https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4228

Ngigi & another v Mhasibu Housing Company Ltd & 5 others (Environment and Land Case Civil Suit E210 of 2024) [2026] KEELC 4228 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEELC 4228 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Case Civil Suit E210 of 2024 JA Mogeni, J May 14, 2026 Between Hannah Wanjiku Ngigi 1st Plaintiff Teresia Wangui Ngigi 2nd Plaintiff and Mhasibu Housing Company Limited 1st Defendant Mhasibu River Park Management Limited 2nd Defendant County Government of Kiambu 3rd Defendant County Physical Planner, Ruiru Sub County 4th Defendant Isaac Kiragu 5th Defendant All The Property Owners/Residents of All That Gated Community Known as Mhasibu River Park Estate 6th Defendant Ruling 1.This Ruling relates to the Notice of Motion Application dated 25/02/2025 and two subsequent Preliminary Objections filed by the 1st, 2nd, 3rd and 4th Defendants. The 3rd and 4th Defendants filed a Preliminary Objection application dated 20/06/2025. The Notice of Motion Application is brought under Article 40 of the Constitution of Kenya, Section 1A, 1B, 3, 3A of the Civil Procedure Act Cap 21, Order 40 and Order 51 of the Civil Procedure Rules. The Applicant seeks the following:1.Spent2.That pending the hearing and determination of this application inter parties, this Honorable Court be pleased to issue a temporary injunction restraining the Defendants/Respondents either by themselves, their agents, servants, employees, representatives and assigns from interfering in any way whatsoever with the construction activities of the Plaintiffs/Applicants and their contractors on the property known as Ruiru Municipality, Thika District, measuring 0.0800 Ha being land reference number 28318/1288 (Original Number 28318/23/364) herein “the property” by denying the Plaintiffs/Applicants and at their agents/contractors access to the property or any other interruption whatsoever.3.That pending the hearing and determination of this suit, this Honorable Court be pleased to issue a temporary injunction restraining the Defendants/Respondents either by themselves, their agents, servants, employees, representatives and assigns from interfering in any way whatsoever with the construction activities of the Plaintiffs/Applicants and their contractors on the property known as Ruiru Municipality, Thika District, measuring 0.0800 Ha being land reference number 28318/1288 (Original Number 28318/23/364) herein “the property” by denying the Plaintiffs/Applicants and at their agents/contractors access to the property or any other interruption whatsoever.4.That pending the hearing and determination of this suit, this Honorable Court be pleased to issue an order compelling the Defendant/Respondent to conduct an official Survey of All that property measuring approximately 120 acres known as Mhasibu River Park Estate which was formerly LR No. 28318/23 in the name of Mhasibu Housing Company Limited, in conjunction with the Ministry of Lands directorate of survey and mapping to ascertain and establish all the beacons of all the sub-divided properties thereon and thereafter file a comprehensive survey report in Court.5.That in the alternative to prayer 2 and 3 above, this Honorable Court be pleased to issue an injunction restraining the Defendants/Respondents or by their agents, servants, employees, representatives and assigns from commencing, approving and/or proceeding in any way whatsoever with ANY and or ALL construction activities on the entire of that property measuring approximately 120 Acres known as Mhasibu River Park Estate which was formerly LR No. 28318/23 in the name of Mhasibu Housing Company Limited and on any of the sub-divided individual properties thereon pending the hearing and determination of this suit.6.That the Officer Commanding Station (OCS) Ruiru Police Station be and is hereby directed to ensure enforcement of the orders granted by the Honorable Court.7.That costs of this application be provided for. 2.The Application is based on the eleven (grounds) on the face of it and supplemented by the Supporting Affidavit of Hannah Wanjiku Ngigi the 1st Plaintiff and who is a joint owner of all the suit property. She deposes that she and her co-Plaintiff are joint owners of LR No. 28318/1288 (Original Number 28318/23/364), a property situated in Ruiru Municipality, Thika District, measuring 0.0800 Ha, which they purchased, transferred and registered on 22/11/2023, as evidenced by the Certificate of Lease marked “HWN1”. 