https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3792

Shalle (Suing on Behalf of the Estate of Shalle Hirbo Alias Shalle Hirbo) v Marsabit Township Women Group & 3 others (Environment and Land Case E001 of 2021) [2026] KEELC 3792 (KLR) (16 June 2026) (Judgment) Neutral citation: [2026] KEELC 3792 (KLR) Republic of Kenya In the Environment and Land Court at Isiolo Environment and Land Case E001 of 2021 JO Mboya, J June 16, 2026 Between Ibrahim Shalle Plaintiff Suing on Behalf of the Estate of Shalle Hirbo Alias Shalle Hirbo and Marsabit Township Women Group 1st Defendant Land Survey, Marsabit 2nd Defendant Land Registrar, Isiolo 3rd Defendant Marsabit County 4th Defendant Judgment 1.The Plaintiff filed the suit vide Plaint dated the 13.04.2021 as against the Defendants herein. The Plaintiff sought various reliefs. The reliefs sought at the foot of the Plaint are:i.An order revoking title number Marsabit/Mountain/794 and Title number Marsabit/Mountain/301 and any other subsequent titles relating to the suit property.ii.An order directing the 2nd and 3rd Defendants to implement the decision in the appeal to the Minister Case No. 14/94 dated 17.04.2003 by demarcating the 5 acres allocated to the 1st Defendant and allocating the rest of the suit property to the Plaintiff and issuing fresh titles accordingly.iii.A permanent injunction restraining the 1st Defendant whether by its officials, members, servants, workmen, agents or otherwise howsoever from constructing, damaging, wasting, charging, alienating, selling, leasing, licensing, occupying, taking possession of, developing, accessing or in any manner dealing with the Plaintiff’s portion of the suit property upon demarcation.iv.A permanent injunction restraining the 1st Defendant whether by its officials, members, servants, workmen, agents or otherwise howsoever to remove all the materials, structures and buildings it has put up on the Plaintiff’s portion of the suit property upon demarcation.v.An order that the 1st Defendant gives vacant possession of the plaintiff’s suit property or in default the plaintiff be at liberty to secure the 1st Defendants forceful eviction and demolition of any buildings in the plaintiff’s portion of land in the suit property with the assistance of relevant law enforcement authorities.vi.Compensation for loss of property.vii.General and exemplary damages.viii.Cost of the suit together with interest on the costs and on [vi] and [vii] above.ix.Any other relief that the honorable court may deem just and fit. 2.The Plaintiff suit is premised on various assertions. The assertions are: the Plaintiff herein was issued with two titles in respect of R L No. 794 and L R No. Marsabit/Mountain/301 [hereinafter referred to as the suit properties]; the First Defendant entered upon and took possession of the suit properties without lawful authority/consent of the Plaintiff; the entry/trespass onto the disputed portion occurred before the land could be demarcated; the 1st Defendant has remained in occupation/possession of disputed portion of the suit properties; the 1st Defendant has since threatened to commence construction on the disputed portions of the properties; and the 1st Defendant cannot commence any such development/construction on the disputed portion before demarcation with a view to separating their respective portions of land. 3.Additionally, the Plaintiff has posited thus: the actions of the 1st Defendant are unlawful; the 1st Defendant has no rights to remain on/occupy the disputed portion of the suit properties; the actions of the 1st Defendant have denied/deprived the Plaintiff of his lawful rights/interest over the suit property. 4.Furthermore, the Plaintiff has contended thus: The 2nd and 3rd Defendants have failed/neglected to implement the decision of the Minister issued vide case number 14 of 1994; the decision of the Minister [now Cabinet Secretary] was rendered on the 17.04.2003; various attempts by the Plaintiff to facilitate implementation of the decision of the minister have been thwarted by the 2nd and 3rd Defendants; and the failure to implement the decision of the minister has contributed to the unlawful activities by the 1st Defendant. 5.The Plaintiff has further contended that the 4th Defendant has also contributed to violation of his property rights by failing to compensate the Plaintiff for giving away his [plaintiff’s] portion of land to the 1st Defendant. 