https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1583

Lalo & 227 others v Kahia Transporters Ltd & 6 others (Civil Appeal E078 of 2022) [2026] KECA 1583 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1583 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal E078 of 2022 AK Murgor, KI Laibuta & SO Okong'o, JJA July 31, 2026 Between Lalo Lugwe Lalo & 227 others & 227 others & 227 others Appellant and Kahia Transporters Limited 1st Respondent Cabinet Secretary, Ministry of lands & Physical Planning 2nd Respondent Chief Land Registrar 3rd Respondent Land Registrar, Kwale 4th Respondent Director Land Adjudication & Settlement 5th Respondent Director of Survey Kenya 6th Respondent and Ndegwa Menza Katembo & 1157 others Affected Party (An appeal from the Ruling and orders of the Environment and Land Court at Mombasa (L. Naikuni, J.) delivered on 18{{^th}} July 2022) in Kwale ELC Petition No. 2 of 2022 (Formerly Mombasa ELC Petition No. 11 of 2022) Judgment 1.Kahia Transporters Limited, the 1st Respondent, filed a Constitutional Petition in the Environment and Land Court at Mombasa concerning land known as Title No.CR 72836, measuring 466.2 Hectares or thereabouts, that is to say, LR 32095 and LR 37122 (the subject parcels) within the Maji ya Chumvi Adjudication Section of Kwale County, claiming ownership under government- issued titles. On 15th March 2022, the trial court (Naikuni, J.) issued ex parte conservatory orders restraining the Cabinet Secretary for Lands, the Chief Land Registrar and the Kwale Land Registrar, the 2nd to 4th Respondents from issuing additional titles in the adjudication area and from interfering with the 1st Respondent’s alleged ownership and possession of the subject parcels. 2.Two days later, Lalo Lugwe Lalo and 227 others, the Appellants, who described themselves as the genuine allottees and beneficiaries of the adjudication scheme, by a Notice of Motion dated 17th March 2022, sought to be joined as Interested Parties in the 1st Respondent’s Petition. They also sought to suspend, stay or declare void the ex parte orders of 15th March 2022, arguing that those orders were obtained through concealment of material facts, reliance on forged land documents and without giving them a hearing despite the orders directly affecting their proprietary rights. They further requested that the Respondent’s application be heard by the Environment and Land Court at Kwale, where a related matter, Kwale ELC Petition No. 15 of 2022, involving the same land and parties had already been scheduled, and prayed for costs against the Petitioner. 3.In support of their application, the Appellants asserted that the entire Maji ya Chumvi area is trust land to which the Land Adjudication Act applies, and that, therefore, the government could not have validly issued the Respondent with a lease or certificate of title. They claimed to have gone through the entire adjudication process lawfully, culminating in a certificate of finality issued on 27th November 2018, after which titles were prepared and issued to them. They further insisted that the Respondent’s title documents were riddled with inconsistencies, such as purported registration of transfers before the transferors themselves were registered as proprietors. They argued that the documents were forgeries. They further contended that, by the time the court issued the conservatory orders stopping issuance of titles, the adjudication process was already complete and that the orders had been overtaken by events. According to them, the Respondent was forum shopping when it filed the Mombasa petition after unsuccessfully litigating in previously related land matters. 4.On behalf of the 5th Respondent, Purity Wanjiru Mwangi, the Assistant Director of Land Adjudication and Settlement, in an affidavit sworn on 10th May 2022 supported the proposed appellants, explaining that Maji ya Chumvi was indeed trust land; that adjudication had been lawfully undertaken pursuant to Legal Notice No. 170 of 1972; and that a single Certificate of Finality had been issued in November 2018. The deponent clarified that the document the 1st Respondent relied upon was a forwarding letter, and not a certificate of finality. It was also confirmed that titles had already been issued to residents in compliance with earlier court orders, save for five that were still pending and that, therefore, the conservatory orders served no practical purpose. She denied knowledge of any double allocation and challenged the 1st Respondent to explain how it obtained a lease over land that was undergoing adjudication. 