3.That the property was purchased from one Peter Mwangi Waichari, who had in turn purchased the same from the 1st Defendant/Respondent, and that at the time of purchase there were no additional terms, conditions, covenants or obligations attached to it, the only documents executed being the Sale Agreement and transfer forms. 4.She further deposes that 1st Defendant/Respondent was the original owner of all that property measuring approximately 120 Acres known as Mhasibu River Park Estate, formerly L.R. No. 28318/23, and proceeded to subdivide the same into plots which were thereafter sold off, as shown in the site plan and survey map annexed and marked as “HWN2” and “HWN3”. As a result of that subdivision, the gated community known as Mhasibu River Park Estate was created and the 2nd Defendant/Respondent was incorporated, as evidenced by the Certificate of Incorporation and CR12 marked “HWN4” and “HWN5”. 5.The deponent avers that the Applicants' property is hexagonal in shape with six sides and boundaries, is contiguous with and abutted by estate roads on five of its sides, has no neighbouring buildings on those five sides, and does not fall within the description of properties subject to the purported building code and regulations of the 1st and 2nd Defendants/Respondents, as illustrated in the sketch map marked “HWN6”. 6.Upon resolving to develop the property as a dwelling home, the Applicants engaged professional services to prepare technical drawings and duly obtained a first approval from both the County Government and the 1st and 2nd Defendants, as evidenced by the County Government Approval receipt marked “HWN7”. Further that on 3/04/2024, the 2nd Defendant/Respondent, through its Vice-chair, Director, agent, employee or assign, Dr. John Njau Ngotha, recommended a Surveyor to ascertain the beacons on the property, which surveyor was duly paid and confirmed that the beacons indicated by the 1st and 2nd Defendants/Respondents were the true and accurate ones, as shown by the M-Pesa message and phone number of the surveyor marked “HWN8”. The Applicants thereafter engaged contractors to construct a dwelling home with the knowledge and permission of the Defendants/Respondents, the construction having commenced successfully and being at an advanced stage at the time of filing suit, as shown by the photographs marked HWN8, HWN9, HWN10 and HWN11. 7.The deponent avers that the 2nd Defendant/Respondent thereafter commenced frustrating the Applicants' construction, necessitating the filing of Thika MCELC E069 of 2024, Hannah Wanjiku Ngigi & Teresia Wanjiku Ngigi v Mhasibu River Park Management Limited challenging the applicability of the 2nd Defendant/Respondent's building code and regulations to the Applicants' property, as shown in the Plaint marked “HWN12”. Conservatory orders were awarded pending the hearing and determination of that suit, as evidenced by the Court order marked “HWN13”. 8.That notwithstanding those orders, the 2nd Defendant/Respondent continued with impunity to interfere with the Applicants' development and approval procedures, and together with the 6th Defendants/Respondents, organised demonstrations, caused a fracas, injured the Applicants' workers, displayed false and malicious placards, engaged in spam calling, and staged a grotesque ritualistic party on the Applicants' property, all in a bid to dissuade them from proceeding with construction, as demonstrated by the photographs of goons and placards marked “HWN14”. 9.The deponent further deposes that following a temporary stoppage occasioned by technical aesthetic issues, the Applicants submitted the relevant technical documents to the 3rd and 4th Defendants/Respondents and paid the requisite penalty for regularisation of a compliant building, as evidenced by the receipt dated 15/07/2024 marked “HWN15”. The 2nd Defendant/Respondent thereafter marked different beacons on the Applicants' property and reported those beacons as accurate to the 3rd and 4th Defendants/Respondents, with the effect of shifting the boundaries of the property and exposing the building thereon to remedial measures including demolition. The Applicants engaged an independent Surveyor whose findings demonstrated that the beacons previously indicated by the 2nd Defendant/Respondent were not the accurate ones, as set out in the survey report dated 22/08/2024 and the beacon certificate marked “HWN16”. 10.The deponent avers that it became apparent that the real dispute was not about the building per se but about the boundaries and beacons of the entire Mhasibu River Park Estate, formerly L.R. No. 28318/23. A subsequent joint survey was arranged by the 3rd and 4th Defendants/Respondents involving all parties, during which multiple sets of beacons were identified on the Applicants' property, and testing of other sample properties within the estate revealed that their beacons were similarly erroneous, as shown in the photographs of the multiple beacons marked “HWN17”. 