6.Be that as is may, the Plaintiff has posited that the 2nd and 3rd Defendants have since agreed and scheduled to implement the decision of the minister vide case number 14 of 1994. To this end, the plaintiff has sought a plethora of reliefs as against the Defendants jointly/severally. The details of the reliefs sought have been highlighted elsewhere herein before. 7.The 1st Defendant duly entered appearance and filed a statement of defence and counter claim. The defence and counter claim is dated the 26.04.2021. The reliefs sought vide the counter claim are:i.Cancellation of title LR No. Marsabit/Mountain/791ii.Eviction of the Plaintiff from a portion of land christened LR NO. Marsabit/Mountain/794 which was demarcated from the original L.R. No. Marsabit/Mountain/301.iii.General and exemplary damages against the plaintiff for continued illegal occupation of the 1st Defendant’s land.iv.An order that the Defendant to strictly implement the findings in objection proceedings Nos. 148/92 and 171/92.v.Costs of the suit.vi.Any other alternative relief as may be just in the circumstances that the court may deem fit to grant. 8.The 2nd and 3rd Defendants also entered appearance but did not file statement of defence. Nevertheless, learned counsel for 2nd and 3rd Defendants participated in the proceedings. 9.It is instructive to state that upon the conclusion of the hearing, the advocates for the parties entered into a consent whereupon a substantial chunk of the dispute was resolved. It is pertinent to reproduce the terms of the consent. 10.The terms are reproduced as hereunder:i.That the Chief Land Registrar and the Director Surveyors be and are hereby directed to strictly implement the Land Adjudication Officer’s decision in Objection Numbers 148/92 and 171/92 dated 19/11/2023 and as affirmed by the Minister’s Appeal No. 14/94 dated 17.04.2003, within 60 days from the date of this order.ii.That the current surveyor for Marsabit County, Mr. Mathai David, shall not be involved in the implementation/execution of [1] above.iii.That parties are at liberty to involve their independent surveyors during the implementation/execution of the Land Adjudication Officer’s decision.iv.That parties shall permanently restrained to their respective portions of land after the implementation/execution of the Land Adjudication Officer’s decision.v.That the plaintiff and 1st Defendant shall share costs of implementation of [1] above equally.vi.That parties to file submissions on the issues of compensation to the plaintiff within 30 days. Each party to have 14 days apiece.vii.That each party shall bear their costs of the suit and counterclaim.viii.That each party shall be at liberty to apply. 11.Notably, the only limb of the dispute that remained for determination related to and concerns the dispute as pertains to whether the plaintiff is entitled to compensation, and if so, the quantum thereof. In addition, there is also the aspect as to whether the Plaintiff is entitled to general damages and exemplary damages; and if so, the quantum thereof and the party chargeable with such damages. 12.The advocates for the parties agreed to file and exchange written submissions. Suffice it to state that the parties thereafter, proceeded to and filed their respective submissions. The submissions by the Plaintiff are dated 13.02.2026, whereas the submissions by the 1st Defendant are dated the 03.06.2026. 13.The Plaintiff has highlighted two [2] key issues vide the submissions dated the 13.02.2026. The issues are: Whether the Plaintiff is entitled to compensation for an unlawful deprivation of land; and What are the principles that guide the assessment of compensation in compulsory acquisition. 14.Regarding the first issue, learned counsel for the plaintiff has submitted that the actions by /on behalf of the 1st Defendant denied the plaintiff his rights to and in respect of the disputed portion of land. In addition, it has been submitted that owing to the impugned actions by the 1st Defendant, the plaintiff was unable to benefit from the land. 15.Arising from the foregoing, learned counsel for the plaintiff has submitted that where a party, in this case, the plaintiff is deprived of usage of his land, then the plaintiff ought to be compensated. Moreover, it has been submitted that the compensation ought to be calculated; assessed ; and certified on the basis of the market value. In particular, it has been submitted that it is only the market value, which will restore the plaintiff to the position same [plaintiff] would have been, were it not for the offensive actions. 