https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5317

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT KWALE** **ELC NO. E136 OF 2025** 1. **BEJA NGOJA MWERO** **2. SALIMU NGOJA MWERO** **3. NGOME NGOJA MWERO---------------------------------PLAINTIFFS** **- VERSUS -** **1.NYAWA NYALE NYAWA** **2. NYUNDO M'MBETSA** **3. WATO NYUNDO** **4. MBUNDUGU NTUITDO** **5. TUNDO NYUNDO** **6. KILONZO MUSILI** **7. MUMBO CHOMBO** **8. MANGALE MUTERO NGOJA** **9. MWAKALU NYAWA…………………………………DEFENDANTS** **RULING** 1. **Introduction** 2. Before the Honourable Court was a Ruling in relation to the Notice of Motion application dated 19th December, 2025 filed by *BEJA NGOJA MWERO, SALIMU NGOJA MWERO and NGOME NGOJA MWERO,* the Plaintiffs/Applicants herein. It was brought pursuant to the provisions of Sections 1A, 1B, 3, 3A and 63 ( c ) and 63 ( e ) of the Civil Procedure Act, Cap. 21, Order 40 Rules 1, 3 and 4 and Order 51 ( 1 ) of the Civil Procedure Rules, 2010 and Article 159 of the Constitution of Kenya, 2010 and all other enabling provisions of law. 3. Upon service, the application was opposed through filing of Replying Affidavit sworn by the 1st Defendant/Respondent, *NYAWA NYALE NYAWA*. 4. Nonetheless, from the record, it is prudent to note that on 12th March, 2026, the 1st Defendant/Respondent informed court that the matter was still before the Land Adjudication Officer as per the provisions of Sections 26, 27,28 & 29 of the Land Adjudication Act, Cap. 284. Pursuant to this, it was instructive to note that a Preliminary Objection dated 21st January, 2026 was raised with regards to the above facts. Subsequently, the Honourable Court opined that it be prudent to as a matter of priority that the Preliminary Objection be dealt with exclusively. Thus, that is the gist of this Ruling whatsoever. 5. **The case of the Plaintiffs/Applicants** 6. The Plaintiffs/Applicants sought for the following orders:- 7. ***Spent.*** 8. ***That this Honourable Court be pleased to issue an order of temporary injunction restraining the Defendants/Respondents by themselves, their agents, servants, employees, proxies and or any other person howsoever acting through them from quarrying, advertising for sale, demarcating, disposing off, selling, transferring, leasing, charging or in any other way whatsoever dealing with all that parcel of land known as plot number 403 Mazola Adjudication Section pending the hearing and determination of the Plaintiff's/Applicant's Application inter parties.*** 9. ***That this Honourable Court be pleased to issue an order of permanent injunction restraining the Defendants/Respondents by themselves, their agents, servants, employees, proxies and/or any other person howsoever acting through them from quarrying, advertising for sale, demarcating, disposing off, selling, transferring, leasing, charging or in any other way whatsoever dealing with all that parcel of land known as plot number 403 Mazola Adjudication Section pending the hearing and determination of this suit.*** 10. ***That this Honourable Court be pleased to order that the officer commanding police Division-Kinango [O.C.S] Kinango to ensure compliance with the orders of this court in terms of prayers 1 and 2 above.*** 11. ***That the costs of the Application be borne by the Defendants/Respondents jointly and severally.*** 12. The application was premised on the grounds, testimonial facts and averments made out under the 15 Paragraphed supporting affidavit sworn by BEJA NGOJA MWERO, together with annextures marked as 1, 2, 3, 4, 5, 6, 7, 8 , 9, 10, 11, 12, 13 and 14 annexed hereto. He averred as follows that:- 13. He was the Plaintiff/Applicant herein and hence competent to swear this affidavit and had authority to represent the other Plaintiffs. 14. The Plaintiff/Applicant was the rightful and beneficial owner of Plot number 403 Manzala Adjudication Section measuring 3,500 acres situated at Bang'a location Kinango as per a copy of a letter dated 26th March, 2024. 15. The suit property herein was not community land having being awarded to us by the elders on or about the 24th July, 2002 and adopted by the Senior Resident Magistrate Court on 3rd October, 2003. 16. Prior to the land survey exercise the local administration announced to all area residents to attend a meeting which was also attended by the Land Adjudication Officer among other community members. In the meeting the Chief announced to all in attendance, the Defendants included that the government would undertake the demarcation exercise of all the land in Mazola Sub - location Puma location and requested all the people to be ready with their ownership documents when the land surveyors come to the ground. 