https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4441

**REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT VOI ELC CASE NO. E007 OF 2026** **DAVID MARTIN MJOMBA MWAWASI** ................................ **PLAINTIFF/APPLICANT** **-VERSUS-** **JOEL SOGHE MWANDOTO, JUMA MWAMBOGHA, FRANCIS MWARASHU KICHOI, JOYCE NGANYI, SHADRACK MWAKESI, PHEIRUTH MWARUNGU, WILLIAM WABONOGO, JOHANA NGAI, PHELESIA WANYIKA, KENNETH MWAKABA, JONES MWAKIMA, KADIJA MWASAMBO, JOHN MWAIGA, JACINTA PONGA AND JACKSON MAKEO ……………1st -15th DEFENDANTS/ RESPONDENTS** *(Sued as the purported Chairperson, Vice Chairperson, Secretary and Treasurer and members respectively of Kishamba B Community Land Management Committee)* **COMMUNITY LAND REGISTRAR,** **TAITA/TAVETA COUNTY …………………………..…2nd DEFENDANT/ RESPONDENT** **COUNTY GOVERNMENT OF TAITA/TAVETA.........3RD DEFENDANT/ RESPONDENT** **ATTORNEY GENERAL....................................................4th DEFENDANT/ RESPONDENT** **RULING** **Introduction/Background:** 1. . The Plaintiff/Applicant's Notice of Motion dated 24th March 2026, brought pursuant to Article 159(2)(d) of the Constitution of Kenya, Sections 1A, 1B and 3 of the Civil Procedure Act, Cap. 21, Laws of Kenya, Order 51 Rule 1 of the Civil Procedure Rules, 2010, and all other enabling provisions of the law seeks following orders. (a) - (d) Spent (e) THAT upon inter partes hearing, this Honorable Court be pleased to issued out an Order directed to the defendants/respondents, whether by themselves, their agents, servants, officers or any other person acting under their instructions, directions and/or supervision, to immediately surrender the original certificate of title of the Community Land whose whereabouts remains unknown for safe custody under lock and key pending the determination of the main suit. (f) THAT upon hearing this application interpartes, this Honorable Court be pleased to issued out a status quo order directed to the defendants/respondents, whether by themselves, their agents, servants, officers or any other person acting under their instructions, directions and/or supervision, restraining them from further discharging their duties as KISHAMBA B COMMUNITY LAND MANAGEMENT COMMITTEE on all their piece of land known as KISHAMBA B COMMUNITY LAND and/or SAGALLA/KISHAMBA "B/1" pending the hearing and determination of the main suit. g) THAT in lieu of order (d) above and in the interim, this honorable Court be pleased to issue an interlocutory order of injunction directed to the defendants/respondents, whether by themselves, their agents, servants, officers or any other person acting under their instructions, directions and/or supervision, restraining them from opening the tender bids for the subdivision of the community land, announcing the successful bidder and proceeding to subdivide all that piece of land known as KISHAMBA B COMMUNITY LAND and/or SAGALLA/KISHAMBA 'B/1 pending the hearing and determination of the main suit. (h) THAT this Honorable Court be pleased to grant any Order or relief that it deems fit and necessary to grant to meet the ends of Justice; and (i) Costs of the Application be Provided for. 2.The Application is supported by the Affidavit of David M. Mjomba Mwawasi, sworn on 24th March 2026 together with annextures marked DMMM1(a), (b) -DMMM-12 and premised on the grounds on its face. The Applicant/plaintiff filed supplementary affidavit and written submissions dated 25.3.2026 and 24.6.2026 respectively in further support of the motion and opposition of the preliminary objection. 3.The 1st Defendant/Respondent filed a Notice of Preliminary Objection and Replying affidavit both dated 31st March 2026 in opposition of The Applicant’s application dated 24.3.2026 though the 1st Respondent deemed the preliminary objection as part of Replying Affidavit and filed written submissions dated 1.7.2026. 4.The 2nd and 4th Defendants/Respondents filed A Memorandum of Appearance but did not oppose the Application averring not being party to the application. 5.The 3rd Defendant neither entered appearance nor filed replying affidavit or grounds of opposition to the Applicant’s application despite being served. 6.