16.To buttress the submissions that the plaintiff is entitled to recompense, learned counsel for the Plaintiff has cited and relied upon the valuation report prepared by M/S Hillscape Valuers Limited dated the 07.03.2023 and wherein the valuer assessed the land to be given to the plaintiff in the sum of Kshs. 45,000,000/= only. Furthermore, it has been submitted that the land in question falls within a prime residential area and therefore the value given by the valuer, ought to be used as being authoritative. 17.Simply put, learned counsel for the plaintiff has invited the court to award and decree compensation in the sum of Kshs. 45,000,000/= only on account of deprivation and denial, namely; Loss of user. 18.With regard to the second issue, learned counsel for the plaintiff has submitted that the plaintiff is entitled to Mense profit for the entire duration of deprivation. It has been submitted that the plaintiff has been deprived of the usage of the portion of the disputed land since 1979. To this end, it has been posited that the plaintiff is entitled to Mense profit calculated at the rate of Kshs. 500,000/= only per year for 40 years. The counsel for the plaintiff has thereafter computed the aggregate figure of Kshs. 20,000,000/= only, as reflecting the amount payable on account of Mesne Profits. 19.In support of the plea for Mense profits, learned counsel for the Plaintiff has cited and referenced two decisions. The decisions are: Attorney Genaral versus Halal Meat Products Limited [2016] eKLR; and Karanja Mbugua versus Marybin Holding Company Limited [2014] eKLR, respectively. 20.The next issue that has been canvassed by learned counsel for the Plaintiff relates to and concerns the claim for general and exemplary damages as against the Defendants. Counsel has submitted that the actions complained of and the attendant deprivation, was arbitrary, oppressive and unconstitutional. To this end, it has been submitted that the Plaintiff is entitled to the sum of Kshs. 5,000,000/= only. It has been contended that the said award shall go along way in vindicating the plaintiff’s proprietary rights under Article 40 of the Constitution, 2010. 21.In a nutshell, learned counsel for the Plaintiff has invited the court to find and hold that the plaintiff is entitled to compensation in the sum of Kshs. 70,000,000/= only, on the basis of loss of user of land; Mense profits; and exemplary damages. The plaintiff has also sought for costs of the suit. 22.The 1st Defendant filed written submissions dated the 03.06.2026 and wherein same has highlighted and canvassed six [6] key issues. The issues are: Whether the plaintiff has established a lawful basis for an award of compensation against the 1st Defendant; whether the plaintiff is guilty of material non-disclosure, acquiescence and inequitable conduct disentitling him from equitable reliefs; whether the alleged loss, Mense profits and valuation claims have been strictly proved in accordance with the law; whether liability[if any] lies against the 2nd and 3rd Defendants for failure to implement the minister’s decision; whether the plaintiff is entitled to exemplary damages, Mense profits and general damages as against the 1st Defendant; and whether the plaintiff’s claims are speculative, exaggerated, statute barred and legal unsustainable. 23.Regarding the first issue, it has been submitted that the plaintiffs claim touches on and concerns the portion of land which was awarded vide the decision of the minister, but which decision has not been duly implemented. Insofar as the decision rendered by the minister vide appeal case number 14 of 1994, has not been implemented, it was submitted that the claim by the plaintiff seeking compensation is legally untenable. In addition, it has been submitted that the claim in question has been mounted in vacuum. 24.Furthermore, learned counsel for the 1st Defendant has submitted that the issue of implementing the decision of the minister; and in particular, demarcating the boundaries of the various portions of land that were awarded to the parties, the plaintiff inclusive, lies with the 2nd and 3rd respondents and not otherwise. In this regard, it has been posited that the 1st Defendant was not obligated to implement the decision of the minister and thus no liability can be attributed to the 1st Defendant. 25.The second issue that has been canvassed by the 1st Defendant touches on and concerns the duration of delay that has been taken by the plaintiff, before mounting the subject claim. It has been submitted that the plaintiff was aware/knowledgeable of the decision of the minister since the year 2003, but same failed/neglected to take appropriate actions, to facilitate the implementation of the decision. Insofar as the plaintiff took unreasonable and inordinate duration before approaching the seat of justice, it has been contended that the plaintiff’s conduct is inequitable and hence the Plaintiff cannot partake of the relief[s] sought. 