5.The 1st Respondent opposed the application, insisting that it was the bona fide registered owner of the subject parcels, and that the alleged inconsistencies in its documents were typographical. It was argued that none of the signatories to the title documents of the subject parcels had repudiated them; that the dispute was between itself and the government agencies, and that the joinder of the 228 Appellants was unnecessary. It also contended that the adjudication-based titles relied on by the Appellants were illegal, and that the 2nd to 6th Respondents had issued a second set of titles over land already legally registered in its name, which amounted to a double allocation. According to the 1st Respondent, the Appellants had not demonstrated any legal basis for review of the ex-parte orders, and had not satisfied the requirements under Order 45 of the Civil Procedure Rules for setting them aside. 6.For their part, the 2nd to 6th Respondents further averred that the conservatory orders were issued without the court being aware that another Environment and Land Court had already issued contrary directions in related proceedings and that, in any event, the adjudication process had closed and titles issued, thereby rendering the conservatory orders of no force or effect. 7.In determining the application, the court identified four issues: whether the Appellants satisfied the requirements for joinder as Interested Parties; whether they met the threshold for review, suspension or setting aside of the ex- parte orders; whether the court had jurisdiction to entertain the matter given the involvement of the Land Adjudication Act; and who should bear costs. 8.On joinder, the court undertook an extensive analysis of the Constitution, the Supreme Court Rules, the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (The Mutunga Rules) and applicable case law, including Communications Commission of Kenya & 5 Others vs Royal Media Services Ltd & 5 Others [2014] eKLR (Petition No. 14 of 2014); Francis Karioki Muruatetu & Another vs Republic & 5 Others [2016] eKLR (Petition No. 15 of 2015; Joseph Njau Kingori vs Robert Maina Chege & 3 Others [2002] eKL; Temple Point Resort Ltd vs Attorney General & 2 Others [2020] eKLR; JMK vs MWM & Another [2015] eKLR; and Moses Wachira vs Niels Bruel & 2 Others [2015] eKLR. 9.Applying the Muruatetu test, the court found that the 228 appellant had a clear and direct proprietary interest in the land in the Maji Ya Chumvi area was in dispute, and took the view that they would suffer real prejudice if excluded; that they had distinct information touching on the legality of the 1st Respondent’s titles, the nature of the land as trust land, and the adjudication process which the 2nd to 6th Respondents might not sufficiently present. The court therefore held that they met the criteria for joinder and ordered that they be joined in the Petition. 10.However, the court declined to set aside, vary, or review the ex parte conservatory orders. The court was of the view that the application was fundamentally incompetent as at the time the Appellants sought the setting aside, variation or review of the ex parte orders, which the learned Judge considered a substantive relief, they were still “proposed” Interested Parties and therefore strangers to the proceedings, and lacked locus standi to challenge the orders. The learned Judge compared their approach to “putting the cart before the horse” and emphasized that constitutional provisions, such as Articles 40, 48, 50 or 159, could not cure an inherently defective application. The learned Judge added that even if the application were competent, the orders could still not be granted as the threshold for review under Order 45 had not been met since the Appellants had not shown discovery of new evidence, or an error apparent on the face of the record, or any analogous sufficient reason. 11.On jurisdiction, the court acknowledged that the Land Adjudication Act provides a structured dispute-resolution mechanism and that ordinarily parties should exhaust. The court was, however, of the view that the Petition raised constitutional issues, allegations of violation of property rights, fair hearing, issuance of double titles and possible illegality, which are matters that fall squarely within the jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution. Referring to the Supreme Court’s reasoning in the case of Republic v Karisa Chengo & 2 Others [2017] eKLR, Supreme Court Petition No. 5 of 2015, the Judge found that the Environment and Land Court had jurisdiction to determine the broad constitutional and land-related issues raised in the petition. 12.In conclusion, the court allowed the application only to the extent of joinder, and the 228 Appellants were ordered to be formally joined as Interested Parties to the Petition. The 1st Respondent was directed to amend its petition within fourteen days and serve the newly joined parties with all pleadings. The court refused to set aside or review the ex parte orders of 15th March 2022 and ordered that the petition be heard on a priority basis, through both affidavits and viva voce evidence. A hearing date was fixed, and the parties were granted time to file any additional documents. Costs of the application were to abide by the outcome of the main petition. 