11.The surveyors representing the Defendants/Respondents thereafter failed, refused and or neglected to prepare a joint survey report upon conclusion of the exercise. The deponent deposes that the 6th Defendants/Respondents, who were in occupation of the estate before the Applicants, were aware of these defects but failed, refused and or neglected to address them prior to the sale of the Applicants' property. 12.Notwithstanding the pendency of conservatory orders, the 2nd Defendant/Respondent, in conjunction with their security firm which goes by the name Squad 3 Security, allowed goons onto the Applicants' property who damaged and destroyed the perimeter wall, as shown by the photographs marked “HWN18”. The incident was reported to the Police, however a suspect who had been arrested was released and the matter has not proceeded to Court to date. 13.A further and final survey was thereafter conducted confirming that the beacons previously indicated by the 1st and 2nd Defendants/Respondents were erroneous, as set out in the final survey report marked “HWN19”. The 3rd and 4th Defendants/Respondents ultimately granted the Applicants an approval to proceed with construction including a perimeter wall, as evidenced by the County Government Approval marked “HWN20”. 14.It is the deponent’s observation therefore that on 25/02/2025, the Defendants/Respondents once again introduced goons onto the site during ongoing construction to destroy the Applicants' property, as evidenced by the photographs marked “HWN21”, necessitating the present application. The deponent avers that the conduct of the Defendants/Respondents is retaliatory and constitutes a deliberate effort to occasion the Applicants financial loss for choosing to follow due process of law rather than accede to the corrupt and unlawful ways of the Defendants/Respondents or their agents. 15.The Applicants urge this Honourable Court to protect their right as owners to utilise their property fully and rightfully and to issue conservatory orders on a priority basis, failing which they stand to suffer further unquantifiable harm and loss pending the hearing and determination of this application and the main suit. 16.The Application is opposed vide a Replying Affidavit sworn on 10/04/2025 by one Timothy Duya a Director of the 2nd Defendant and filed Authority to plead annexed as “TM-1”. 17.He deposes in opposition to the Plaintiffs' Notice of Motion Application, and in response to the averments at paragraphs 3, 4, 5 and 6 of the Supporting Affidavit, that Mhasibu Riverpark Management Limited is a 120-acre controlled development wherein all plots within the estate form part of the community and are bound by the estate bylaws as per the site plan and survey map, the suit property being Plot Number 17 on that site plan, as evidenced by the site plan and survey map marked “TM-2”. 18.He contends in response to paragraph 7 of the Supporting Affidavit, that at the point of purchase of the suit property, the Plaintiffs themselves sought a Clearance Certificate from the 2nd Defendant/Respondent for the purpose of confirming that the initial owner did not owe any dues to the estate in respect of estate development fees payable by all members. 19.That the 2nd Defendant duly issued the Clearance Certificate to the previous owner after all pending dues were cleared, as evidenced by the Clearance Certificate marked “TM-3”. The deponent avers that the 2nd Defendant is bewildered by the averment at paragraph 8 of the Supporting Affidavit that the suit property does not fall within the purview of the estate building code and regulations, given that the 2nd Plaintiff was an active participant in the 2nd Defendant's Annual General Meeting of 6/04/2024 and the Plaintiffs had themselves officially requested the approval and concurrence of their Architectural Designs from the 2nd Defendant prior to submission to the Kiambu County, Ruiru Sub-County Physical Planning Department, as shown by the approved drawing from the Management Committee marked “TM-4”. 