bound to execute if within the jurisdiction of the person issuing it”** 1. The rationale for the immunity was not to place judicial officer above the law, but to ensure that they could discharge their duties without fear or favour, free from the chilling effect of vexatious litigation. Ideally, the attack should be on the decision and not the decision maker through an appeal. 2. To buttress on this legal preposition, the Learned Counsel place reliance was placed in the case of:- *“****Bellevue Development Company Limited - Versus - Gikonyo & 3 Others [Petition 42 of 2018] [2020] KESC 43[KLR]”****.* Whereby the Supreme Court pronounced itself as follows:- ***72. For avoidance of doubt, the protection or immunity of a Judge also goes into administrative acts, As in Stump, in GBM Kariuki – Versus – Hon. Fred Kwasi Apaloo (Supra), it was held that:-*** ***“The Respondent, a Judge, holding the administrative office of Chief Justice while executing his judicial duties in Court or in execution of his administrative duties within the jurisdiction, enjoys absolute privilege from being sued civilly for his expressions either in writing or verbally. This is so under the common law and under the provisions of Section 6 of the Judicature Act. Cap. 8.*** ***73. We agree and would only conclude by stating that the immunity accorded to a Judge is absolute in the meaning attributed to the expression by Article 160 ( 5 ) of the Constitution and as analysis in this Judgement……”*** 1. Thus, according to the Learned Counsel, the Applicant never pleaded that the 2nd, 3rd and 4th Respondents acted in bad faith, maliciously, or outside the bounds of their jurisdiction, With regard to the application. He had simply named them as parties to a suit challenging the outcome of their judicial determination. That was vexatious and intended to harass and intimidate the judicial officers. 2. The Learned Counsel averred that the Applicant had approached it with soiled hands as he had committed perjury and forgery and did not therefore have clean hands to be given any opportunity to be heard as per the equity maxim of he who comes to equity must come with clean hands. They cited the case of ***“MacFoy – Versus – United Africa Co. Limited (1961) 3 All ER 1169”*** which held that:- ***“If an act is void, then it is in law a nullity. It is not only bad incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado….And every proceeding which is found on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”*** 1. The Learned Counsel asserted that there was no sale of the land to the Applicant as alleged. There was no proof of this in accordance to the provision of Section 3 ( 3 ) of the Law of Contract, Cap. 23 and Section 6 of the Land Control Act, Cap. 302. For instance the sale agreement duly executed by parties nor Letter of Consent from the Land Control Board. 2. That the Applicant should not be allowed to defraud the Respondents. It was also submitted that the Applicant had failed to produce two most fundamental documents being a written land sale agreement and a land control board consent that would enable him to claim any rights over the suit property. the court was urged to issue the following orders:- - 3. That the preliminary objection dated 14th October, 2025 be allowed with costs 4. That the Applicants originating notice of motion dated 28th June, 2025 be struck out and/or dismissed with costs 5. That the costs of this application and the preliminary objection be awarded to the 1st 5th and 6th Respondents on a full indemnity basis to be borne by the applicant. 6. **Analysis and Determination** 7. I have keenly considered the objection raised through the Notice of Preliminary Objection dated 14th October, 2025 by the 1st 5th and 6th Respondents herein and the Notice of Motion application dated 28th June, 2025, the detailed written submissions, the myriad authorities cited, the relevant provisions of the Constitution of Kenya, 2010 and statutes. 8. In order to reach at an informed, reasonable and fair decision on the matter, the Honorable Court wishes to be guided by the following four ( 4 ) salient issues for its determination. These are: - 9. ***Whether the objection raised by the Defendant through the Notice of Preliminary Objection dated 14th October, 2025 meets the threshold founded in Law and precedents.*** 10. ***Whether the objection raised by the Defendant through the Notice of Preliminary Objection dated 14th October, 2025 is meritorious.*** 11. ***Which orders should issue in relation to the notice of motion dated 28th June, 2025.*** 12. ***Who will bear the Costs of the Objection and the notice of motion.*** ***ISSUE No a]. Whether the objection raised by the Defendant through the Notice of Preliminary Objection dated 14th October, 2025 meets the threshold founded in Law and precedents.