17. The Government surveyors proceeded with the exercise where they demarcated the whole area including the suit property which the Plaintiff/Applicant pointed out the boundaries and there was not any complaint by any of the Defendants at that time. 18. As required by law that any aggrieved party should file his or her complaint within 14 days from the date of demarcation. 19. The Defendants especially the 1st Defendant instead of filing an objection within 14 days decided to file suit namely ***ELC NO. E043OF 2022.*** 20. The 1st Defendants/Respondents concealed material facts from this court and never informed the court that suit No. EO45 of 2O22 was struck off. 21. The 1st Defendant mislead the court by filing case number ***ELC MISC/E0O9/2O24*** by concealing material facts that the issue had already been decided by a court of competent jurisdiction and was awarded orders to file an objection within 30 days which order he was misusing by trespassing on the said suit land. 22. The Defendants had trespassed on the suit property and had started excavating ballast, building stones and cutting trees for firewood even after been informed by the relevant authorities to cease their illegal activities through various correspondences. 23. The Defendants even after being informed to cease their illegal activities on the suit land had ignored and/or refused to comply. 24. The Applicants right to own property and or be heard by a court of competent jurisdiction would be diminished if the Plaintiffs/Respondents was allowed through their illegal actions to invade the suit property and start demarcations. 25. They urged for the application and the prayers sought granted accordingly. 26. **The responses by the 1st Defendants/Respondents.** 27. In opposing the application, the Respondents filed an 8 Paragraphed affidavit sworn by NYAWA NYALE NYAWA, the 1st Respondent. The deponent deponed to as follows that:- 28. He had the authority to prosecute/plead on behalf of the other 8 Defendants/Respondents herein. 29. The Application by the Applicants herein was incompetent, improper, misconceived and otherwise an abuse of the Court process and time. 30. The Applicants was trying to seek the Court sympathy by dodging the Land Committee case filed on the 27th day of June, 2025 which was pending hearing. 31. This Honorable Court lacked the requisite jurisdiction to hear, and issue any orders to that effect as the Parcel of land 403 Mazola Adjudication section was still under adjudication and there was a pending case at the Mazola Land Adjudication Committee. 32. The application and the suit was bad in law as the Applicant never sought Consent from the Mazola Adjudication Officer thus it offended the provision Section 30 (1) of the Land Adjudication Act, Cap. 284. For that reason, this Court had no otherwise but to pen - down and refer the matter to the Mazola Land Adjudication Committee for final determination of this matter. 33. The Applicant was misleading this Court by attaching old pictures captured away and outside the suit property in order to establish a case. Reasons whereof the deponent asked the court to summarily dismiss this Application and entire suit for lack of Jurisdiction. 34. Further that the Honorable Court be pleased to refer the matter to the Mazola Land Adjudication Committee for hearing and final determination and lastly costs of this suit. 35. **The Notice of Preliminary Objection** 36. The Respondents further filed a preliminary objection to the application and suit. The objection was premised upon the following grounds that:- 37. The application was incompetent, improper, misconceived and otherwise an abuse of the Court process and time. 38. This Honorable Court lacked the requisite jurisdiction under Section 30 (1) of the Land Adjudication Act, Cap. 284. 39. The Application also offended the provision of Sections 26 and 29 of the Land Adjudication Act, no. 3 of 2012 as there was a pending land committee case filed on the 27th June, 2025 vide court order ELC Misc. E009 of 2024 dated 19th June, 2025. 40. **The Further Affidavit by the Plaintiffs/Applicants** 41. In response to the Replying Affidavit and the Preliminary Objection as raised by the Respondents, the Plaintiffs/Applicants filed a further affidavit in a brief rejoinder to the issues raised. They stated that:- a). The Replying Affidavit and Preliminary Objection dated 21st January, 2026 amounted to an abuse of the court process on the reasons following that: - 1. The issue herein was not whether adjudication was ongoing or not. 2. The suit property herein was not community land as the issue had already been settled by the elders. 