20.In response to paragraph 9 of the Supporting Affidavit, the deponent deposes that the County Government of Kiambu construction permit approval was granted on the basis of approved drawings that had received the approval and concurrence of the estate management company in adherence to the building code and regulations of Mhasibu Riverpark Management Limited. The deponent avers that in contravention and breach of their own approved architectural and structural drawing plans, the Plaintiffs proceeded to implement the project using drawings that were neither approved by the 2nd Defendant nor the County Government of Kiambu. The deponent further avers that upon learning of the Plaintiffs' non-compliance, the County Government of Kiambu allowed them to build only in compliance with the approved building plans and specifically disallowed the construction of a perimeter wall, vide a Notification of Approval dated 10/01/2025, marked “TM-4(a)”. 21.Further, in response to paragraph 10 of the Supporting Affidavit, the deponent deposes that the 2nd Defendant's approval and concurrence was sought by the Plaintiffs on 19/03/2024, while the County Government of Kiambu permit was issued on 3/04/2024. During routine site inspection on 28/04/2024, the estate Engineer discovered a discrepancy in the minimum required and approved setbacks of 2.4 metres from the boundary on the side setbacks, the actual setbacks being 1.9 metres and 1.2 metres respectively, while the front and back setbacks were found to be in order. The Engineer communicated these findings to the Plaintiffs and suspended all works pending the necessary corrections, as set out in the Engineer's construction report serialised S.No 013 dated 28th May 2024 marked “TM-5”. 22.The deponent further avers that the 2nd Defendant immediately invoked its internal Alternative Dispute Resolution mechanisms as provided in its bylaws and engaged the Plaintiffs to find a solution to the matter. The Plaintiffs' Structural Engineer worked jointly with the 2nd Defendant's Engineer and agreed on the corrections to be made, following which the 2nd Defendant's management committee approved the recommendations for implementation by the Plaintiffs, as evidenced by the Plaintiffs' Engineer Report dated 6th June 2024 with the agreed remedies and recommendations marked “”. 23.However, upon a further site inspection conducted on 20/06/2024 to examine compliance with the said recommendations, the estate Engineer found that project works were ongoing steadily but that no efforts whatsoever had been made towards addressing the corrections recommended in the Plaintiffs' own Engineer Report. 24.This finding necessitated the issuance of a second suspension notice pending compliance, as set out in the Engineer's construction report serialised S.No 022 dated 20th June 2024 marked “TM-7”. The Engineer further instructed the Plaintiffs to re-submit amended plans to the 2nd Defendant’s Management Committee and subsequently to the Kiambu County Government, Ruiru Sub-County Physical Planning Department for approval. Sensing the urgency of the matter and the prospect of irreparable damage, the 2nd Defendant's Management Committee issued a formal suspension notice of construction works to the Plaintiffs on 20/06/2024, as evidenced by the suspension notice marked “TM-8”. 25.The deponent avers that in response to paragraphs 15, 16, 17 and 18 of the Supporting Affidavit, the Mhasibu Riverpark Building Code and Guidelines are documents of the Mhasibu Riverpark Welfare Society, registered under the Society Rules of 1968 at the time of the Society's registration on 9/06/2010, as evidenced by the Mhasibu Riverpark Welfare Society Certificate of Registration marked “TM-9”. The 2nd Defendant denies in the strongest terms the averments attributing to it dramatic, cultic and demeaning practices, and is equally perturbed by the insinuation that it marked different beacons on the suit property, conduct which would amount to land grabbing, an activity expressly frowned upon by the 2nd Defendant. 26.Further that the substratum of the Mhasibu Riverpark Building Code and Guidelines is a verbatim adoption of the Kiambu County Department of Land, Housing, and Physical Planning Regulations, and it is upon this basis that on 4/07/2024 the Kiambu County Department of Land, Housing, and Physical Planning issued an enforcement notice against the Plaintiffs pursuant to Section 72(1) of the Physical and Land Use Planning Act, citing them for building contrary to approved plans, a position the 2nd Defendant had consistently emphasized in its compliance communications, as evidenced by the enforcement notice marked “TM-10”. 27.The deponent avers that the Plaintiffs were severely cognizant of this enforcement notice at the time of filing the present suit yet deliberately and mischievously concealed it from this Honourable Court, and further omitted to cite the Kiambu County Department of Land, Housing, and Physical Planning as a Defendant for the obvious purpose of hoodwinking the Court into assuming the dispute was solely between the Plaintiffs and the 2nd Defendant. 