*** 1. Under this Sub – heading, the Honourable Court shall be critically examining the meaning, nature and the scope of the concept of **“Preliminary Objection”.** According to the Black Law Dictionary a Preliminary Objection is defined as being:- **"In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”** 1. The above legal preposition has been made in the now “*Classicus Locus”* case of:- ***“Mukisa Biscuits Manufacturing Co. Limited – Versus - West End Distributors Limited (1969) E.A. 696”*** where the court held that:- ***"The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurer it 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 has to be ascertained or if what is sought in the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop***” 1. Sir Charles Newbold, JA in the same case stated that: - ***'A Preliminary Objection is in the nature of what used to be a demurrer. It 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. The improper raising of points by way of Preliminary Objection does not nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.'*** 1. A **“demurrer*”*** according to the Black’s Law Dictionary has its roots in French law *‘*demorer’ and Latin *‘*demorari*’* and is defined as follows: ***“A pleading stating that although the facts alleged in a complaint may be true, they are insufficient for the Plaintiff to state a claim for relief and for the Defendant.”*** 1. I have further relied on the decision of “***Attorney General & Another – Versus - Andrew Mwaura Githinji & another [2016] eKLR****:* - as it explicitly extrapolates in a more concise and surgical precision what tantamount to the scope, nature and meaning of a Preliminary Objection “*inter alia”:* - 2. ***A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.*** 3. ***A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and*** 4. ***The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute.*** 5. Similarly, I am guided by the decisions from the Tanzanian Court of Appeal sitting in Dar es Salaam, in “[***Karata Ernest & others – Versus - Attorney General***](https://tanzlii.org/akn/tz/judgment/tzca/2010/30/eng%402010-12-29)***(Civil Revision No 10 of 2020) [2010] TZCA 30 (29 December 2010)”,*** (Luanda, JA, Ramadhani, CJ, Rutakangwa, JJA), put the issue of preliminary objections in a more exhaustive manner as follows: - ***“At the outset we showed that it is trite law that a point of preliminary objection cannot be raised if any fact has to be ascertained in the course of deciding it. It only "consists o f a point of law which has been pleaded, or which arises by dear implication out of the pleading obvious examples include: objection to the jurisdiction of the court; a plea of limitation; when the court has been wrongly moved either by non-citation or wrong citation of the enabling provisions of the law; where an appeal is lodged when there is no right of appeal; where an appeal is instituted without a valid notice of appeal or without leave or a certificate where one is statutorily required; where the appeal is supported by a patently incurably defective copy of the decree appealed from; etc. All these are clear pure points of law. All the same, where a taken point of objection is premised on issues of mixed facts and law that point does not deserve consideration at all as a preliminary point of objection. It ought to be argued in the "normal manner" when deliberating on the merits or otherwise of the concerned legal proceedings.*** 1. Additionally, I am guided by the Supreme Court case in “***Independent Electoral & Boundaries Commission – Versus - Jane Cheperenger & 2 Others [2015] eKLR”*** made the following observation as relates to Preliminary Objections: ***“…The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper fora party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.”*** 1. Further, in the case of:- “***Dismas Wambola – Versus - Cabinet Secretary, Treasury & 5 others (2017) eKLR”****,* the court stated as follows:- ***“A preliminary objection must first, raise a point of law based on ascertained facts and not on evidence. Secondly, if the objection is sustained, that should dispose of the matter. A preliminary objection is in the nature of a legal objection not based on the merits or facts of the case, but must be on pure points of law. It may be noted that preliminary objections are narrow in scope and cannot raise substantive issues raised in the pleadings that may have to be determined by the court after perusal of evidence….”*** 1. Finally, the Court of Appeal in ***“Oraro – Versus – Mbaja (2005) 1KLR 141, Ojwang J*** ( as he then was) stated:***-*** ***“A Preliminary objection correctly understood is now identified as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event to be proved through the process of evidence”*** 1. In view of the above, it is clear that a preliminary objection should raise pure points of law and which are argued on the assumption that all facts are correct. It is trite law that a preliminary objection can be brought at any time at least before the final conclusion of the case. Ideally, all facts remaining constant, it should be filed at the earliest opportunity of the subsistence of a case, in order to pave way for the smooth management and determination of the main dispute in a matter. 