26.In addition, learned counsel for the 1st Defendant has submitted that the plaintiff herein is disentitled from partaking of and benefiting from the equitable discretion of the court. Moreover, learned counsel has invoked the doctrine of acquiescence; waiver; and laches. 27.The next issue that has been canvassed by learned counsel for the 1st Defendant relates to the claim for Mense profits. It has been contended that the plea of Mense profits is akin to special damages and therefore it was incumbent upon the plaintiff to plead and particularize the claim. Nevertheless, it has been posited that the plaintiff has failed to particularize Mense profits and thus the claim for Mense profits in the sum of Kshs. 20,000,000/= only, is misconceived. 28.To buttress the submission as pertains to the law of Mense profits, learned counsel for the 1st Defendant has cited and referenced, inter alia; the holding in the case of Attorney General versus Halal Meat products Limited [2016] eKLR, where the Court of Appeal underscored that Mense profit must be pleaded and particularized, before same can be proven. 29.The fourth issue that has been submitted upon relates to the issue of whether the valuation report dated the 07.03,2023, can be used or deployed to found a claim for compensation in the sum of Kshs. 45,000,000/= only. To this end, it has been submitted that the valuation report under reference relates to and concerns LR No. Marsabit/Mountain/2497, which is separate and distinct from the suit properties. It has been posited that the valuation report is therefore irrelevant and cannot be deployed for purposes of awarding the colossal amount of money sought. 30.Moreover, it has been submitted that the impugned valuation report was undertaken unilaterally by the plaintiff and without the involvement of the 1st Defendant. Consequently, and in this regard, it has been posited that the court cannot merely take the contents of the valuation report without subjecting the report to scrutiny in accordance with the law. 31.The next issue relates to whether the plaintiff has established the basis for the award of general and exemplary damages. To this end, it has been submitted that the actions complained of, namely; the failure to implement the decision of the minister vide appeal number 14 of 1994 can not be attributed to the 1st Defendant. Furthermore, it has been submitted that the implementation of the decision of the minister fell on the shoulders of the 2nd and 3rd Defendants and hence the 1st Defendant cannot be called upon to bear any liability. 32.Be that as it may, it has been submitted that the plaintiff has also failed to meet and satisfy the condition[s] to warrant the grant of the orders of general damages and exemplary damages. In particular, it has been submitted that the plaintiff has neither established nor shown any malice; fraud; oppressive conduct; deliberate abuse of power; calculated impunity; and unlawful enrichment by the 1st Defendant. 33.The last issue that has been submitted upon relates to the contention that the plaintiff’s suit pertaining to and concerning compensation; Mense profits; and exemplary damages [if any], is barred by the Limitation of Actions Act, Chapter 21 Laws of Kenya. To this end, learned counsel for the 1st Defendant has cited and referenced the provisions of Section 4 [2] of the Act. 34.Premised on the foregoing submissions, learned counsel for the 1st Defendant has contended that the claims by /on behalf of the plaintiff are premature, misconceived, and legally untenable. In this regard, the court has been invited to return a finding that the claim for compensation has been mounted in vacuum and thereafter to dismiss the claim with costs to the 1st Defendant. 35.The 2nd, 3rd and 4th Defendants did not file any written submissions. For the avoidance of doubt, the only submissions that are on record are the once which have been filed by/on behalf of the plaintiff and the 1st Defendant, whose details have been highlighted elsewhere herein before. 36.Having reviewed the pleadings filed by/on behalf of the respective parties; and upon taking into account the terms of the consent that was entered into and executed on the 02.10.2025; and bearing in mind the submissions filed on behalf of the respective parties, three [3] key issues crystalize for consideration and determination. The issues are: Whether the plaintiff is entitled to compensation for loss of land and if so, the quantum of the recompense; whether the Plaintiff is entitled to Mense profits and if so the quantum payable; and whether the plaintiff has established a basis for the grant of an order of exemplary damages or otherwise. 