13.Aggrieved by the decision, the Appellants have filed an appeal to this Court on the grounds that: the learned Judge was in error in law and fact in failing to read the record, particularly the proceedings and orders of Dena, J. of 4th April 2022 joining the Appellants and the Affected Parties as Interested Parties; in determining prayer (b) of the Notice of Motion dated 17th March 2022, yet that prayer had already been granted on 4th April 2022; in terming the Appellants as strangers and third parties and by holding that they had not been joined to the petition; in determining prayer (d) of the Motion dated 17th March 2022 on the basis that the Appellants had not been joined to the Petition; in failing to appreciate that, the prayers for joinder and for setting aside could properly be brought within the same application; in failing to appreciate that the Appellants’ right to a fair trial, access to justice and a fair hearing under Articles 25(c), 48 and 50(1) of the Constitution was not dependent on prior determination of the prayer for joinder ; in holding that prayer (d) of the application lacked merit; in failing to hold that he had no jurisdiction over unnamed third parties known to the 1st Respondent, but which the Respondent failed to name and join in the Petition, and that the ex parte orders issued on 15th March 2022 against such unnamed parties were null and void; in holding at the ex parte stage that the 1st Respondent was the absolute and legal owner of the subject parcels, and by finding overlap with the Maji ya Chumvi plots, thereby prejudging the matter without hearing the Appellants; in entertaining the Petition as though it concerned all 430 plots, despite evidence that the alleged overlap or double allocation concerned only five plots; in proceeding to hear the Petition in Mombasa contrary to Section 12 of the Civil Procedure Act ; in failing to hold that the Respondent’s purported grant was issued by the Chief Land Registrar instead of the National Land Commission, and was therefore null and void; in determining the application under Order 45 of the Civil Procedure Rules and other extraneous considerations; and in failing to hold that the government lacked legal capacity to issue any grant to the Respondent, and that the Respondent’s alleged title was therefore void. 14.When the appeal came up for hearing on a virtual platform learned counsel Mr. Kinyua Kamundi appeared for the Appellants, Mr. Ahmednassir Abdullahi SC and Mr. Billow Mohammed appeared for the 1st Respondent, learned counsel Mr. Asige appeared for the Affected Parties, and learned counsel for the State, Mr. Penda appeared for the 2nd to 6th Respondents. The Appellants, 1st Respondent and 2nd to 6th Respondents filed written submissions, which they highlighted briefly. In their submissions, the Appellants submitted that they are 228 residents of Maji Ya Chumvi Adjudication Section within Kinango, Kwale County; that the adjudication process commenced in Maji Ya Chumvi Adjudication Section in 2014, and was concluded in 2018 after which titles were issued pursuant to Section 26 of the Land Adjudication Act following certification of the adjudication record;that, in 2019, the Chief Land Registrar unlawfully granted leases over the subject parcels that were already adjudicated and owned by members of the community; that the leases were issued irregularly, without lawful authority, and in contravention of the Constitution and statutory provisions governing community and public land. 15.The Appellants further submitted that, when the Respondent filed ELC Petition No. 2 of 2022 and obtained conservatory orders on 15th March 2022 affecting 430 plots, the Appellants were not parties to the proceedings. They argued that the ex parte orders restrained dealings with their properties and thereby violated their constitutional rights under Articles 25(c), 27, 40, 48 and 50(1) of the Constitution. 16.On jurisdiction, the Appellants relied on Sections 26 and 29 of the Land Adjudication Act and submitted that, once adjudication was completed and titles issued, disputes ought to follow the statutory dispute resolution mechanisms, including appeals to the Cabinet Secretary; that the learned Judge correctly appreciated that the court lacked jurisdiction over completed adjudication processes, yet contradicted himself by sustaining conservatory orders affecting adjudicated land; that the Petition improperly covered 430 plots whereas the 1st Respondent’s grievance concerned about 10 plots and that, therefore, sweeping conservatory orders amounted to unjustified deprivation of property contrary to Article 40 of the Constitution. 17.It was also submitted that Article 63 concerning community land, Article 67(2)(a), which vests management of public land in the National Land Commission, and Section 12 of the Land Act, all prescribe procedures for allocation of public land; that the Chief Land Registrar lacked capacity to dispose of community land; and that any leases issued contrary to constitutional and statutory provisions were null and void. They further contended that a Land Registrar’s mandate is limited to registration of instruments and issuance of certificates, not alienation of public or community land. 18.The Appellants urged the Court to allow the appeal, declare the ex parte orders of 15th March 2022 null and void, dismiss the 1st Respondent’s application, strike out the Petition, and award costs of the appeal to the Appellants. 