3. The demarcation was done by the local administration and the land was demarcated and recorded to the Plaintiff vide a letter dated 26th March, 2024. b). The said demarcation was confirmed vide a suit fiIed by the 1st Respondent namely “***ELC case No. EO43 of 2022”*** whereby the Sub - County Land Adjudication and Settlement Officer Kinango who was the 7th Respondent in the said suit namely Davis M. Njeru filed a Replying Affidavit confirming it. c). The Applicants right to natural justice was hindered as the land committee case filed on 27th June, 2025 which was alleged pending hearing emanated from the orders granted vide an application dated 21st August,2024 vide “***civil suit No. ELC MISC EOO9 2024”*** filed by the 1st Respondent which was never served upon the Applicants and which information he was aware of. d). The Respondents were misleading this court and the lands committee by informing this court that the Respondents were JOTO CHIGODI and MBANDI JULO and that the complainant was JUMA NYAE KENGO who were strangers to the whole issue vide a letter dated 7th July, 2025 attached in the Replying Affidavit of the Respondents. e). The issue of jurisdiction could not arose as the orders for another adjudication were obtained through the back door without the Applicants knowledge and the Respondents knew that the issue had already been settled through a court of competent jurisdiction and that JOTO CHIGODI and MBANDI JULO were strangers and a figure of imagination created by the Respondents to enable them be granted the orders. d). If indeed the Applicants were served with the suit papers in regard to the civil case of ***“ELC MISC EOO9 of 2024***” let the Respondents provide proof of service upon the Applicants of the suit papers. e). The court has jurisdiction as Section 30 (1) could not apply when the orders were obtained through false information and withholding crucial information. d). The Preliminary Objection dated 21st January,2026 filed by the Respondent was misconceived, premature, fatally defective and an abuse of the court process. e). The right to be heard on merits was a fundamental right under the constitution. The Preliminary Objection was not anchored on any law emanating from proceedings on record and was only meant to derail the suit from proceeding and should be dismissed. f). The Applicants prayed that the orders sought herein be granted as the Defendants/Respondents would not suffer any prejudice if the orders sought herein was granted. 1. **Submissions** 2. On 12th March, 2026 while all the parties were present in Court, directions were issued to have the application dispensed off by way of written submissions. Consequently, both parties herein complied as summarised here below. Thereafter, a ruling date was set for 16th June 2026. Eventually, it was delivered on 31st July, 2026 accordingly. 3. **The Written Submissions by the Applicants** 4. The law firm of Messrs. Chebukaka & Associates Advocates filed submissions dated 6th May, 2026 on behalf of the Applicants. Mr. Chebukaka Advocate commenced his submissions by providing a brief background of the matter, The Learned Counsel averred that this was a brief summary of the discussions therein. He held that the Preliminary Objection as filed by the Respondents was not merited as it raised contentious issues of facts and not pure points of law. According to the Counsel, the provisions of Section 26 of the Land Adjudication Act, Cap. 284 there was the need for the court to verify and confirm if there was an Adjudication Register and or if there were any irregularities and whether or not the adjudication officer had in writing stated in what aspect he considered the adjudication register to be incorrect or incomplete. 5. The Learned Counsel submitted that the court order in Environment and Land Court Miscellaneous No. E009 of 2O24 as indicated in the Preliminary Objection was not furnished to this court. Further, the Plaintiffs in this suit were not a party to Misc. E.L.C case E009 of 2024. The issue being contested called for this court to request and order the Respondents to supply and file with the court pleading in the Misc. suit in order for this court to determine whether or not the Plaintiffs herein were a party to it and which was an issue of fact and not the law. 6. The Counsel averred that there was no current pending dispute before the Land Adjudication Officer between the Plaintiff herein and the Respondents. Any contest or assertion that there was a dispute in response to this fact makes that determination an issue for a substantive application and not a Preliminary Objection. The adjudication process was completed and closed and the Plaintiffs were confirmed the owners of the suit being plot number 403 Mazola Adjudication Section vide a letter dated 26th March, 2024. 