28.That the suit referred to at paragraphs 12 and 13 of the Supporting Affidavit, being MCELC E069 of 2024 Hannah Wanjiku Ngigi and Teresia Wangui Ngigi v Mhasibu River Park Management Limited is still ongoing before the Chief Magistrate, involves the same parties, the same subject matter and the same dispute now placed before this Honourable Court, and was coming up for delivery of a Ruling on the application to review and set aside the temporary injunction orders on 18/03/2025. The deponent is informed by his Advocates on record that the sub judice rule forbids the Plaintiffs from initiating the present suit in circumstances where the same matter is pending for determination before another Court at the same station. 29.According to the deponent he further contends that this Honourable Court lacks jurisdiction to entertain, issue interim orders and or determine the entire suit as drawn and filed, the dispute being subject to the Physical and Land Use Planning Act. 30.Specifically, Section 78 of the Act vests jurisdiction to hear complaints and claims in respect of plans submitted to the County in the County Physical and Land Use Planning Liaison Committee, with appeals from that Committee lying to the National Physical and Land Use Planning Liaison Committee under Section 84, and further appeals from the National Committee lying to the Environment and Land Court and the High Court as prescribed under Section 32(4) and (5) of the Act, the Environment and Land Court contemplated under the Act being the High Court and not the Magistrates Court. It is further averred that the Plaintiffs are in breach of Article 159(2)(c) of the Constitution which mandates the promotion of alternative dispute resolution mechanisms, the parties having had a dispute resolution mechanism available to them which has not been exhausted. 31.According to the deponent, the Honourable Court may have been misled in the issuance of injunctive conservatory orders, since it is in truth that the 2nd Defendant stands to suffer permanent prejudice if the construction is allowed to continue to completion, as the suit currently before the Honourable Court would thereby be rendered an academic exercise and the 2nd Defendant's pleadings rendered nugatory. It is further averred that the locus classicus test in Giella v Cassman Brown & Co. Ltd [1973] EA 358 has not been met and that the suit is founded on mala fides and bad faith. The deponent accordingly prays that the suit be dismissed for being an abuse of Court process. 32.Before the application could be determined, the 1st, 2nd, 3rd and 4th Defendants filed Preliminary Objections dated 17/03/2025 for the 1st and 2nd Defendant’s Preliminary Objection and the 3rd Defendant’s Preliminary Objection dated 20/06/2025. I did not cite any Preliminary Objection for the 4th Defendant and therefore I take it that no other Preliminary Objection was filed. Preliminary Objections 33.The 1st and 2nd Defendants filed a Notice of Preliminary Objection against the Plaint and the Certificate of Urgency dated 25/02/2025, seeking to have the same struck out and or dismissed in limine on the grounds set out hereunder:.1.The Honourable Court is wholly without jurisdiction to entertain the suit as drawn and filed, to issue any interim orders thereunder, or to determine the dispute on its merits.2.That the dispute before the Court, touching as it does on physical planning and development control, falls squarely within the province of the Physical and Land Use Planning Act. Under Section 78 of that Act, the County Physical and Land Use Planning Liaison Committee is the body clothed with jurisdiction to hear complaints and claims arising from plans submitted to the county.3.That a party aggrieved by the decision of that Committee is not at liberty to approach the Courts directly but must first appeal to the National Physical and Land Use Planning Liaison Committee under Section 84 of the same Act. Only upon exhaustion of that appellate process, and upon dissatisfaction with the decision of the National Committee, does the Act open the door to judicial intervention, and even then the forum designated under Sections 32(4) and (5) of the Act is the Environment and Land Court sitting as the High Court, not the Magistrates Court.4.That this suit is sub judice. The Defendants aver that the parties before this Court are the very same parties already locked in active litigation in MCELC/E069/2024 Hannah Wanjiku Ngigi and Teresia Wangui