19.In a rejoinder, counsel for the 1st Respondent stated that in the application that was before the trial court, the Appellants’ prayers were for joinder as interested parties, suspension/stay of the orders of 15th March 2022, and the setting aside of the said orders on the basis that they were null and void the same having been procured fraudulently. On the appeal, counsel for the 1st Respondent framed several issues which it submitted on, including, whether the appeal was moot and had been overtaken by events; whether the appellants’ fundamental rights to a fair trial, access to justice and fair hearing were violated; whether the Environment and Land Court (ELC) had jurisdiction to hear and determine the Petition; and whether the 1st Respondent’s titles were null and void, and the issue ought to have been determined in limine. 20.On the alleged violation of the Appellants’ fundamental rights and whether or not the Appellants ought to have been joined in the Petition, counsel submitted that Dena, J. had already granted an order for joinder on 4th April 2022 and that, therefore, nothing turned on the question of further joinder of the Appellants by the learned Judge in the Petition. It was further observed that the learned Judge rightly declined to set aside the interim temporary conservatory orders for the reasons that they were overtaken by events following the completion of the adjudication process and the issuance of titles; and that pursuing this appeal while the Petition was ongoing was improper as it would amount to parallel proceedings. 21.On the issue of jurisdiction, counsel argued that this was not a matter for determination by the trial court at this stage. It was submitted that with the completion of the process of land adjudication and issuance of Certificates of Finality, the ouster of the court’s jurisdiction was lifted, and that, as a consequence, the Environment and Land Court had full jurisdiction to determine the Petition which challenges the legality of the issuance of the 1st Respondent’s titles to the subject parcels. It was further submitted that the Petition raises constitutional questions which only the Environment and Land Court had jurisdiction to determine; that, therefore, the Appellants’ argument that only the doctrine of exhaustion applied to the circumstances of the case was misplaced. 22.It was further submitted that the failure by learned Judge to hold that the 1st Respondent’s titles to the subject parcels were issued by the Chief Land Registrar instead of the National Land Commission was null and void. 23.In summary, counsel submitted that there was nothing for determination by this Court and, as a consequence, the appeal should be dismissed in its entirety. 24.Submitting orally on the written submissions, counsel for the State on behalf of the 2nd to 6th Respondents stated that the appeal was largely overtaken by events after the Appellants were joined as interested parties and granted audience before the court; and that, further, setting aside the ex parte orders complained of was an exercise in futility because the adjudication process in the Maji Ya Chumvi Adjudication area had already been completed, which fact the learned Judge had acknowledged in the Ruling. 25.On the issue of joinder, it was submitted that the question had previously been dealt with by consent in Petition No. 46 of 2019 before N. Matheka, J; that the matter before Naikuni, J. was a fresh petition, and that joinder was available to all parties who applied; that the learned Judge joined the interested parties to Petition No. 2 of 2022; and that reference was also made to orders issued by Dena,J. on 4th April 2022 joining over 1,057 applicants as well as the Appellants in related proceedings. 26.It was further submitted that the appropriate forum for hearing and determination of the dispute is the Environment and Land Court at Kwale since Maji Ya Chumvi falls within Kinango Sub-County, Kwale County, and that, therefore, transfer of the matter to Kwale was administratively proper. 27.On the merits of the motion, it was submitted that although the Ministry’s position was supportive of the Appellants’ case that the land was trust land and could not lawfully be allocated, the learned Judge could not conclusively determine the legality of the 1st Respondent’s titles at an interlocutory stage without hearing the full petition; and that, at this stage, the court was limited to making prima facie findings. 28.On jurisdiction, it was emphasised that the trial court was not being invited to re-open the adjudication process, but rather to determine whether the land was available for allocation. It was urged that the appeal be partially allowed and that the substantive petition proceeds before the Environment and Land Court at Kwale. 