7. On the application for injunction. The Learned Counsel contended that the Applicants had proven their case on a balance of probability. Clearly, they had shown they would suffer irreparable injury that could not be compensated by an award or damages as they were allocated the land legally and they were not aware of Misc.E.L.C suit No. EOO9 of 2O24 and which they were not parties. The Respondents were merely on a fishing expedition which would on the long run prove futile. 8. In conclusion it was submitted that the Respondents Preliminary Objection had no merits and ought to be dismissed with costs to the Applicants. 9. **The Written Submissions by the Respondents** 10. From the very onset, it will be noted that the Respondents were acting in person. They filed submissions dated 9th April, 2026 before this court. The submissions mainly addressed the issue of the jurisdiction of this court to determine the dispute before it given that the suit property was still under adjudication. There was no consent had been obtained from the Land Adjudication Officer as provided for in law and thus the court was devoid of jurisdiction to determine the suit. reference was made to the holding in the case of:- ***“Moses Barkutwo & 3 others – Versus - District Land Adjudication & Settlement Officer Elgeyo - Marakwet County & another; Moses Barmoto & 11 others (Interested Parties) [2021| keelc 4161 (KLR)*** 11. It was further submitted that there was an elaborate dispute resolution mechanism providing for disputes arising from land under adjudication The Applicants had not demonstrated that they had exhausted these statutory mechanisms. The Respondents stated that where a statute provides for a specific dispute resolution mechanism, that mechanism must be exhausted before approaching the court. See the case of:- “***Yusuf Beja Mgala & another – Versus - Beja & 4 others [2025] KEELC 6912 (КLR”.*** The court was urged to uphold the preliminary objection and to dismiss the application and suit. 12. **Analysis and Determination** 13. I have carefully read and considered the pleadings herein by both the Applicants and Respondents, the myriad of cases cited herein by the parties, the relevant provisions of the Constitution of Kenya, 2010 and statutes. 14. As already indicated, the court will determine both preliminary objection and application consecutively as the issues raised were different. In order to arrive at an informed, just, equitable and reasonable decision, the Honourable Court has four (4) framed issues for its determination. These are:- 15. ***Whether the issues raised by the Respondents meet the threshold for a Preliminary Objection based on Law and Precedents.*** 16. ***Whether the Preliminary Objection dated 21st January, 2026 by the Respondents is merited*** 17. ***What orders should issue*** 18. ***Who bears the cost of the application and preliminary objection?*** ***ISSUE No. a). Whether the issues raised by the Respondents meet the threshold for a Preliminary Objection based on Law and Precedents.*** 1. Under the sub – heading the Honourable Court will proceed the nature, meaning and Scope of the concept Preliminary Objection. According to the Black Law Dictionary, 11th Edition, defines a Preliminary Objection as being:- ***“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”*** 1. In other words that if an objection was upheld would render further proceedings before the tribunal impossible or unnecessary. Courts have various defined Preliminary objection as one that consists of a point which has been pleaded or which arises by clear implication out of pleadings and which if argued as a Preliminary point my dispose of the suit. 2. The above legal preposition has been made graphically clear in the now famous case of ***“Mukisa Biscuits “Supra”)***, the court observed 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.”*** 1. The Court went further to note 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 has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop”.** 1. This statement of the law has been echoed time and again by the courts: see for example, ***“Oraro – Versus - Mbaja [2007] KLR 141”***. The same position was held in the case of ***“Nitin Properties Ltd – Versus - Jagjit S. Kalsi & another Court of Appeal No. 132 of 1989[1995-1998] 2EA 257”*** where the Court held that:- ***“A preliminary Objection raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any facts has to be ascertained or if what is sought is the exercise of Judicial discretion.”