Ndegwa & 6 others v Uhutta Properties Ltd & 3 others (Environment and Land Case E076 of 2025) [2026] KEELC 5256 (KLR) (31 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT KWALE** **ELC CASE NO. E076 OF 2025** **ELIAS TSIMBA NDEGWA…………………………… 1ST PLAINTIFF** **NDIMIRO NDEGWA MWAGARI…………………… 2ND PLAINTIFF** **YAWA NDEGWA MWAGARI…………………………. 3RD PLAINTIFF MWANGADU YAWA…………………………………… 4TH PLAINTIFF** **MLAI MREMA MLAI ....................................... 5TH PLAINTIFF MAMBO MREMA WANDUMO ..........................6TH PLAINTIFF NZUGA NZUKI WAMLAI ...................................7TH PLAINTIFF –VERSUS -** **UHUTTA PROPERTIES LIMITED ................... 1ST DEFENDANT** **SOUTH SAMBURU GROUP RANCH ................ 2ND DEFENDANT LAND REGISTRAR KWALE COUNTY...............3RD DEFENDANT** **THE DIRECTOR OF SURVEY ....................... 4TH DEFENDANT** **RULING** 1. **Introduction** 2. The Ruling by this Honourable Court relates to the Preliminary Objection dated 7th March, 2026 raised *UHUTTA PROPERTIES LIMITED* by the 1st Defendant*.* The Objection holds for the dismissal and striking out of the Plaintiffs. These were the grounds that: - 3. The suit was defective, premature, incurably defective and offends the doctrine of exhaustion wherein the Plaintiffs failed to follow the due process provided for when a party is seeking to challenge the decision of the National Land Commission, which could only be through Judicial Review Proceedings and not the proceedings herein. 4. Pursuant to Order 1 Rule 13 of the Civil Procedure Rules, 2010 the Plaintiffs lacked the requisite “***locus standi”*** to institute this suit as they had not demonstrated any legally recognizable interest, title and right over all that parcel of land known as LR No. Kwale/South Samburu/86 nor lawful authority to sue on behalf of the alleged beneficiaries rendering the suit incompetent and liable to be struck out. 5. 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. 6. In light of the foregoing, the Plaint was therefore an abuse of the process of this Honourable Court and ought to be struck out with costs to the 1st Defendant. 7. **Submissions** 8. On 17th March, 2026, while in the presence of all the Counsels for the Plaintiffs/Respondents and the 1st Defendant/Applicant herein, the Honourable Court directed parties to canvass the objection by way of written submissions. 9. Nonetheless, att the time of drafting this ruling only the 1st Defendant had complied. Nevertheless, this court will proceed to render its verdict on its merit accordingly. 10. **The Written Submissions by the 1st Defendant’s** 11. The Law firm of Messrs. James Oketch & Co Advocates filed submissions on behalf of the 1st Defendant herein dated 27th March, 2026. Mr. Oketch Advocate identified the following issues for determination:- 12. Whether the Plaintiffs had the requisite ***“locus standi”*** to institute this suit? 13. Whether the Plaintiffs had 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? 14. On the first issue for determination. The Learned Counsel made reference to the provisions of Order 1 Rule 13 of the Civil Procedure Rules, 2010 on authority to plead for others in proceedings when either the Plaintiffs or the Defendants were more than one. 15. The Counsel averred 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. According to him, clearly there was no compliance with the provisions of Order 1 Rule 13 of the Civil Procedure Rules, 2010. For this reason, the Plaintiffs could not properly represent either Wachanda-Clan Ndana or Mwayawa- Ndegwa family. 16. The Counsel stated that for a party to claim to be a representative of another without formal proof such authority to act on their behalf in writing could not and should not be considered in the slightest to have locus to institute a suit against another. Therefore, the Plaintiffs lacked “***the Locus Standi” –*** the legal capacity to institute this suit. 17. To buttress on these legal preposition, the Learned Counsel made reference to several authorities which were all on fours to this argument. These were as follows:- 18. ***Sing’oei & 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)*** 19. ***Kademba – Versus - Onyango & 2 others (Environment and Land Appeal E01 of 2023) [2025] KEELC 4124 (KLR) (22 May 2025) (Judgment)*** 20. ***Hussein – Versus - Gedi; Adan (Interested Party) (Environment & Land Case E009 of 2024) [2025] KEELC 931 (KLR) (26 February 2025) (Ruling),*** 21. ***Julian Adoyo Ongunga & Another – Versus - Francis Kiberenge Bendera (suing as Administrator of the Estate of Fanuel Evans Amudavi, Deceased) (2016) eKLR.