**Plaintiff/Applicant’s case:** 7.The Plaintiff/Applicant deposed that He is the secretary of kizumanzi village subcommittee and a member of kishamba B community Shagalla/kishamba B/”1” being member number 1104 suing in his individual capacity though not consulted by the Defendants when choosing name of the community for registration. He contends that election of the members of the 1st Defendant was conducted in contravention of the law. Further that non-members of kishamba B community Shagalla /Kishamba/B”1” were included as members of the community during member identification process and loosely referred to as interested parties with a view to divesting bonafide members of kishamba B Community of their land. He deposed further that the tendering and bidding process of surveyors to do mapping on the ground was conducted in contravention of the law. Further that the 2nd Defendant colluded with the 1st defendant to defraud the community of its rightful share of the land thereby violating the registration process of the community land. He prayed that the same be dismissed. 8. The plaintiff deposed further that the Registration Certificate issued by the community land Registrar Taita-Taveta County on the12.11.2025 does not have the serial number and its whereabouts is not known. He further deposed in his written submissions dated 24th June, 2026 that the Preliminary Objection as filed by the 1st Defendant/Respondent raises contested issues of fact requiring evidentiary interrogation. 9. The Applicant/Plaintiff deposed further that the present suit raises a distinct cause of action from those in Voi ELCLC/04/2024 and ELCEPJR/E001/2025. He asserted that the parties in Voi ELCLC/04/2024) are not identical being a representative suit, whereas the current suit is filed in an individual capacity. Further that, the suits in Voi ELCLC/04/2024 & ELCEPJR/E001/2025) focused on transitioning of kishamba B Group Ranch to kishamba B Community land while the current suit challenges the registration process of kishamba B Community land alias shagalla/kishamba /B”1”, election and installation of community land management committee members and inclusion of land grabbers as members of kishamba B Community land. 10.The Applicant/Plaintiff cited Articles 22, 40, 258 and 260 of the constitution of Kenya 2010 deposing that he possesses legal standing being a registered member of Kishamba B Community Land and brings the suit in his individual capacity seeking to safeguard the interests of the members of kishamba B shagalla/ kishamaba B”1” Community. 11.The Plaintiff deposed further that he is likely to suffer irreparable loss that cannot be compensated by costs should the application not be allowed and urged the court not to strike out the suit as it discloses triable issues. **12.1st Defendants/Respondent’s case**; 13 The 1st Defendant/Respondent deposed that the Applicant’s suit is Resjudicata having been litigated and settled in Voi elclc4/2024 and Elcjre001/2025. Further that the Plaintiff/Applicant as a member of kishamba B Community Shagalla/Kishamba B’1 has not demonstrated his legal capacity to sue on behalf of the community or its members rendering the suit fatally defective. 14. The 1st Defendant /Respondent submitted that the Plaintiff/Applicant has not exhausted the dispute resolution framework established under the Community Land Act 2016 and Regulation 25 of the Community Land Regulations,2017 invoking the jurisdiction of this court hence this court lacks the jurisdiction to entertain the suit and should be struck out for want of exhaustion of dispute resolution mechanism provided for in regulation 25 of community land regulations of 2017. 15.The 1st Defendant prayed for dismissal of the application of applicant as it is seeking for mandatory injunction to issue against the defendants at the application stage. 16.The Ist Respondent/Defendant Further deposed that the suit is frivolous, vexatious and an abuse of the court process as litigation must come to an end placing Reliance on the decisions of Voi ELCEPJR/E001/2025, where the Court held that a litigant cannot approbate and reprobate by simultaneously challenging a judgment while seeking to enforce it. **17.Analysis and determination:** Having considered the affidavit evidence on record, the Annexures and written Submissions and cited cases by learned counsels for the parties , the following are issues for determination: (a) Whether the suit is barred by the doctrine of Res Judicata. (b) Whether the suit offends the doctrine of exhaustion of statutory dispute resolution mechanisms. (c) Whether the Plaintiff has the requisite Locus Standi to institute these proceedings in his own or a representative capacity. (d) Whether the Plaintiff/Applicant has satisfied the legal threshold for the grant of the interlocutory reliefs sought in the Notice of Motion dated 24th March 2026. (e) Who should bear the costs? 