*** 1. Additionally, in the case of ***“United Insurance Company Limited – Versus - Scholastica A Odera Kisumu HCC Appeal No. 6 of 2005(2005) LLR 7396”***, the Court held that:- ***“A preliminary Objection must be based on a point of law which is clear and beyond any doubt and Preliminary Objection which is based on facts which are disputed cannot be used to determine the whole matter as the facts must be precise and clear to enable the Court to say the facts are contested or disputed .”*** 1. I have further relied on the decision of ***“Attorney General & Another – Versus - Andrew Mwaura Githinji & another [2016] eKLR”*** as it explicitly extrapolates in a more concise and surgical precision what tantamount to the scope, nature and meaning of a Preliminary Objection *inter alia:*- ***(i) A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.*** ***(ii) A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and*** ***(iii) The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute.*** 1. In the instant case, the Preliminary Objection raises weighty jurisdictional questions of this Court vis – vis the provision of Land Adjudication Act, Cap. 284. The objection is founded on the notion that the Applicants herein have failed to fully exhaust the dispute resolution mechanism under Section 30 of the Land Adjudication Act and as such the suit is unmerited having been instituted in a court devoid of jurisdiction to hear and determine it. The provision of Section 30 provides that: - **“(1) Except with the consent in writing of the adjudication officer, no person shall institute, and no court shall entertain, any civil proceedings concerning an interest in land in an adjudication section until the adjudication register for that adjudication section has become final in all respects under section 29(3) of this Act. [Rev. 2012] Land Adjudication CAP. 284 L5 - 17 [Issue 1].** **(2) Where any such proceedings were begun before the publication of the notice under section 5 of this Act, they shall be discontinued, unless the adjudication officer, having regard to the stage which the proceedings have reached, otherwise directs.** **(3) Any person who is aggrieved by the refusal of the adjudication officer to give consent or make a direction under subsection (1) or (2) of this section may, within twenty-eight days after the refusal, appeal in writing to the Minister whose decision shall be final.”** 1. It is trite law that jurisdiction is everything, and without it, the Court cannot take one more step in the case. In the celebrated case of ***“Owners of Motor Vessel ‘Lillian S’ – Versus - Caltex Oil (Kenya) Limited (1989) eKLR”***, the Court held that: ***“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings…”*** 1. Similarly, the Supreme Court in the case of ***“Samuel Kamau Macharia & Another – Versus - Kenya Commercial Bank Limited & 2 Others [2012] eKLR”*** pronounced itself thus: ***“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. …. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation….”*** 1. In view of the fore – going, I discern that the issue of jurisdiction is an issue of law and as such the preliminary objection raised herein is merited accordingly. ***ISSUE No. b). Whether the Preliminary Objection dated 21st January, 2026 by the Respondents is merited*** 1. Under this Sub – title, the Honourable Court shall be assessing wther the objection as any merit or not. In so doing, I have perused the annextures relied upon by the Applicants and which includes the letter dated 26th March, 2024 by Davis M Njeru the Sub County Land Adjudication/Settlement Officer Kinango Sub County, it is clearly put in black and white that the suit parcel belongs to the three Applicants herein. The court has further been informed of the elders verdict granting the applicants herein the suit property. It is noted that the verdict was later adopted by the court through Hon. L M Mbatia SRM as an award of the court on 3rd October, 2003. 2. The elders verdict in the land disputes proceedings of 11th September, 2001. Accordingly, the land belongs to Beja Ngoja because it was confirmed that most neighbours within the neigbourhood acknowledged the fact that Bekamwenga stayed in that area and was buried there and that area and was buried there and that there are people who were given land by Bekamwenga himself 3. The elders were shown very old mango trees which belongs to Beja’s father - Mzee Bekamwenga 4. Ngome Ngoja to stick to the area which he was given by Beja and the clan elders and not to extend the boundaries to other parts which he was not given. 