Ngigi v Mhasibu River Park Management Limited a suit that was at the time of filing this Preliminary Objection coming up before Court on 18/03/2025 for delivery of a Ruling on the 2nd Defendant's application to review and set aside the orders granting temporary injunctions which had permitted the Plaintiffs to continue with construction on the suit property.5.This Court thus lacks jurisdiction since the institution of the present suit in those circumstances is, in the Defendants' submission, an abuse of the Court process, an affront to the proper administration of justice, and a waste of precious judicial time.6.That the Court should allow the parties to first exhaust the statutorily prescribed dispute resolution mechanisms available to them and that the Court lacked the competence to issue any orders and Rulings from the outset.7.The Defendants accordingly pray that the Plaint and the Certificate of Urgency be struck out and or dismissed with costs to the Defendants. 34.The 3rd Defendant’s Notice of Preliminary Objection is anchored on the ground that this Honourable Court lacks original jurisdiction to entertain the present suit, anchoring the objection on the doctrine of exhaustion of statutory remedies. 35.He contends that that the dispute as framed by the Plaintiffs primarily raises questions of planning, use and development of land and approvals, being matters that are regulated under the Physical and Land Use Planning Act, 2019. Specifically, Section 61(3) of that Act provides that an Applicant or Interested Party aggrieved by the decision of a County Executive Committee member regarding an application for development permission may appeal against that decision to the County Physical and Land Use Planning Liaison Committee, which is the correct and right forum to hear and determine matters of this nature at the first instance. 36.The 3rd Defendant avers that the Plaintiffs have failed, ignored and or neglected to exhaust those alternative means of dispute resolution as provided by the said legislation before approaching this Court, and that the institution of this suit in those circumstances contravenes Article 159(2)(c) of the Constitution of Kenya, 2010, which enjoins Courts and parties to promote and pursue alternative dispute resolution mechanisms. The instant suit is therefore, in the 3rd Defendant's submission, premature, an abuse of the Court process, vexatious and frivolous. 37.The 3rd Defendant accordingly prays as follows:SUBPARA i.That the entire suit be dismissed with costs to the 3rd Defendant.ii.That the Plaintiffs be ordered to lodge their complaint before the right forum as provided by law. 38.Both the Application and the Preliminary Objections were canvassed by way of written submissions. The parties confirmed having complied on 27/10/2025 and the Court reserved a Ruling date. Plaintiff/Applicant’s Submissions 39.The Plaintiff filed two sets of submissions both dated 11/07/2025 in support of the Notice of Motion Application and in opposition to the Preliminary Objections dated 17/03/2025 and 20/06/2025. The Plaintiff’s submission’s gravamen for the Notice of Motion is that the Defendants/Respondents jointly and severally have been interfering with the Plaintiffs' right to own and use their property peacefully as guaranteed under the Constitution, contrary to the principles of Land Use and Planning under Article 60 thereof. 40.The Plaintiffs submit that the threshold for the grant of interlocutory conservatory orders is well settled in the trilogy of East African Industries v Trufoods [1972] EA 420, Giella v Cassman Brown & Co. Ltd [1973] EA 358, and as restated by the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, requiring the Applicant to sequentially establish a prima facie case with a probability of success, demonstrate irreparable injury in the absence of the orders sought, and show that the balance of convenience tilts in their favour. 41.That as further refined in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, a prima facie case demands more than a mere arguable case. It must disclose an apparent infringement of a right such that a reasonable tribunal properly directing itself would find in the Applicant's favour if no rebuttal is offered, a standard that the Plaintiffs contend they have amply met by virtue of their registered title, which under Section 26(1) of the Land Registration Act constitutes prima facie evidence of absolute and indefeasible ownership. 