37.Regarding the first issue, namely; Whether the plaintiff is entitled to compensation for loss of land and if so, the quantum of the recompense, it is imperative to highlight that the plaintiff’s claim to this end arises from and concerns the portion of land, which the plaintiff was awarded vide the decision of the minister in respect of appeal case number 14 of 1994. The decision under reference was rendered on the 17.04.2003, but same remained outstanding and pending implementation upto and including the time when the suit was filed. 38.Additionally, it is worthy to point out that by the time the hearing of the instant matter was concluded, the decision of the minister had not been implemented. In this regard, it is common ground that the portion of land which was awarded to and in favour of the plaintiff, as well as the 1st Defendant, have not been demarcated on the ground. Moreover, there is no gainsaying that the plaintiff has alluded to and confirmed the fact that demarcation has not been undertaken. [See paragraphs 9, 11, 13 and 15 of the plaint, wherein the plaintiff confirms that demarcation has not been done. 39.Pertinently, the contents of paragraph 9 of the plaint are instructive. To this end, it is apposite to reproduce the said contents. 40.Same are reproduced thus:“The 1st Defendant does not have any or better proprietary or possessory rights over the plaintiff’s land and cannot therefore continue to use the suit property without the express consent of the plaintiff since neither the plaintiff nor the 1st Defendant know the demarcations separating their respective portions of land.” 41.My reading and understanding of the foregoing paragraph drive[s] me to the conclusion that both the plaintiff and the 1st Defendant, are awaiting the implementation of the decision by the minister vide appeal case number 14 of 1994; and thereafter to discern the exact ground locations/boundaries of their respective portions. For good measure, the plaintiff confirms that both parties do not know the demarcation separating their portions. 42.If the plaintiff does not exactly know the demarcations constituting/comprising his land, then the question that does arise is how can the plaintiff contend that the 1st Defendant has encroached onto his portion; and thereafter deprives same of [sic] his portion of land. To my mind, the ascertainment of the boundaries and the demarcations of the ground positions of the portions belonging to the respective parties, is a precursor to ascertaining trespass; encroachment; or deprivation. [See the decision in Barta (Suing as the Legal Representative to the Estate of the Late Oloishuro ole Barta Kura) v Farah & another [2026] KECA 764 (KLR)]. 43.Other than the fact that the demarcations have not been undertaken, so as to enable the parties to appreciate the extent of their various portions of land, there is also the issue that the valuation report being relied upon to stake a claim for compensation was undertaken in respect of LR No. Marsabit/Mountain/2497, which is separate and distinct from the parcels of land alluded to in the body of the Plaint. 44.Suffice it to underscore that the valuation report that relates to a parcel of land, which is not the subject of the pleadings, cannot be deployed for purposes of assessing and awarding compensation. To my mind, the plaintiff herein and the learned counsel are trying dupe and mislead the court into awarding compensation on the basis of an alien title. Quite clearly, the reliance on the valuation report prepared by Ms. Hillscape Valuers and dated the 07.03.2023, is prohibited by the doctrine of departure. [see Order 2 Rule 6 of the Civil procedure Rules, 2010]. [see also the holding in the Presbyterian Foundation v Kibera Siranga Self Help Group Nursery School [2023] KECA 371 (KLR). 45.The final aspect relating to the subject issue touches and concerns the question that the claim for compensation for loss of user [deprivation of land] is one that was capable of being ascertained and quantified by the plaintiff at the onset. In addition, the plaintiff was obligated to thereafter plead and particularize the sum claimed. To my mind, it was incumbent upon the plaintiff to plead the claim of Kshs. 45,000,000/= only, in the body of the plaint; particularize same; and thereafter tender the evidence [whether valuation report or otherwise] to prove the amount pleaded. 