2. The 1st, 5th and 6th Respondents have raised two ( 2 ) broad issues. Firstly, on the jurisdiction of this Court to hear and determine this case and secondly the suit by the Applicant was statutory barred having been filed after the lapse of sixteen (16) years from the time the action accrued contrary to the provision of the Limitation of Action Act, Cap. 22 of the Laws of Kenya. Certainly, these are issues of pure law making the objection sustainable. I find that the filed preliminary objection by the 1st, 5th and 6th Respondents herein was properly brought before the court. ***ISSUE No. b). Whether the objection raised by the Defendant through the Notice of Preliminary Objection dated 14th October, 2025 is meritorious.*** 1. Under this Sub – heading the Court will endeavor to find whether the objection has any merit. The 1st, 5th and 6th Respondents have raised the issue of jurisdiction and limitation of action. The point of law the 1st, 5th and 6th Respondents argue is that this court does not have jurisdiction to determine the instant suit and the suit is time barred contrary to the provision of Section 4 of the Limitation of Actions Act, Cap. 22. 2. I seek refugee from the case of “***Owners of the Motor Vessel M.V Lillian S. – Versus - Caltex Oil (K) Limited (1989) KLR 1”*** the court held that Jurisdiction was everything. Without jurisdiction, the Court has to down its tools. 3. The jurisdiction of the Environment & Land Court Act, No. 19 of 2011 court flows from the provision of Article 162 (2)(b) of the Constitution of Kenya 2010. The provision of Section 13 (2) of the ELC Act vests this court with wide powers over any dispute relating to land it provides that:- **In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes—** **a. relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;** **b. relating to compulsory acquisition of land;** **c. relating to land administration and management;** **d. relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and** **e. any other dispute relating to environment and land** 1. The jurisdiction of this court to hear and determine this suit flows from the Constitution and the law. The jurisdiction of court is not conferred upon it by parties nor can the court confer upon itself jurisdiction. The Supreme Court in the case of *“****Samuel Kamau Macharia and Another – Versus - Kenya Commercial Bank Limited & 2 others (2012) eKLR”***held that:- ***"A Court’s jurisdiction flows from either the constitution of legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second Respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.”*** 1. The 1st, 5th and 6th Respondents further submitted that the suit is founded on contract and in accordance with section 4(1) of the Limitation of Actions Act, Cap. 22 it ought to have been instituted within a period of six years from the date when the cause of action accrued. The said section provides as follows: **Section 4(1) The following actions may not be brought after the end of six years from the date on which the cause of action accrued:** **a) Actions founded on contract** 1. The purpose of the Law of Limitation was stated in the case of *“****Mehta – Versus - Shah (1965) E.A 321”***, as follows:- ***"The object of any limitation enactment is to prevent a Plaintiff from prosecuting stale claims on the one hand, and on the other hand protect a Defendant after he has lost evidence for his defence from being disturbed after a long lapse of time. The effect of a limitation enactment is to remove remedies irrespective of the merits of the particular case.”*** 1. In the case of:- *“****Gathoni – Versus - Kenya Co-operative Creameries Limited (1982) KLR 104”,*** the Court of Appeal held as follows:- ***"…The Law of Limitation of Actions is intended to protect Defendants against unreasonable delay in the bringing of suits against them. The statute expects the intending Plaintiff to exercise reasonable diligence and to take reasonable steps in his own interest.”*** 1. A suit barred by limitation is a claim barred by law, hence by operation of law, the Court cannot grant the relief sought. In the case of “***Iga – Versus - Makerere University (1972) EA”****,* the Court had this to say on the Law of Limitation:- ***"A Plaint which is barred by limitation is a Plaint barred by law. Reading these Provisions together it seems clear that unless the Applicant in this case had put himself within the limitation period by showing grounds upon which he could claim exemption, the Court shall reject his claim. The Limitations Act does not extinguish a suit or action itself, but operates to bar the claim or remedy sought for and when a suit is time barred the Court cannot grant the remedy or relief sought.”