Mlai & 2 others v Uhutta Properties Ltd & 3 others (Environment and Land Case E080 of 2025) [2026] KEELC 3876 (KLR) (16 June 2026) (Ruling)

Mlai & 2 others v Uhutta Properties Ltd & 3 others (Environment and Land Case E080 of 2025) [2026] KEELC 3876 (KLR) (16 June 2026) (Ruling) Neutral citation: [2026] KEELC 3876 (KLR) Republic of Kenya In the Environment and Land Court at Kwale Environment and Land Case E080 of 2025 LL Naikuni, J June 16, 2026 Between Mlai Mrema Mlai 1st Plaintiff Mambo Mrema Wandumo 2nd Plaintiff Nzuga Nzuki Wamlai 3rd Plaintiff and Uhutta Properties Limited 1st Defendant South Samburu Group Ranch 2nd Defendant Land Registry Kwale County 3rd Defendant The Director of Survey 4th Defendant Ruling I. Introduction 1.This brief ruling by this Honourable Court relates to an objection raised by the 1st Defendant/Objector herein, Uhutta Properties Limited. The Notice of Preliminary Objection is dated 7th March, 2026. Generally, the objection was with regard to the Plaint, Verifying Affidavit, List of Witnesses along with their statements, List of Documents all dated 21st August, 2025 and filed by the Plaintiffs on the following grounds that: -a.the Plaintiffs lacked the requisite “locus standi” to institute this suit as they had not demonstrated any legally recognizable interest in all that parcel of land known as LR No. Kwale/South Samburu/88 nor lawful authority to sue on behalf of the alleged beneficiaries as per the provision of Order 1 Rule 13 of the Civil Procedure Rules, 2010 rendering the suit incompetent and liable to be struck out.b.the suit was defective, premature, incurably defective and offended “the doctrine of exhaustion” wherein the Plaintiffs failed to follow the due process provided for when a party was seeking to challenge the decision of the National Land Commission, which could only be through Judicial Review Proceedings and not the proceedings herein.c.the Plaintiffs ‘suit was bad in law and procedurally improper before this Honourable Court and therefore the suit was misconceived, incompetent and fatally defective and ought to be struck out with costs to the 1st Defendant.d.in light of the foregoing, therefore, the Plaint was an abuse of the process of this Honourable Court and ought to be struck out with costs to the 1st Defendant. II. Submissions 2.On 17th March, 2026, when this matter came up for directions, the parties were guided by Honorable Court to have the said Preliminary objection canvassed by way of written submissions. 3.Indeed, while the 1st Defendant/Objector complied by filing his written submissions by the time the court retired to write this ruling, the Plaintiffs had failed to do so. The court will nevertheless proceed to render its verdict on its own merit. III. The Written Submission by the 1st Defendant/Objector’s 4.The Law firm of Messrs. James Oketch and Company Advocates filed submissions dated 27th March, 2026. The objector identified two issues for determination.a.Whether the Plaintiffs have the requisite locus to institute this suit.b.Whether the Plaintiffs have offended the doctrine of exhaustion when seeking to challenge the decision of the National Land Commission by instating this suit vide a plaint rather than Judicial Proceedings. 5.On whether the Plaintiffs have the requisite locus to institute this suit, it was submitted that a Preliminary Objection rested on the proposition that when raised, its fundamental achievement would have a bearing on disposing of a matter because it raised pure points of law. That it also underscored the need for prudent time management as a Court resource by summarily flagging frail and hopeless suits that, if admitted to full trial, would be a waste of judicial time and would not serve the interest of justice. 6.The Learned Counsel made reference to the provisions of Order 1 Rule 13 of the Civil Procedure Rules,2010 and stated that in the present matter, the Plaintiffs did not have any written authority of the other would have been Plaintiffs to plead and/or act on their behalf. That there was clearly no compliance with the provisions of Order 1 Rule 13 of the Civil Procedure Rules, 2010 and hence the Plaintiffs could not properly represent Wachanda-Clan Ndana family. That the Plaintiffs therefore lacked the Locus Standi and the capacity to institute this suit. 7.Reference was made to several case law on the issue of what constituted a preliminary objection and when the same was raised on the issue of locus standi and which this court has duly perused and considered. These included:-a.Mukisa Biscuits Manufacturing Co. Limited – Versus - West End Distributors [1969] EA 696.b.Singoei & 3 others (Suing on their own behalf and on behalf of 57 others) – Versus - Marete & 2 others (Environment and Land Case 48 of 2021) [2025] KEELC 6723 (KLR) (1 October 2025) (Judgment)c.Kademba – Versus - Onyango & 2 others (Environment and Land Appeal E01 of 2023) [2025] KEELC 4124 (KLR) (22 May 2025) (Judgment) which cited with approval the Court of Appeal’s sentiments in Alfred Njau & Others – Versus - City Council of Nairobi [1982-88] 1 KAR 229.d.Law Society of Kenya – Versus - Commissioner of Lands & Others, Nakuru High Court Civil Case No.464 of 2000.e.Hussein v Gedi; Adan (Interested Party) (Environment & Land Case E009 of 2024) [2025] KEELC 931 (KLR) (26 February 2025) (Ruling).f.Julian Adoyo Ongunga & Another – Versus - Francis Kiberenge Bendera (suing as Administrator of the Estate of Fanuel Evans Amudavi, Deceased) (2016) eKLR.g.Noor – Versus - Kisilu & another (Environment & Land Case E379 of 2024) [2025] KEELC 3774 (KLR) (13 May 2025) (Ruling). 