42.On irreparable injury, the Plaintiffs rely on the principle enunciated in Nguruman Limited (supra) to the effect that the injury apprehended must be actual, substantial and demonstrable and of a nature that monetary compensation of whatever amount will never be an adequate remedy. The Plaintiffs submit that the coordinated interference by the Defendants with their construction, the manipulation of survey beacons, and the real threat of the suit property being dealt with in a manner that could transfer portions thereof to third parties constitute injuries incapable of adequate compensation in damages, thereby satisfying the second threshold. 43.As regards the balance of convenience, the Plaintiffs urge that the Defendants, who control the community common areas within which the suit property is situated and are also responsible for enforcement, have been working in a coordinated manner to deny the Plaintiffs the use and enjoyment of their property, and that the prejudice to the Plaintiffs of refusing the orders far outweighs any inconvenience to the Defendants of granting them. 44.The Plaintiffs accordingly urge this Honourable Court to allow the application for conservatory orders in its entirety, submitting that the substratum of the entire matter is the protection of the Plaintiffs' interest in land and that without such protection the suit property stands to be illegally annexed owing to the unlawful and negligent survey thereof by the Defendants. 45.The Plaintiffs further invite the Court to exercise its powers under Order 40(1)(a) and (b) of the Civil Procedure Rules 2010 to restrain the Defendants from wasting, damaging or alienating the suit property pending the hearing and determination of the main suit, and to give effect to the overriding objective under Sections 1A(1) and 1A(2) of the Civil Procedure Act by ensuring equality of arms and proportionality in the treatment of all parties before it. Plaintiff’s Submissions to the Preliminary Objection 46.These are the Plaintiffs' submissions in response to the Preliminary Objections raised by the 1st to 4th Defendants, grounded on the Physical and Land Use Planning Act Cap. 303, specifically Sections 32(4) and (5), 61(3), 78 and 84, and on the sub judice rule. The Plaintiffs squarely reject both grounds and urge the Court to dismiss the Preliminary Objections with costs. The Plaintiffs' central position is that the objectors have fundamentally misconstrued the nature of the dispute before the Court, which is not a matter of land use or development control as the Defendants would have it, but one concerning land boundaries and negligent survey a distinction of cardinal importance. Section 3 of Cap. 303 confers no jurisdiction whatsoever over land boundary disputes. 47.According to the Plaintiffs, the prayers on the face of the Plaint make this plain, seeking as they do declarations of negligent survey, orders of mandamus compelling a comprehensive re-survey of Mhasibu River Park Estate, rectification of beacons, general and aggravated damages, special damages of Kenya Shillings 5,150,000/= and in the alternative compensation of Kenya Shillings 33,500,000/= together with interest and costs. Jurisdiction over such disputes vests in this Honourable Court by virtue of Section 13(2)(a) of the Environment and Land Court Act Cap. 8D, read together with Article 162(2)(b) of the Constitution, and the Court's power to grant the prayers as sought is further anchored in Section 13(5) of the same Act. 48.On the sub judice objection, the Plaintiffs urge the Court to dismiss the same on the authority of Cyrus Mucebiu Irungu v Martha Wanjiru Irungu & Another [2022] KEELC 810 (KLR), where the Environment and Land Court at Kerugoya, relying on Margaret Wachu Karuri v John Waweru Ribiro (2021) eKLR, held that a determination of whether issues in two suits are directly and substantially the same necessarily requires the Court to ascertain facts and probe evidence, and that a Preliminary Objection cannot be raised on disputed facts. On that basis the Court in Cyrus Mucebiu Irungu dismissed the sub judice Preliminary Objection entirely with costs to the Plaintiff. The Plaintiffs urge this Court to adopt the same approach and hold that the sub judice objection as raised herein does not amount to a proper Preliminary Objection capable of being determined on a point of law alone without reference to the facts. 