29.For his part, learned counsel for the Affected Parties, supported the 1st} Respondent’s submissions that the appeal was overtaken by events and ought to be dismissed. 30.In reply, counsel for the Appellants pointed out that the appeal was not overtaken by events since the learned Judge declined to set aside the conservatory orders which, for all intents and purposes, were still in place and prevented the Appellants from dealing with their parcels of land; and that the adjudication process in the area should be allowed to proceed to finalization. 31.This is a first appeal. The duty of this Court on a first appeal is to re- evaluate all the evidence on record before arriving at its own independent conclusion. This was aptly stated in the case of Selle vs Associates Motor Boat & Co. Ltd [1968] EA 123 where the predecessor of this Court stated:“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this Court is not bound necessarily to follow the trial judge's findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif-v-Ali Mohamed Sholan [1955], 22 Ε.Α.C.A.270).” 32.Having considered the grounds of appeal, we are of the view that they can be condensed into the following issues for determination, which are: i) Whether the learned Judge was wrong in holding that the Appellants had not been joined to the Petition and were therefore strangers to the proceedings; ii) Whether the learned Judge was wrong in declining to set aside, suspend or discharge the ex parte conservatory orders of 15th March 2022; iii) Whether the learned Judge made contradictory findings regarding jurisdiction, the land adjudication process, and the propriety of the Petition; and iv) Whether the learned Judge failed to determine the legality and validity of the 1st Respondent's title, and the effect of the completed adjudication process in Maji ya Chumvi Adjudication Section. 33.On the first issue of whether the learned Judge was wrong in holding that the Appellants had not been joined to the Petition and were therefore strangers to the proceedings, and lacked the requisite standing to seek orders for setting aside the ex parte conservatory orders issued on 15th March 2022, it was argued that, prior to the delivery of the impugned ruling, the Environment and Land Court sitting at Kwale, differently constituted by Dena, J., had on 4th April 2022 already allowed their application for joinder and formally joined them as Interested Parties; and that, as a consequence, by the time the learned Judge determined the application, the issue of joinder had ceased to be material. 34.In addressing this issue, the record shows that, on 4th April 2022, Dena, J. ordered that the Appellants and the Affected Parties be joined to the proceedings as Interested Parties. Once those orders were made, the Appellants ceased to be strangers to the proceedings and acquired the right to participate in the Petition, thereby affording them the right to be heard in so far as the matter affected their interests in the land previously under adjudication. Counsel for the Respondents indeed conceded that such orders were granted, and that nothing turned on this issue. 35.The Supreme Court in the case of the Communication Commission of Kenya vs Royal Media Services Ltd & 9 Others [2014] eKLR, held:“An interested party is one who has a stake in the proceedings, though he/she was not a party to the cause ab initio. He/she is one who will be affected by the decision of the court when it is made, either way a person feels that his interest will not be adjudicated unless he or she himself/herself appears in the proceedings and champions his standing.” 36.It is therefore clear that the learned Judge misapprehended the record by disregarding the orders of 4th of April 2022 and by so doing, misconstrued the status of the Appellants by treating them as strangers to the proceedings. Having already been joined to the proceedings, the Appellants were entitled to have their application considered on its merits. 37.As to whether the learned Judge can be faulted for declining to consider and grant the Appellants’ prayer seeking the setting aside, suspension or discharge of the ex parte conservatory orders issued on 15th March 2022, the Appellants contend that, having found that they had a direct and identifiable stake in the subject matter of the Petition, the learned Judge was in error in declining to set aside, suspend or discharge the ex parte conservatory orders issued on 15th March 2022. They argued that the conservatory orders directly affected their proprietary interests in the land within the Maji ya Chumvi Adjudication Section, which orders were issued without affording them an opportunity to be heard; and that, furthermore, the learned Judge improperly invoked the principles governing review under Order 45 of the Civil Procedure Rules, yet the application before him was not one for review but, rather, one seeking the discharge and setting aside of ex parte conservatory orders on grounds of lack of disclosure, want of jurisdiction and violation of the right to a fair hearing. 