8.In this instant suit, it was submitted that the Plaintiffs supposedly purported to act as the representatives of the Wachanda Clan Ndana family who claim to be the legal/ beneficial owners of all that parcel of land known as L.R Kwale/ South Samburu 88. However, this was merely a ruse as no authority to act on behalf of the said family/clan had been presented to that effect. The 1st Defendant stated that one could not just merely state that they were ‘representatives’ and expect this Honourable Court to believe them. There was no proof before this Honourable Court conferring this authority upon the said Plaintiffs. 9.Further, the Learned Counsel submitted on the issue of whether the Plaintiffs had offended the doctrine of exhaustion. This was on when seeking to challenge the decision of the National Land Commission by instituting this suit vide a Plaint instead of through Judicial Review Proceedings. It was stated that the provision of Section 14 of The National Land Commission Act, 2025 sets out the procedures by which a party shall seek redress for a decision made by the National Land Commission. The 1st Defendant submitted that the Doctrine of Exhaustion was a crucial aspect that when raised must be determined at the onset of the proceedings. 10.That the doctrine of exhaustion required a party to exhaust all remedies provided by statute and/or law before resorting to the courts. In the present case, it was submitted that the Plaintiffs failed to do so by failing to follow the due process provided for when a party is seeking to challenge the decision of the National Land Commission, which can only be through Judicial Review Proceedings and not the proceedings herein. reference was made to the dictum the case of “Speaker of the National Assembly – Versus - James Njenga Karume [1992] eKLR 21” which stated that where there was a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures. 11.Further reference on the principles on the doctrine of exhaustion was made in the courts holdings in:-a.Geoffrey Muthinja Kabiru & 2 Others – Versus - Samuel Munga Henry & 1756 Others.b.William Odhiambo Ramogi & 3 others – Versus – Attorney General & 4 others Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR.c.Wilson & 3 others – Versus - National Land Commission & 9 others (Civil Appeal 15 of 2020) [2025] KECA 1410 (KLR) (31 July 2025) (Judgment).d.Changi & another – Versus - Cabinet Secretary for Lands, Public Works, Housing and Urban Development & 4 others (Environment and Land Constitutional Petition E022 of 2023) [2024] KEELC 4706 (KLR) (6th June, 2024) (Ruling). 12.The 1st Defendant averred that Plaintiffs’ claims in this suit against the 1st Defendant purported to challenge processes undertaken by the National Land Commission in which the 1st Defendant’s title and ownership of the said Property LR.No. Kwale/South Samburu/86 was upheld. However, where a party sought to challenge the legality or procedural propriety of administrative actions by the Commission, the proper avenue was Judicial Review proceedings and not an ordinary civil suit. That consequently, the current proceedings have been instituted through an improper procedure. 13.In conclusion the court was urged to dismiss the entire suit for being bad in law and procedurally improper before this Honourable Court and therefore misconceived, incompetent and fatally defective. The 1st Defendant sought for costs. IV. Analysis and determination 14.This court has keenly considered the pleadings in form of the plaint instituting the suit, the defence and the Preliminary Objection raised by the 1st Defendant herein, the written submissions, the cited myriad of authorities, the relevant provisions of the Constitution of Kenya, 2010 and the Statutes. 15.In order to arrive at an informed, reasonable and just decision, I have framed the following three ( 3 ) salient issues for determination:-a.Whether the Notice of Preliminary Objection raised by the 1st Defendant meets the threshold required by Law and Precedents.b.Whether the Notice of Preliminary Objection by the 1st Defendant herein as taken is well founded, valid and merited.c.Who will bear the costs of the preliminary objection? Issue No. a). Whether the Notice of Preliminary Objection raised by the 1st Defendant meets the threshold required by Law and Precedents. 16.Under this Sub – heading, the Honourable Court shall be examining the scope, nature and meaning of the concept of “the Preliminary Objection” In the course of that, the Court shall be considering whether the Notice of Preliminary Objection as taken is well founded, valid and merited. To begin with, I will start by setting out what a proper preliminary objection is. According to the Black Law Dictionary a Preliminary Objection is defined as:“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….” 17.Fundamentally, the court have been guided by the famous case of:- “Mukisa Biscuits Manufacturing Co Ltd – Versus - West End Distributors Ltd (1969) EA 696 described a preliminary objection as hereunder: -'So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.' 18.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.' 19.A “demurrer” according to 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.” 20.Similarly, I am guided by various decisions of the courts, the Tanzanian Court of Appeal sitting in Dar es Salaam, in “Karata Ernest & others vs Attorney General (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. 