*** 22. ***Noor – Versus - Kisilu & another (Environment & Land Case E379 of 2024) [2025] KEELC 3774 (KLR) (13 May 2025) (Ruling)*** 23. On the second issue for determination. The Learned Counsel made reference to the provisions of Section 14 of the National Land Commission Act, 2025 which sets out the procedures by which a party shall seek redress for a decision made by the National Land Commission. 24. Thus, the Learned Counsel averred that “***the doctrine of exhaustion”*** was a crucial aspect that when raised must be determined at the onset of the proceedings. That this issue was potentially dispositive because if the Court was to find that it had no jurisdiction, it would have no option to terminate the proceedings. Therefore, it was imperative to note that the doctrine of exhaustion required a party to exhaust all remedies provided by statute and/or law before resorting to the courts. 25. In the present case, the Plaintiffs failed to do so by failing to follow the due process provided for when a party when seeking to challenge the decision of the National Land Commission. This would only be made by either an appeal or through Judicial Review Proceedings and not these proceedings herein. To support this legal position, the Learned Counsel placed reliance unto the following authorities:- 26. ***Speaker of the National Assembly – Versus - James Njenga Karume [1992] eKLR 21.*** 27. ***Geoffrey Muthinja Kabiru & 2 Others – Versus - Samuel Munga Henry & 1756 Others.*** 28. ***Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No.201 of 2019 William Odhiambo Ramogi & 3 others – Versus – Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR”*** 29. ***Wilson & 3 others – Versus - National Land Commission & 9 others (Civil Appeal 15 of 2020) [2025] KECA 1410 (KLR) (31st July 2025) (Judgment*** 30. ***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) (6 June 2024) (Ruling).*** 31. In conclusion, the Counsel held that where a party sought to challenge the legality or procedural propriety of administrative actions by the Commission, the proper avenue was through instating a Judicial Review proceedings, not filing an ordinary civil suit. Consequently, the current proceedings had been instituted through an improper procedure. The 1st Defendant urged court to dismiss the suit with costs. 32. **Analysis and determination** 33. This court has keenly considered the pleadings in form of the Plaint dated 25th August, 2025 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. 34. In order to arrive at an informed, reasonable and just decision, I have framed the following three (3) salient issues for determination:- 35. ***What are the legal thresholds for grating an objection based on Law and precedents.*** 36. ***Whether the Notice of Preliminary Objection as taken is well founded, valid and merited;*** 37. ***Who will bear the costs of the preliminary objection?*** ***ISSUE No. a). What are the legal thresholds for grating an objection based on Law and precedents.*** 1. Under this Sub – heading, the Honourable Court shall endeavour to deal with the meaning, nature and scope of the concept of Preliminary Objection. 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”*** 1. The High Court has deliberated on this legal issue extensively through case law. Hence, in the given circumstances, there will be no need to re – invent the wheel. The starting point would be to seek refuge from the now famous case of: “***Mukisa Biscuits Manufacturing Co Limited – 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.'*** 1. 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.'*** 1. A **“demurrer*”*** according to the 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.”*** 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”:* - 2. ***A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.*** 3. ***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*** 4. ***The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute.*** 5. Similarly, I am guided by the decisions from the Tanzanian Court of Appeal sitting in Dar es Salaam, in “[***Karata Ernest & others – Versus - Attorney General***](https://tanzlii.org/akn/tz/judgment/tzca/2010/30/eng%402010-12-29)***(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.*** 1. Finally, the Court of Appeal in ***“Oraro – Versus – Mbaja (2005) 1KLR 141, Ojwang J*** ( as he then was) stated:***-*** ***“A Preliminary objection correctly understood is now identified as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event to be proved through the process of evidence”*** 1. 