38.For their part, the Respondents asserted that, notwithstanding the trial court’s determination, the court acknowledged that the Land Adjudication process having been completed, the orders of setting aside of the ex parte conservatory orders did not arise as they were clearly overtaken by events and were of no force or effect. 39.A consideration of the Ruling shows that the learned Judge declined to set aside the conservatory orders, firstly because the Appellants lacked standing to challenge the orders since they had not been joined to the proceedings, and secondly, because they had not satisfied the threshold for review under Order 45 of the Civil Procedure Rules. 40.We begin by observing that the learned Judge was wrong in concluding that the Appellants were strangers to the proceedings. Having been joined on 4th April 2022, they were properly joined as Interested Parties; and that the learned Judge misdirected himself in so finding. 41.Given that the Appellants were properly joined as parties, this would then lead us into the question of whether the learned Judge rightly declined to set aside the ex parte conservatory orders. 42.The Appellants’ application was brought under Article 25 and 50 of the Constitution. And the orders sought were with reference to review and setting aside, as contemplated under Order 45 of the Civil Procedure Rules, which appertains to review, varying and setting aside of orders. Hence it would seem that not only were the Appellants seeking to canvass the application under Articles 25 and 50, they were also seeking a review and setting aside of the conservatory orders on account of discovery of new evidence, an error apparent on the face of the record or any other ground contemplated. 43.Upon considering whether the criteria under Order 45 for review were met, the learned Judge came to the conclusion that they were not and, on this basis, the Judge declined to set aside the conservatory orders. 44.Upon a reassessment of the record, what comes out is that, in their application, the Appellants variously indicated that the adjudication exercise was complete, and that they were issued with titles. Additionally, there was material placed before the trial Judge by the 5th Respondent which showed that,following completion of the adjudication process for the Maji Ya Chumvi Adjudication Area, Certificates of Finality were issued on 27th November 2018 thereby bringing the adjudication process to an end. But this notwithstanding, the trial Judge had gone ahead to grant the conservatory orders. It is also not lost on us that, in their submissions before us, all the Respondents conceded that indeed the adjudication process was at an end, and that titles were issues to the Appellants amongst other third parties. 45.In the orders of 7th March 2022, the trial court ordered that:“…pending the hearing and determination of the application there be a conservatory order issued prohibiting, inhibiting and restraining the 1st, 2nd and 3rd Respondents by themselves, their servants and agents from effecting any further issuance of Title Deeds to 3rd Parties in respect to Maji ya Chumvi Adjudication Section, dealings, disposing of, auctioning or in any manner interfering with the Petitioners’ possession, occupation and ownership of that parcels of land known as Plot No.CR. 72F836 (sic) Plot No. 32095 and 37422 (sic) Kwale”. 46.What this means is that following issuance of the Certificates of Finality on 27th November 2018, and issuance of title deeds, there was nothing for the court to prohibit, inhibit or restrain by the time of issuance of the orders. It would follow that such orders having been issued without reference to the adjudication process and the issuance of the Certificate of Finality, were a nullity, with the result that there was no prejudice to the Appellants one way or the other. 47.In this regard, Lord Denning M.R in the case of Macfoy vs United Africa Co. Ltd [1961] 3 All ER 1169 at pg. 1172 aptly held that:“…If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse”. 48.With the above excerpt in mind, there remains no practical or efficacious basis upon which the impugned conservatory orders can now be set aside. To do so would be tantamount to inviting this Court to issue orders in vain, of which we decline to do. 49.The question pertaining to the issuance of orders in vain was eloquently articulated in the landmark decision of this Court in the case of Okiya Omtatah Okoiti & 2 Others vs Attorney General & 4 Others [2020] eKLR, which cited with approval the principles in Daniel Kaminja and 3 Others vs County Government of Nairobi [2019] eKLR. The Court noted that:“A matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law. Thereby the matter has been deprived of practical significance or rendered purely academic. Mootness arises when there is no longer an actual controversy between the parties to a court case, and any ruling by the court would have no actual, practical impact.” 