21.I further wish to rely on the decision of the case 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: -a.A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.b.A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; andc.The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute. 22.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. Issue No. b). Whether the Notice of Preliminary Objection as taken is well founded, valid and merited; 23.The preliminary objection herein raises several issues as against the Plaintiffs and the suit and which include the allegation that the Plaintiffs being representatives of the Wachanda-Clan Ndana family ought to have filed a written consent/authority from the rest of the clan members indicating that they had the authority to institute suit on behalf of the rest of the clan. 24.This court is of the view that the question of authority to file a suit on behalf of another or others is an issue of law and the same goes to the core of the suit. The same is therefore an issue of law and thus the preliminary objection is properly placed before court. 25.What is to be discussed thereafter is whether there is merit in the assertions raised by the 1st Respondent who have maintained that the Applicant lacks the requisite authority to institute this suit and act on behalf of the Wachanda-Clan Ndana family. 26.To this end, it is imperative to consider the provision of Order 1 Rule 13 of the Civil Procedure Rules, 2010 which states as follows with respect to the appearance of one of several Plaintiffs or Defendants for others:-(1)Where there are more Plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding, and in like manner, where there are more Defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.(2)The authority shall be in writing signed by the party giving it and shall be filed in the case. 27.From the pleadings on record, the Plaintiffs indeed filed a Plaint accompanied by a Verifying Affidavit sworn by all the Plaintiffs herein. It was stated that the suit had been instituted on behalf of the Wachanda-Clan Ndana family. However, it is noted that there is no written authority from members of the said clan authorising the Plaintiffs herein to institute suit on behalf of the clam members. In this regard I find guidance in case of “John Kariuki & 347 Others – Versus - John Mungai Njoroge & 8 others Nakuru HCCC No. 152 of 2003 (unreported) at page 9” where the court had the occasion to deal with a case of similar circumstances as the present case and ruled as hereunder:-“The plain reading of the above rule (Order 1 rule 12 Civil Procedure rules) is that where a party requires another party to appear, plead, or act on his behalf he has to give the authority in writing before such a person filing suit can claim to be representing such person. The said written authority has to be signed by the person giving the authority and must be filed in court where the suit is to be filed. The mischief that the said rule was meant to address, in my humble view, is to prevent a situation where a party may become bound by a court decision without his having any knowledge of the suit that led to the said decision. The court can envisage a scenario, where, let’s say, after the dismissal of a suit, such a Plaintiff whose name has been included declines to settle the costs on the pretext that he did not authorise the suit to be filed in his name. In my considered view, this requirement is mandatory. A party cannot be condemned or enjoy a benefit from a court process without his say so.” 28.The above finding similarly apply here in the absence of such authority to institute this suit, the Plaintiffs cannot purport to act on behalf of any of the other members of their clan and family. In purporting to do so, without their authority, it is my considered view that the very foundation of the case was on shaky ground rendering the entire suit incompetent. In the circumstances as enumerated above, it is, therefore, abundantly clear that the Preliminary Objection is well-founded, and succeeds. 29.Therefore, based on the above and in the interest of saving judicial time, the court will not belabour much into other issues as raised given that the preliminary objection has conclusively dealt with the suit. Issue No. c). Who will bear the costs of the preliminary objection? 30.It is trite that the issue of costs are at the discretion of Court. Costs is an award that a party is granted at the conclusion of a legal action or proceeding in any litigation. The proviso of Section 21 (1) of the Civil Procedure Act, Cap. 21 holds that costs follow an event. By the event it means the results or outcome of any legal action. 31.Having interrogated the circumstances of this case and the nature of the final orders granted, the court opines that it is fair, reasonable and Equitable that each party to bear its own costs. V. Conclusion and Final Orders 32.In light of the foregoing indepth analysis to the framed issues, I hereby make the following orders:-a.That the preliminary objection dated 7th March 2026 be and is hereby found to be meritorious and hence sustained.b.That the suit by the 1st, 2nd & 3rd Plaintiffs herein be and is hereby struck out in its entirety.c.That each party to bear its own costs.It is ordered accordingly. RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS 16TH DAY OF JUNE 2026……………….……………………HON. MR. JUSTICE L.L NAIKUNI,ENVIRONMENT & LAND COURTATKWALE.Ruling delivered in the presence of: -Mr. Daniel Disii, the Court Assistant.M/s. Onsongo Advocate holding brief for Mr. Ondabu Advocate for the 1st, 2nd & 3rd Plaintiffs.Mr. Oketch Advocate for the 1st Defendant.M/s. Kiti Advocate for the 3rd & 4th Defendants.No appearance for the 2nd Defendants.