46.Be that as it may, it is common ground that the plaintiff neither pleaded nor particularized the claim pertaining to loss of user ; or the sum of Kshs. 45,000,000/= only, which is now being sought vide the written submissions. The claim under reference is clearly untenable and has been mounted without the requisite legal foundation. [See the holding in the case of Superior Homes (Kenya) PLC v Water Resources Authority & 9 others [2024] KECA 1102 (KLR)]. 47.Next is the issue of the claim on account of Mense profits. The Plaintiff has equally submitted that the 1st Defendant has deprived same of his portion of land for a duration of more than 40 years. In particular, it has been posited that the deprivation commenced in the year 1979. Nevertheless, there is no gainsaying that the ascertainment of the portion belonging to the respective parties is yet to be undertaken. 48.Notwithstanding the foregoing, it is common ground that a claim for Mense profits is akin to special damages. In this regard, any claimant seeking to partake of and benefit from Mense profits, is obligated to plead and particularize same. Absent pleadings and the requisite particulars, the claim for Mense profit becomes untenable. [See the holding in Karanja Mbugua versus Marybin Holdings Limited [2014] eKLR; Attorney General versus Halal Meat Products Limited [2016] eKLR; Embakasi Properties Limited versus The Commissioner of Lands and another [2019] eKLR; and Christine Nyanchama Oanda versus The Registered Trustees of the Catholic Dioceses of Homabay [2020] eKLR.] 49.There is no gain saying that the plaintiff did not plead and particularize Mense profits. In the absence of the requisite pleadings, the plaintiff herein cannot now invite the court to award the sum of Kshs. 20,000,000/= only under the heading of Mesne profits. In my humble view, the claim has been mounted in vacuum and without due regard to the obtaining jurisprudence. 50.The last issue that falls for consideration is whether the plaintiff has established a basis to warrant the grant of exemplary damages or otherwise. The law on exemplary damages was reaffirmed by the court of appeal in the case of Municipal Council of Eldoret v Titus Gatitu Njau [2020] KECA 782 (KLR]. The court of appeal reviewed previous decisions on the question of exemplary damages and thereafter, fortified the position in the following manner:The court stated thusAs stated by this Court in Godfrey Julius Ndumba Mbogori & another v Nairobi City County [2018] eKLR:“Exemplary damages are essentially different from ordinary damages. The object of damages in the usual sense of the term is to compensate. The object of exemplary damages is to punish and deter. We are guided by the case of Rookes v Barnard [1964] AC 1129 where Lord Devlin set out the categories of cases in which exemplary damages may be awarded which are:i)in cases of oppressive, arbitrary or unconstitutional action by the servants of the government, ii) cases in which the Defendant’s conduct has been calculated to make a profit for himself which may well exceed the compensation payable to the plaintiff and iii) where exemplary damages are expressly authorized by statute”. 51.The Plaintiff has sought exemplary damages as against the Defendants. For good measure, the plaintiff has not isolated which of the Defendants, if at all, is chargeable with the claim of exemplary damages. Nevertheless, it is common ground that the crux of the plaintiff’s claim touch on and concern the failure; neglect; or refusal to implement the decision of the minister issued vide appeal case number 14 of 1994. 52.To the extent that the nub of the plaintiff’s case relates to the implementation of the decision of the minister, there is no gainsaying that the 1st Defendant cannot bear any liability. Suffice it to underscore, that the 1st Defendant is a private organization/welfare group and thus same is not and cannot be chargeable with the implementation of the decision of the minister. To this end, I am at a loss as to how the plea/claim for exemplary damages, can be raised; canvassed; or propagated against the 1st Defendant. Simply put, the claim for exemplary damages as against the 1st Defendant is premature; misconceived; and stillborn. 53.Additionally, it is important to point out that the decisions of the minister emanating from the adjudication process pursuant to the Land Adjudication Act, Chapter 284 Laws of Kenya, are to be implemented by the Director of Land Adjudication and Settlement; and the Chief Land Registrar, respectively. 