5. I further acknowledge having perused the letter dated 22nd September, 2014 and which confirmed that the Madzola Adjudication Section was declared an adjudication section. Clearly, this information confirms that the suit property is under the land adjudication regime and from my understanding of it, it is clear that having already made a decision in terms of ownership of the property, the adjudication process has been dealt with in finality. 6. This Court has time without number stated the land adjudication process is governed by the Land Adjudication Act, Cap. 284. Ideally, this is one piece of legislation from the provision of Sections 1 to 30 of the Act that graphically provides such an elaborate and comprehensive mechanisms of resolution of intern disputes pertaining to the process, It for these reasons that the Court has carefully steered off from interfering with this process unless its where a party is seeking for prerogative orders under Judicial Review process emanating from the appeals by the Minister of Lands under the provision of Section 29 or filed Civil Suit based on the dictum of Section 30 of the Act. 7. Thus, for the process to be re - opened as to the rights and interest on the suit property in terms of ownership, then it has to first go before the Land Adjudication Officer and other relevant legal organs as enshrined in the Act to challenge inaccuracies in demarcation, ownership or boundaries. In the event that the parties are dissatisfied with the decision of the adjudication officer then an appeal is to be filed through the minister. as provided for in law. Under the Land Adjudication Act, the highest forum for determining issues of ownership or title to land under adjudication is the Minister who is defined as the Cabinet Secretary responsible for matters relating to land. 8. As already stated, the Minister is empowered under the provision of **Section 29 (4) of the said Act**to delegate by notice in the Gazette, the powers to hear appeals and his duties and functions under the Section to any public office by name or to the person for the time being holding any public officer specified in such notice. Under the provision of Section **29 (1) of the Act** it is provided that:- **“…the Minister shall determine the appeal andmake such order thereon as he thinks just and the order shallbe final.”** 1. The superior courts have in various decisions, including the Court of Appeal stated this legal preposition. For instance, in the case of:- “**Watuku Mutsiemi Watuku & Another – Versus - Republic & 5 Others”**and this court in “**Onesmus Daniel Masumbuko & Others – Versus - Augustino Baya Thoto [2019] eKLR”**, held that the Minister’s decision is final and not amenable for appeal to this court, unless when moved through invoking the court’s judicial review jurisdiction. 2. It is noted that this court on 19th June, 2025 granted the Respondents leave to file an objection with the Mazola Land Adjudication Committee. As has been stated by the Respondents, the matter is pending before the committee. 3. With the above in mind, I wish to refer to the Supreme Court of Kenya dictum in the case of “***Bernard Murage – Versus - Fine Serve Africa Limited & 3 others [2015] eKLR”*** where the apex court explained the importance of “***the doctrine of exhaustion***” of remedies in the following words: - ***‘Where there exists an alternative remedy through statutory law, then it is desirable that such statutory remedy should be pursued first.***' 1. The doctrine was aptly captured by the Court of Appeal in the case of:- *“****Republic – Versus - National Environment Management Authority Ex parte Sound Equipment Limited”****,* where the Court of Appeal observed: - **“... Where there was an alternative remedy and especially where Parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted and that in determining whether an exception should be made and judicial review granted, it is necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it ...”** 1. Further in the case of:- “***Speaker of the National Assembly – Versus - James Njenga Karume [1992] eKLR”****,* where the Court of Appeal held that: - **“… In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. We observed without expressing a concluded view that order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions....”