*** The provision of Section 4 of the Limitation of Actions Act, Cap. 22 provides that an action based on contract may not be brought after the lapse of 6 years from the date the right of action accrued to the Plaintiffs/Respondents. 1. I wish to refer to paragraph 15 of the affidavit in support of the application subject of this ruling and which is dated 28th June, 2025. The Supporting Affidavit was sworn by Isaac Gathungu Wanjohi who averred as follows:- ***“that I and the Applicant were to buy the two parcels of land as follows; Kshs 250,000 for Kwale/Funzi Island/96 and Kshs 75,000/- for Kwale/Funzi Island/110. The total was Kshs 325,000 and a part of the purchase price was paid to Nasoro and Maamuni on behalf of the vendors”*** 1. I have keenly gone through the 15 prayers sought in the application, the Applicant calls for proceedings in several suits before the, Land Disputes Tribunal, Kadhis Court and the Principal Magistrates court in Kwale all which led to registration of the suit property in the 6th Respondents name. According to the Applicant, the transfer and subsequent registrations are fraudulent and have deprive him off his right to ownership and use of property. 2. However, I note that despite of the allegations of fraud having been made, the same were never particularised and hence the court was left to figure out how the said fraud might have occurred. The Black’s Law Dictionary, 9th Edition defines “**fraud”** as:- 3. **“Fraud consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. As distinguished from negligence, it is always positive, intentional. As applied to contracts, it is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantage to the one party, or to cause an inconvenience or loss to the other. Fraud, in the sense of a Court of equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another”.** 4. Similarly, in the case of ***“Arthi Highway Developers Limited – Versus - West End Butchery Limited & 6 others [Supra]”*,**the Court held that:- ***“It is common ground that fraud is a serious accusation which procedurally has to be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt. One of the authorities produced before us has this passage from Bullen & Leake & Jacobs, Precedent of pleadings 13th Edition at page 427:*** ***“Where fraud is intended to be charged, there must be a clear and distinct allegation of fraud upon the pleadings, and though it is not necessary that the word fraud should be used, the facts must be so stated as to show distinctly that fraud is charged (Wallingford – Versus - Mutual Society (1880) 5 App. Cas.685 at 697, 701, 709, Garden Neptune – Versus - Occident [1989] 1 Lloyd’s Rep. 305, 308).*** 1. It is trite that fraud must be specifically proved. See the case of ***“Vijay Morjaria - Versus - Nansingh Madhusingh Darbar & Another [2000] eKLR”***, where the Court held:- ***“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.”*** 1. Further, See also the case of ***“Koinange & 13 others – Versus - Charles Karuga Koinange 1986 KLR”*** at page 23, where the court held that: ***“Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond a reasonable doubt, something more than a balance of probabilities is required.”*** 1. Turning to the issue of time. It goes back to the year 1992 when the suit parcels were allegedly purchased. I am particular with outlining when time started running for it is trite that in cases of fraud time starts running when fraud was discovered. I rely on the authority of “***Justus Tureti Obara – Versus - Peter Koipetai Nengisoi (2014) eKLR”***where Okongo J. Stated that:- ***"……The proviso to section 26 (a) of the Limitation of Actions Act, Cap. 22, Laws of Kenya provides that where an action is based on the fraud of the defendant or his agent, the period of limitation does not begin to run until the Plaintiff has discovered the fraud or could with reasonable diligence have discovered it. As to when the Plaintiff herein discovered the fraud alleged against the defendant is a matter to be ascertained at the trial.”