18. Section 7 of the Civil Procedure Act 2010 provides for the doctrine of res judicata as follows: - “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. 19.The Applicant cited the case of **Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd (Civil Appeal 107 of 2010) [2017] KECA 98 (KLR)** while citing Mulla, Procedure Code Act of 1908 16th Edition stipulated that: - The elements of res judicata have been held to be conjunctive rather than disjunctive. As such, the elements reproduced below must all be present before a suit or an issue is deemed res judicata on account of a former suit ; (a) The suit or issue was directly and substantially in issue in the former suit. (b) That former suit was between the same parties or parties under whom they or any of them claim. (c) Those parties were litigating under the same title. (d) The issue was heard and finally determined in the former suit. (e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.” 20.The Applicant/Plaintiff submitted that the parties and cause of action for determination in Voi ELCLC/4/2024 and ELCJRE001/2025 respectively are distinct from the parties and cause of action in the present suit. It is noteworthy that the reliefs sought in VOI ELCLC NO 4/2024 called for transition of kishamba B Community Group Ranch to Kishamba B Community land whereas in the current suit the Plaintiff /Applicant is challenging the process of registration and installation of community land management committee members of kishamba B Shagalla/Kishamba B/’1’. Further that the cause of action presented before court by Applicant/plaintiff arises from implementation of the court’s decree in Voi elclc4/2024 dated 24.9.2024 where the plaintiff herein was not a party. There is no dispute that the suit property kishamba b Shagalla/kishamba B”1” community land in the current suit and VOIELCLC4/2024 is same though parties are different in terms of plaintiffs and Defendants save for the 3rd and 4th defendants in this case. 21.Similarly, implementation of judgement of the court in VOI ELCLC4/2024 dated 25th September, 2024 gave rise to Voi ELCEPJR/E001/2025 where the exparte Applicants sought judicial review orders of certiorari to quash the decision of the Community Land Registrar, Taita Taveta, dated 12th November 2025 for issuing a Registration certificate for Kishamba 'B' Community unilaterally thereby exceeding its statutory mandate. In the case of **John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others (petition 17 of 2025 [2021] KESC (KLR) and Kenya Commercial Bank Ltd & another v Muiri Coffee Estate Ltd & 3 others [2016] KESC (KLR)** the supreme court reaffirmed that a new cause of action arising post judgment does not amount to res judicata. Based on the reasons given above the Court finds that the suit is not Res Judicata. 22.**As to Whether the Doctrine of exhaustion mitigates against the plaintiff/Applicant**, it is trite that Jurisdiction is the foundation upon which courts of law exercise judicial authority as provided in article 159 of the constitution of Kenya 2010 hence the settled principle in the case of **Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR)** that jurisdiction is everything and without it a court downs its tools. 23. The Supreme Court in the case of communications commission of Kenya and 5 others vs Royal Media Services limited & 5 others (2014) kesc(klr)2014 restated that A Court of law derives its jurisdiction from the Constitution, an Act of Parliament or a settled judicial precedent. The 1st Defendant/Respondent submitted that the Applicant contravened regulation 25 of Community land Regulations 2017 by failing to refer the matter to the land Adjudication Officer for hearing and determination prior to invoking the jurisdiction of this court to entertain the matter. 24.The Plaintiff/Applicant in his written submissions urged the court to restrain from striking out the suit as the defendants acted ultra vires the provisions of Community land Act 2016 hence the suit is properly filed before the court for hearing and determination. The plaintiff/Applicant apart from annexing the letter dated 14.3.2026 and 16.3.2026 depicting altercations between Kishumanzi sub village members and Kishamba B community land management committee and casting aspersions on the conduct of community land Registrar Taita/Taveta of overstepping his mandate while issuing the registration certificate of Kishamba B community has not placed any additional material before court that he attempted to approach the land adjudication officer to arbitrate over the matter before filing this suit in court. 