** 1. When tasked with determining issues on jurisdiction similar to the ones in the present suit,Okongo J. commenting on the role of the Court vis-a-vis that of the adjudicating bodies under the Act, in the case of:- *“****Tobias Achola Osindi & 13 others – Versus - Cyprian Otieno Ogalo & 6 Others [2013] eKLR”****,* held as follows:- ***“The whole process leading up to the registration of land as aforesaid is undertaken by the Adjudication Officer together with other officers appointed under the Act for that purpose. It follows from the foregoing that once an area has been declared an adjudication area under the Act, the ascertainment and determination of rights and interests in land within the area is reserved by the law for the officers and quasi-judicial bodies set up under the Act…The Act has given full power and authority to the Land Adjudication Officer to ascertain and determine interests in land in an adjudication area prior to the registration of such interest. As I have mentioned above, the process is elaborate. …….. The court has no jurisdiction to ascertain and determine interests in land in an adjudication area. In my view, the role of the court is supposed to be supervisory only of the adjudication process. The court can come in to ensure that the process is being carried out in accordance with the law. The court can also interpret and determine any point or issue of law that may arise in the course of the adjudication process. The court cannot, however, usurp the functions and powers of the Land Adjudication Officer or other bodies set up under the Act to assist in the process of ascertainment of the said rights and interests in the land...”*** 1. However, the Applicants state that there are special circumstances in this case that make viable the exemption to the doctrine of exhaustion. The Applicants state that the Respondents have trespassed into the suit parcel and are making developments thereon and are further excavating ballast, building stones and cutting down trees on the suit parcel. They therefore seek for orders of injunction against them. It is stated that the nature of the orders sought cannot obtain by the process in the Land Adjudication Act. 2. What follows and which seems to be the only issue is whether there arise any special circumstances that surpass the strictness deployed in the doctrine of exhaustion. The Court in the case of:- *“****William Odhiambo Ramogi & 3 others – Versus - Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested parties) (2020) eKLR”*** outlined the exceptions to the rule as follows:- **“60. As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.** **61. The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Limited – Versus - Nairobi County Government & 2 others [2018] eKLR.** **62. In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.”** 1. From the above, what can be deduced is that it is necessary for the court to look carefully at the suitability of the dispute mechanism in the context of a case to case basis in making its determination. Indeed, every case carries with it different circumstances as compared to another. Where the adequacy and availability of the mechanism is deemed wanting this creates an exceptional case that allows the Court to intervene. This was well captured in the case of:- *“****Krystalline Salt Limited – Versus - Kenya Revenue Authority (2019) eKLR”***where it was held that:- **“What constitutes exceptional circumstances depends on the facts and circumstances of the case and the nature of the administrative action at issue. Thus, where an internal remedy would not be effective and/ or where its pursuit would be futile, a court may permit a litigant to approach the court directly. So too where an internal appellate tribunal has developed a rigid policy which renders exhaustion futile.** **…this court interprets exceptional circumstances to mean circumstances that are out of the ordinary and that render it inappropriate for the court to require an applicant first to pursue the available internal remedies. The circumstances must in other words be such as to require the immediate intervention of the court rather than to resort to the applicable internal remedy.”** 1. Despite the above cases being hinged on judicial review, I follow suit on the basis that the Applicants suit is premised majorly on their right to ownership of property. It is my humble finding accordingly that the application of the doctrine of exhaustion in the circumstances of this case justifies its exemption. Evidence has been tendered to confirm that the suit was issued to the Plaintiffs herein, see the letter dated 26th March, 2024 by Davis M Njeru the Sub County Land Adjudication/Settlement Officer Kinango Sub County. The court must therefore assume jurisdiction to ensure the ends of justice are met for it is its mandate to serve justice. 2. In the words of *“****Chief Justice Marshall of the U.S. Supreme Court in Cohens – Versus - Virginia 19 U.S. 264 (1821)”*** held that*:*- ***“It is most true that this Court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is exercise our best judgment, and conscientiously perform our duty.”