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;*** 1. Under this Sub – heading, the Honourable Court shall be assessing whether the objection raised meets the threshold and if so, whether it was meritorious or not. 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 Mwawaya-Ndegwa and 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. 2. 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. Therefore, this is an issue of law and thus the preliminary objection is properly placed before court. 3. 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 “***Locus Standi”*** – legal authority to institute this suit and act on behalf of the Mwawaya-Ndegwa and Wachanda-Clan Ndana family. 4. To this end, it is imperative to consider the provision of Order 1 Rule 13 of the Civil Procedure Rules 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.** 1. From the pleadings on record, the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th Plaintiffs indeed filed a Plaint dated 21st August, 2025 accompanied by a Verifying Affidavit sworn and signed by all the Plaintiffs herein. Further to this, they took out Summons to Enter Appearance. It was stated that the suit had been instituted on behalf of the Mwawaya - Ndegwa and Wachanda-Clan Ndana family. Under Paragraph Number 1 of the Plaint states as follows:- ***“The Plaintiffs are male adults of sound mind and disposition residing and working for gain at Samburu Area in Kwale County and bring this Suit in their capacity as appointed representatives of Mwayawa – Ndegwa Family and Wachanda – Ndana Family who are the beneficial/legal/owners of Clan land held under Title Deed LR No. Kwale/South Samburu/86……..”*** 1. Further to the above, the contents pf paragraphs 1 of the Verifying Affidavit dated even dated holds as follows: ***“That we are the Plaintiffs herein duly authorised by Mwayawa – Ndegwa Family and Wachanda – Ndana Family who are the beneficial/legal/owners of Clan land held under Title Deed LR No. Kwale/South Samburu/86 to make this Affidavit on our own behalf and on their behalf thus able and competent to make this affidavit..…..”*** 1. Suffice to say, despite of all these, it was noted that there was no written authority from members of the said clan authorising the Plaintiffs herein to institute suit on behalf of the clam members, Thus, by that stand alone reason, notwithstanding of the provision of Article 159 ( 2 ) ( d ) of the Constitution of Kenya, 2010 as this is not a procedural technicality, it makes the pleadings fatally defective and null and void. 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.”*** 1. 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. 2. 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?*** 1. It is trite that the issue of costs is at the discretion of the Court. Costs is the award that a party is awarded at the conclusion of any legal action or proceedings in any litigation. 2. The Proviso of Section 27 ( 1 ) of the Civil Procedure Act, Cap. 21 holds that costs follow an event as follows:- ***“*Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and give all the necessary directions for the purposes aforesaid; and the fact that the court has no jurisdiction to try the suit shall be no bar to the exercise of those powers;** **Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise direct.”** 1. By event it means the result or outcome of the legal action. In the case of ***“Hussein Muhumed Sirat v Attorney General & Another [2017] eKLR”,*** the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 2. Having interrogated the circumstances of this case and the nature of the final orders granted, the court opines that it will be proper for each party to bear its own costs. 3. **Conclusion and Final Orders** 4. In light of the foregoing analysis, the Honourable Court based on the principles of Preponderance of Probabilities and the balance of Convenience, I hereby make the following specific orders:- 5. **THAT the Preliminary Objection dated 7th March, 2026 be and is hereby found to be merited thus allowed.** 6. **THAT the suit is hereby struck out in its entirety** 7. **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. M/s. Onsongo Advocate holding brief for Mr. Ondabu Advocate for 1st, 2nd, 3rd, 4th, 5th, 6th & 7th the Plaintiffs. 3. M/s. Kemei Advocate holding brief for Mr. Aketch Advocate for the 1st Defendant. 4. M/s. Kiti Advocate for the 3rd & 4th Defendants. 5. Mr. Athman Advocate for the 5th Defendant. 6. No appearance for the 2nd Defendant.