25. The community land Act 2016 and regulations 25 of 2017 provide for an elaborate dispute resolution mechanism to be exhausted in case of a dispute between the registered community members and a community or community and another thereby giving effect to article 159(2)© of the constitution of Kenya 2010 which recognizes and promotes the use of alternative dispute resolution mechanism for expeditious disposal of disputes. The Community Land Act,2016 Section 39 provides that: i) A registered community may use alternative methods of dispute resolution mechanisms including traditional dispute and conflict resolution mechanisms where it is appropriate to do so, for purposes of settling disputes and conflicts involving community land. ii)Any dispute arising between members of a registered community, a registered community and another registered community shall, at first instance, be resolved using any of the internal dispute resolution mechanisms set out in the respective community by-laws. iii)Where a dispute or conflict relating to community land arises, the registered community shall give priority to alternative methods of dispute resolution. iv)Subject to the provisions of the Constitution and of this Act, a court or any other dispute resolution body shall apply the customary law prevailing in the area of jurisdiction of the parties to a dispute or binding on the parties to a dispute in settlement of community land disputes so far as it is not repugnant to justice and morality and inconsistent with the Constitution. 26. Section 42(1) of the Community Land Act stipulates, that “Where all efforts of resolving a dispute under this Act fail, a party to the dispute may refer the matter to Court.” 27.This court takes cognizance of Article 162(2)(b) of the Constitution of Kenya 2010, which clothes Environment and land court with exclusive jurisdiction to deal with disputes relating to the environment and the use and occupation of and title to land. 28.Similarly, Section 13 of the Environment and Land Court Act 2011 expounds on the jurisdiction of Environment and land Court as follows: - “(1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. (2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes— (a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; (b) relating to compulsory acquisition of land; (c) relating to land administration and management; (d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and (e) any other dispute relating to the environment and land 29.From the foregoing it is evident that disputes emanating between members of a registered community or registered community and another registered community shall be referred to the land Adjudication Officer for determination before invoking the jurisdiction of environment and land court. In the circumstances I find that the Plaintiff/Applicant failed to exhaust the Statutorily provided forum for internal dispute resolution forum among the members of Kishamba B community Shagalla/Kishamba B “1” prior to filing the suit herein. **30 locus standi.** 31*.* The 1st Defendant/Respondent urged the court to strike out the plaintiff’s suit for being filed without leave of the court. The Plaintiff/Applicant urged the court to find that he has locus to institute the case against the Defendants having filed the suit in his own capacity pursuant to Article 22,40,258 and 260 of the Constitution of kenya 2010. Article 22 of the constitution of Kenya 2010 mandates every person to institute court proceedings on a claim that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. 32.A perusal of The Plaintiff/Applicant’s Plaint and Notice of motion both dated 24th March, 2026 disclose that the Plaintiff/Applicant is suing in his individual capacity as a member of kishamba b community or Shagalla/kishamba /b/”1”and not as a representative of Kishamba B Community or Shagalla/ kishamba b”1 hence invoked articles 40, 159(2)(d) and 258 of the constitution of Kenya 2010 which donates locus standi to him to institute the suit as against the Defendants citing infringement of his constitutional rights to kishamba B Community land through the actions of the Defendant’s herein. The Plaintiff /Applicant is the secretary of kizumanzi village subcommittee and a member of kishamba B community land vide membership number 1104 as per the members register annexed on record hence mandated under article 258 of the constitution of Kenya 2010 collectively or individually to contest any dealings in community land where he believes that his rights are being, have been or are likely to be infringed. 