*** 2. The Applicant has made no mention of when the said fraud when discovered given that the issue was not particularised. The affidavit of Isaac Gathungu Wanjohi only indicates that in the year 2021 there was an attempt to open bargain for the suit properties. I therefore find that this suit is time barred, the preliminary objection is thus merited. ***ISSUE No. c.) Which orders should issue in relation to the Notice of Motion application dated 28th June, 2025*** 1. The provision of Order 3 Rule 1 of the Civil Procedure Rules, 2010, prescribes the form and manner of institution of a suit. In the case of:- *“****Scope Telematics International Sales Limited – Versus - Stoic Company Ltd & Another [2017] eKLR”****,* the Court of Appeal held that:- ***“The manner of initiating a suit cannot be termed as a mere case of technicality. It is the basis of jurisdiction. Obviously, overlooking a statutory imperative and the above authorities, the learned judge cannot be said to have exercised his discretion properly. There can be no other interpretation of rule 2. The application should have been anchored as a suit. It was not about what prejudice the appellant or and 2nd Respondent would suffer or what purpose the suit would have served. The discretion cannot be used to override a mandatory statutory provision. For these reasons, we are in agreement with the submissions of the Appellant that the application was totally incurably defective.”*** 1. The Applicant seeks for orders interalia that he is the registered owner of the suit property, that the suit property was fraudulently transferred to the 6th Respondent and for a permanent injunction. The instant suit has been brought before court vide a miscellaneous application. From my view point declaration of ownership being substantive and final orders cannot be issued in a Miscellaneous application as sought by the Applicant. In the case of “***Rockland Kenya Limited – Versus - Commissioner General of KRA & Another (2020) eKLR”****,* the court held that substantive orders cannot be issued in miscellaneous applications. The court had in turn cited with approval the decision in the case of: “***Witmore Investment Limited – Versus - County Government of Kirinyaga & 3 Others (2016) eKLR”*** where Limo J had stated that:- ***“……where a party such as an applicant herein seeks an order that in effect appears to resolve with a finality an issue in controversy or a contested issue, the application ceases to be interlocutory and it is a misconception to describe it as such. If the applicant wanted to move this court for a final resolution of the issues in controversy, raised in the application, it should have moved this court properly in the manner provided by the law.”*** ***ISSUE No. d]. Who will bear the Costs of the Objection and the Notice of Motion application*** 1. It is now well established that the issue of Costs is at the discretion of Court. Costs mean the award that a party is granted at the conclusion of a legal action or proceeding in any litigation. The Black Law Dictionary defines “Cost” to mean, ***“the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”***. Ideally, it is trite law that issues of Costs are at the discretion of the Honorable Court. The provison under the provisions of Section 27 (1) of the Civil Procedure Act, cap. 21 holds that Costs follow events. By events it means the results and outcome of any legal action, proceeding or process in any litigation. In the case of ***“Reids Heweet & Company v Joseph AIR 1918 cal. 717 & Myres v Defries (1880) 5 Ex. D. 180, the House of the Lords noted: -*** ***“The expression “Costs shall follow the events” means that the party who, on the whole succeeds in the action gets the general costs of the action, but where the action involves separate issues, whether arising under different causes of action or under one cause of action, the word ‘event’ should be read distributive and the costs of any particular issue should go to the party who succeeds upon it..***” 1. The events in the instant case is that the Preliminary Objection raised by the 1st 5th and 6th Respondents herein has succeeded. For that very reason, the 1st 5th and 6th Respondents herein will have the Costs of the objection to be borne by the Applicants herein. 2. **Conclusion & Disposition** 3. In conclusion, having conducted an intensive analysis of the framed issues herein, on preponderance of probability, the Honorable Court proceeds to make the following orders; - 4. **THAT the Notice of Preliminary objection dated 14th October, 2025 be and is hereby found to be meritorious and hence it is upheld.** 5. **THAT resultantly, the Notice of Motion application dated 28th June, 2025 and all its prayers sought thereof be and is hereby dismissed.** 6. **THAT the costs of both the Preliminary objection and the Notice of Motion application to be awarded to the 1st , 5th and 6th Respondents to be borne by the Applicant herein.** 7. **THAT the Court file be and is hereby marked as closed.** **IT IS ORDERED ACCORDINGLY.** **RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS ….29TH ……. DAY OF ………….JULY …….2026** **………………………………** **HON. MR. JUSTICE L.L NAIKUNI,** **ENVIRONMENT & LAND COURT** **AT** **KWALE** **Ruling delivered in the presence of: -** 1. Mr. Daniel Disii, the Court Assistant. 2. Mr. Mwendwa Advocate holding brief for SC Dr. Gibson Kamau Kuria Advocate for the Applicant. 3. M/s. Hamid Advocate for the 1st, 5th & 6th Respondents. 4. No appearance for 2nd, 3rd, 4th & 7th Respondents.