*** 1. As it stands trespass is on the part of the Defendants, it is upon them to proof that the allocation was illegal or unlawful but that cannot be at this particular phase of litigation. The Applicants are entitled to protection of their rights to the property once they present a prima facie case pending a full hearing. It is in the interest of justice that I declare such to be special circumstances which ought to lead to an exemption of the doctrine of exhaustion. ***ISSUE No. c). What orders should issue*** 1. The court has considered the fact that there is a pending matter between the parties before the Mazola Adjudication Committee. Infact it is through this court’s orders of 19th June, 2025 that leave was granted for filing of an objection before the Mazola land adjudication committee. However, the court is very much alive to the concerns by the Applicants on the degradation of the land through the Respondents activities and which has necessitated the injunction application. In the interest of justice, this court opines that it will be proper to issue status quo orders and stay of the instant proceedings while awaiting the verdict of the committee. This will ensure that the principles of the doctrine of exhaustion are upheld and secondly that the suit parcel is preserved. 2. The court is apprehensive that any other orders will automatically lead to the breach of “***the doctrine of sub judice”.*** It is therefore prudent to let justice run its course through the legally stipulated procedures. ***ISSUE No. d). Who bears the cost of the application and Preliminary Objection?*** 1. It is trite law that the issue of costs is at the discretion of the Court. Costs mean the award that is granted to the party at the conclusion of legal action or proceedings of any litigation. The Proviso of Section 27 of the [Civil Procedure Act](https://new.kenyalaw.org/akn/ke/act/1924/3), Cap. 21 stipulates that costs follow the event. By the event is the result of the legal action. 2. In the case of: ***“Reids Heweet & Company – Versus – Joseph AIR 1918 cal. 717 & Myres – Versus – Defries (1880) 5 Ex. D. 180”,*** the House of the Lords noted:- ***“The expression “Costs shall follow the events” means that the party who, on the whole succeeds in the action gets the general costs of the action, but where the action involves separate Issues, whether arising under different causes of action or under one cause of action, the word ‘event’ should be read distributive and the costs of any particular Issue should go to the party who succeeds upon it…..”*** 1. Having regard to the fact that both the application and the Preliminary Objection partly succeed, it is proper that each party bears its own costs. 2. **Conclusion and Disposition** 3. Consequently, upon conducting an elaborate analysis of the issues set out herein, this Honourable Court based on the Principles of the Preponderance of Probabilities and the balance of convenience, the following orders were granted:- 4. **THAT the Preliminary Objection dated 21st January, 2026** **be and is hereby found to be partially meritorious and hence sustained.** 5. **THAT for the sake of sustaining Natural Justice, Equity and Conscience, there be stay of proceedings in this matter pending the exhaustion of the dispute resolution process before the Mazola Land Adjudication Committee with regards to the instant dispute.** 6. **THAT an order of status quo be and is hereby made in the specific terms that there shall be no activities on the parcel relating to development of new structures, excavation of murram and building stones or cutting down of trees pending the process mentioned above.** 7. **THAT to avoid any breach of peace, there shall however be no interference in terms of occupation of the suit property for the parties who dwell on the same.** 8. **THAT the matter to be mentioned before this Honourable Court on 10th November, 2026 to ascertain and confirm the progress made on the dispute resolution as stated herein.** 9. **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 ……31ST ……. DAY OF ………JULY …….2026** **………………………………** **HON. MR. JUSTICE L.L NAIKUNI,** **ENVIRONMENT & LAND COURT** **AT** **KWALE** **Ruling delivered in the presence of: -** 1. Mr. Daniel Disii, the Court Assistant. 2. Mr. Nyawa Nyali Nyawa Advocate for the 1st Defendant. 3. Mr. Tundo Nyundo Advocate for the 5th Defendant. 4. Mr. Kilonzo Musili Advocate for the 6th Defendant. 5. Mr. Mangale Mwero Ngoja Advocate for the 8th Defendant. 6. No appearance for the Plaintiff, 2nd, 3rd, 4th, 7th & 9th Defendants.