33.The Applicant equally invoked article 159 (2)(d) of the constitution of Kenya 2010 which provides that justice shall be administered without undue regard to technicalities. Even though Order 1 rule 8 of the civil procedure rules,2010 calls upon a party filing a representative suit to seek leave of the court to file a representative suit, Article 40 of constitution of Kenya 2010 grants leeway to the Applicant and any other person to file a claim in his individual capacity on the claim that his constitutional right to property or community land is threatened placing reliance on the case of Malindi Civil Suit No. 168 Of 2012(Bahola Mkalindi Rihigho v. Michael Seth Kaseme & 2 Others where the Court held that members of a community possess both individual and collective rights over community land hence any member whose rights or interests in community land are threatened or infringed has the legal standing to institute proceedings to protect those rights, irrespective of whether the infringement affects the member personally or the community as a whole. Based on the emerging jurisprudence and constitutional provisions cited on record the Applicant is mandated to institute the suit against the Defendants in his individual capacity. **34.Whether Applicant is entitled to the reliefs sought:** 35.The Applicant in his motion and supplementary affidavit dated 24.3.2026 and 16.4.2026 respectively urged the court to grant prayers e, f and g of the motion thereof on grounds that it is not opposed by the Defendants urging the court to be guided by the case of VOI ELCA 009 OF 2023: COSMAS KODI AKHULA = VERSUS = BONFACE NZUKI MUTIA & ANOTHER and reiterating that the Defendants are in breach of the community land Act 2016. He urged the Application and suit raises triable issues hence not frivolous and should not be struck out citing the case of Mercy Nduta Mwangi t/a Mwangi Kenga'ara & Co. Advocates v Invesco Assurance Company Limited, Machakos Civil Appeal No. 110 of 2016 . He urged the court to dismiss the preliminary objection filed by 1st Defendant as it does not raise pure points of law as provided for in the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. 36.The 1st Respondent submitted that the Applicant is seeking for mandatory orders of injunction to issue against the Defendants to stop them from discharging their functions and the prayers are convoluted which are not available to the Applicant/plaintiff. 37. It is trite that Orders of injunction are equitable reliefs granted in favor of Applicant upon proof of principles set out in the case of Giella vs Casman Brown limted(1973) EA being “First an applicant must show a prima facie case with a probability of success, secondly an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.” 38.A mandatory Injunction cannot be granted at interlocutory stage unless in the clearest of circumstances. The Applicant is calling for orders restraining the officials of Defendants to be stopped from discharging their duties which will paralyze the operations of Kishamba B community and implementing the court order in Voi elclc4/2024. The reliefs herein sought cannot be issued without clearest proof of exceptional circumstances placed before the court by Applicant hence not available to the Applicant/Plaintiff despite having filed the suit prematurely before this court for hearing and determination as stated above hence dismissed. 39.Having held that the suit is prematurely filed before court for want of exhaustion of statutorily provided dispute resolution mechanism body under the Community Land Act 2016 and Regulation 25 of community land Regulations 2017, the suit is hereby struck out. 40. Costs follow events pursuant to section 27 of Civil Procedure Act 2010 though awarded at the discretion of the court based on circumstances of each case. The Applicant /Plaintiff and 1st Defendants are members of Kishamba B community land order that each party bears own costs of the suit. **Final Orders** 41. Having considered the matter in its entirety it is ordered that the application and suit is dismissed and struck out with each party to bear own costs of the suit. 30 days right of Appeal granted. **Delivered, dated and signed in open court at Voi This 8.7.2026 by:** **J. A. ORWA** **JUDGE** **In the presence of:** **Mr. Mwawasi for the Plaintiff/Applicant** **Mr. Mburu for the 1st Defendant** **Mr. letisia Court Assistant** **But absence of the 2nd 3rd and 4th Defendants/Respondents. and Attorney General.**