54.Section 29[2] of the Land Adjudication Act [Supra] is instructive. The section stipulates thus:29.Appeal(2)The Cabinet Secretary shall cause copies of the order to be sent to the Director of Land Adjudication and to the Chief Land Registrar.(3)When the appeals have been determined, the Director of Land Adjudication shall—(a)alter the duplicate adjudication register to conform with the determinations; and(b)certify on the duplicate adjudication register that it has become final in all respects, and send details of the alterations and a copy of the certificate to the Chief Land Registrar, who shall alter the adjudication register accordingly.(4)Notwithstanding the provisions of section 38(2) of the Interpretation and General Provisions Act (Cap. 2) or any other written law, the Cabinet Secretary may delegate, by notice in the Gazette, his powers to hear appeals and his duties and functions under this section to any public office by name, or to the person for the time being holding any public office specified in such notice, and the determination, order and acts of any such public officer shall be deemed for all purposes to be that of the Cabinet Secretary. 55.Despite the clear provisions of Section 29[2] of the Land Adjudication Act, the plaintiff did not implead or join the designated officers. On the contrary, the suit was prosecuted on the basis of the current Defendants, primarily the Land Surveyor – Marsabit; and the Land Registrar- Isiolo. Though no objection was taken or raised against the competence of the named Defendants as pertains to the implementation of the decision of the minister, the question that comes to mind is whether the named Defendant[s] can be charged with dereliction of duty so as to warrant an award of exemplary damages. 56.I am afraid that the claim for exemplary damages cannot be placed at the door step[s] of the 2nd and 3rd Defendants. To this end, I also come to the conclusion that the plea for exemplary damages is legally untenable and does not lie as against the Second and Third Defendants. 57.Notwithstanding the foregoing, it is also important to highlight that the claim for exemplary damages falls within the realm of tort. It is trite that a cause of action based on tort can only be canvassed and propagated as against the government or governments departments within the time lines set vide Section 3 of the Public Authorities Limitations Act, Chapter 39 Laws of Kenya. Notably, the claim for exemplary damages ought and should have been filed within one year from the date when the cause of action arose/ accrued. 58.If I understand the plaintiff correctly, the plaintiff is complaining that the 2nd and 3rd Defendant failed to implement the decision of the minister rendered on the 17.04.2003, within reasonable time or at all. In this regard, I hold the opinion that the cause of action accrued shortly after the delivery of the impugned decision. 59.To my mind, the claim for exemplary damages also falls at the door step of limitation. Section 3 of the Public Authorities Limitation Actions stipulates thus:3.Limitation of proceedings(1)No proceedings founded on tort shall be brought against the Government or a local authority after the end of twelve months from the date on which the cause of action accrued.(2)No proceedings founded on contract shall be brought against the Government or a local authority after the end of three years from the date on which the cause of action accrued.(3)Where the defence to any proceedings is that the Defendant was at the material time acting in the course of his employment by the Government or a local authority and the proceedings were brought after the end of—(a)twelve months, in the case of proceedings founded on tort; or(b)three years, in the case of proceedings founded on contract, from the date on which the cause of action accrued, the court, at any stage of the proceedings, if satisfied that such Defendant was at the material time so acting, shall enter judgment for that Defendant. 60.There is one more aspect that merits discussion. It is common ground that the decision of the minister, which founds the claim for exemplary damages was rendered on the 17.04.2003. The decision under reference was within the knowledge of the plaintiff, or his predecessor. To this end, it behooved the plaintiff to take appropriate steps to pursue the implementation. Instructively, the plaintiff or his predecessor, was at liberty to institute appropriate judicial review proceedings for mandamus. 