50.In the circumstances, while we therefore depart from the reasoning adopted by the learned Judge, we ultimately uphold the decision declining to set aside the conservatory orders. 51.Turning to the question whether the learned Judge made contradictory findings regarding jurisdiction, the land adjudication process, and the propriety of the Petition, we take to mind the fact that, in his Ruling, the learned Judge acknowledged that the Land Adjudication Act establishes a comprehensive dispute resolution mechanism through which grievances arising during the adjudication process are to be resolved. The doctrine of exhaustion ordinarily requires parties to pursue those statutory remedies before approaching the courts. This principle has been affirmed by the Supreme Court in the case of Geoffrey Muthinja Kabiru & 2 Others vs Samuel Munga Henry & 1756 Others [2015] eKLR, where the Court emphasized that, Parliament having provided a dispute resolution mechanism, that procedure ought to be exhausted before recourse is heard to the courts. 52.Further, the learned Judge found that the Petition raised constitutional and proprietary questions extending beyond the adjudication process itself. The Respondent's complaint was not merely directed at entries in the adjudication register, but at the alleged issuance of competing titles, infringement of constitutional property rights and the legality of actions undertaken by public authorities in relation to already registered land. It cannot be gainsaid that such matters fall within the jurisdiction conferred upon the Environment and Land Court under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. 53.In the case of Republic vs National Environment Management Authority ex- parte Sound Equipment Ltd [2011] eKLR, the Court observed that the doctrine of exhaustion is not absolute, and that courts may intervene where constitutional issues arise or where the statutory mechanism is inadequate to address the dispute. Likewise, in the case of Moffat Kamau & 9 Others vs Aelous (K) Ltd & 9 Others [2016] eKLR, the Court recognized that disputes involving title to land and constitutional rights may properly fall within the jurisdiction of the Environment and Land Court notwithstanding the existence of other statutory procedures. 54.A consideration of the Ruling does not disclose that the learned Judge contradicted himself merely by acknowledging the existence of the adjudication framework under the Land Adjudication Act, while at the same time affirming the jurisdiction of the Environment and Land Court. The two findings are not mutually exclusive. We find that, in so concluding, the learned Judge correctly held that the Environment and Land Court possessed jurisdiction to entertain the petition. This issue consequently fails. 55.As concerns the question of whether the learned Judge failed to determine the legality and validity of the Respondent’s title and the effect of the completed adjudication process in Maji ya Chumvi Adjudication Section, we take cognaisance of, and it is worthy of note that the Respondents are in agreement, that the application before the learned Judge was not the substantive Petition, but an interlocutory application seeking joinder and discharge of conservatory orders. The legality of the Respondent’s title, the validity of the adjudication process, the question of whether there was double allocation, and the competing claims of ownership are substantive matters that lie at the heart of the Petition itself. The court’s mandate was limited to determining whether the Appellants should be joined to the proceedings and whether the conservatory orders should remain in force pending hearing of the Petition. At this point, the learned Judge was not required to pronounce himself on the Respondent's title, and it was premature for the Appellants to have required it at the interlocutory stage. So that, in declining to address the issue, the learned Judge cannot be faulted. This ground of appeal also fails. 56.In conclusion, we have found that, on the one hand, the learned Judge was wrong in concluding that the Appellants were not properly joined to the application. But, on the other hand, we uphold the learned Judge’s decision in declining to set aside the conservatory orders, and in concluding that the Environment and Land Court had jurisdiction to determine the Petition, and in declining to determine the legality of the 1st Respondent’s title at the interlocutory stage. 57.In sum, the appeal succeeds and is hereby allowed in part only to the extent of the Appellants joinder as parties to the Notice of Motion dated 17th March 2022, but lacks merit and is hereby dismissed. We order each party to bear their own costs.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 31ST DAY OF JULY, 2026.A. K. MURGORJUDGE OF APPEAL.................................DR. K. I. LAIBUTA CArb, FCIArb..................................JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRARS. O. OKONG’OJUDGE OF APPEAL