61.I have reviewed the totality of the documents that were tendered and produced before the court and I have not come across any attempt by the plaintiff to reach out to the Director of Land Adjudication and Settlement; and the Chief Land Registrar for purposes of implementation. Notably, the only time that the plaintiff took steps was in April, 2021, when the plaintiff approached the 3rd Defendant [the land registrar- Isiolo] for implementation. [See paragraph 15 of the plaint]. 62.The point that I am making is to the effect that the plaintiff herein did not exercise due diligence or take proactive steps, to facilitate the implementation of the decision of the minister. In this regard, the plaintiff is deemed to have acquiesced in the delay and or default. The plaintiff’s claim for exemplary damages is therefore equally defeated by the doctrine of Laches. [See the discussion on the legal implications of the doctrine in the case of Chief Land Registrar and another versus Nathan Tirop Koech and others [2018] eKLR]. 63.In a nutshell, I am not persuaded that the plaintiff has met or satisfied the legal strictures underpinning the award of exemplary damages. In my humble view, the prayer for exemplary damages crumbles. 64.Before concluding on this matter, there is one salient issue which was not canvassed by the parties. However, the issue is pertinent and same touches on the legal capacity [if any] of the 1st Defendant to sue or be sued in its own name. It suffices to state that the 1st Defendant is a women group/an association which is ordinarily registered with the concerned ministry. The association or the welfare group does not accrue, or possess any legal capacity and thus same cannot be sued in its own name. 65.Be that as it may, the plaintiff herein proceeded to and sued the 1st Defendant in its own name. Quite clearly, the suit as against the 1st Defendant was premature and incompetent. It is trite that a suit/civil proceeding[s] can only be mounted against legal entities and not otherwise. [See the holding of the court of appeal in the case of Deposit Protection Fund Board in Liquidation of Euro Bank Limited (In Liquidation) v Rosaline Njeri Macharia & another [2016] KECA 804 (KLR)]. 66.The issue was neither raised nor canvassed. I therefore do not wish to make any precipitate findings on this issue or to deploy same in an endeavor to non-suit the Plaintiff. However, being a jurisdictional question, it is a matter that ought to have been taken by the parties at the onset. Conclusion: 67.The Plaintiff sought to procure positive orders from the court on various accounts. In particular, the plaintiff sought compensation for loss of user/deprivation of land. However, there is no gainsaying that the land which underpins the claim for compensation had not been duly demarcated on the ground, so as to enable the plaintiff to discern his designated boundaries. 68.On the other hand, the plaintiff also sought Mense profits. However, it is not lost on me that the prayer for Mense profit was neither pleaded nor particularized. To this end, the prayer for Mense profits, did not lie. It was canvassed albeit in vacuum. 69.The last relief that was sought touched on payment of exemplary damages. Nevertheless, I have pointed out that the plaintiff did not establish or prove the requisite elements that underpin the grant of an order of exemplary damages. Simply put, the plea for exemplary damages was equally misconceived. 53.Regarding costs, I wish to state that the parties herein had substantially settled the dispute vide consent entered into on the 02.10.2025. In this regard, and taking into account the goodwill that was exhibited by the parties, it is my conclusion that the appropriate order on costs is to the effect that each party do bear own costs of the suit. Final orders: 53.Flowing from the foregoing analysis, the final orders that commend themselves to the court are:i.The prayer for compensation for loss of user/deprivation of land be and is hereby dismissed.ii.The prayer for Mense profits be and is hereby dismissed.iii.The prayer for exemplary damages be and is hereby dismissed.iv.Each party shall bear own costs of the suit.v.Costs of the counter claim had already been dealt with vide the consent order issued on the 02.10.2025. 70.It is so ordered. DATED, SIGNED AND DELIVERED AT ISIOLO THIS 16TH DAY OF JUNE, 2026OGUTTU MBOYA, FCIArb; CPM [MTI].JUDGEIn the presence of:Court Assistant: Zakayo /MukamiMs. Omamo holding brief for Mr. Wamwea for the PlaintiffMr. Mosota for the 1st DefendantN/a for the 2nd and 3rd DefendantsN/a for the 4th Defendant