49.Therefore, the Plaintiffs have submitted in closing that the Preliminary Objections by the 1st to 4th Defendants are wholly without merit and ought to be dismissed with costs. As the Court of Appeal affirmed in D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & Another [1980] KECA 3 (KLR), a cause of action is an act on the part of the Defendant which gives the Plaintiff his cause of complaint, and on the facts as pleaded the Plaintiffs have a proper and competent cause of action squarely within the jurisdiction of this Honourable Court. The Plaintiffs accordingly pray that the Preliminary Objections be dismissed with costs to be borne by the 1st, 2nd, 3rd and 4th Defendants jointly and or severally. Defendants/Respondents’s Submission 50.The 1st and 2nd Respondents filed their written submissions dated 24/10/2025 and stated that they oppose the Plaintiff’s application dated 25/02/2025 and that they are in support of both the 1st and 2nd Defendant’s Preliminary Objection dated 17/03/2025 and 3rd Defendant’s Preliminary Objection dated 20/06/2025. The Defendants submit that the Preliminary Objections are merited on two distinct grounds. First, the Plaintiffs bypassed the statutory dispute resolution hierarchy under the Physical and Land Use Planning Act by failing to appeal the decision of the County Executive Committee member to the County Physical and Land Use Planning Liaison Committee as required under Sections 61(3) and 78 of the Act before approaching the Court, rendering the suit premature. 51.On jurisdiction, the Defendants rely on the Supreme Court's pronouncement in Dina Management Ltd v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR), affirming that a Court can only exercise jurisdiction as conferred by the Constitution or written law, and on Owners of the Motor Vessel "Lilian S" v Caltex Oil (Kenya) Limited (1989) KLR 1, to the effect that jurisdiction is everything and without it the Court must down its tools. Second, the suit is sub judice by reason of the pending proceedings in MCELC No. E069 of 2024 Hannah Wanjiku Ngigi & Teresia Wangui Ngigi v Mhasibu River Park Management Limited before the Thika Magistrate's Court, the elements of sub judice under Section 6 of the Civil Procedure Act being satisfied as articulated in The Law Society of Kenya v Paul Kihara & 2 Others [2020] eKLR, the parties, cause of action and subject matter being identical in both suits. 52.On the application for a temporary injunction, the Defendants submit without prejudice to the Preliminary Objections that the Plaintiffs have failed to satisfy any of the three limbs of the Giella v Cassman Brown & Company Limited [1973] EA 358 test. On prima facie case, the Defendants rely on Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 for the proposition that a prima facie case demands more than a mere arguable complaint and must disclose an actual infringement of a right with a real prospect of success at trial, a threshold the Plaintiffs have not met given that they proceeded to construct in breach of the very building code and regulations by which they bound themselves upon purchase of the property. 53.On irreparable loss, the Defendants rely on Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR to submit that the Plaintiffs have demonstrated no harm that cannot be adequately compensated by an award of damages. On the balance of convenience, the Defendants urge that it is the 1st and 2nd Defendants who stand to suffer greater prejudice, since permitting non-compliant construction to continue would set a dangerous precedent opening the floodgates for all residents of the estate to develop without adherence to the established guidelines. 54.In their submissions they conclude by urging the Court to uphold both Preliminary Objections and dismiss the Plaintiffs' application and suit in their entirety with costs. On costs, the Defendants rely on Section 27(1) of the Civil Procedure Act and the principle reaffirmed in Karisa & 67 Others v Haji & 18 Others [2025] KEELC 6107 (KLR) that costs follow the event and that the successful party is ordinarily entitled to costs unless there are compelling reasons to the contrary. 55.The Defendants submit that the Plaintiffs, having filed this suit in blatant disregard of the doctrines of exhaustion of statutory remedies and sub judice, have needlessly dragged the 1st and Defendants into defending premature and incompetent proceedings, and that there exist no compelling reasons to depart from the ordinary rule on costs. 5th Defendant/Respondent’s Submissions 56.The 5th Defendant filed their submissions dated 23/10/2025 in support of the 1st to 3rd Defendants’ Preliminary Objection and his primary contention is that this Honourable Court is wholly without jurisdiction to entertain the suit as drawn and filed, the dispute falling squarely within the statutory framework of the Physical and Land Use Planning Act which establishes a clear, sequential and mandatory hierarchy for dispute resolution. 57.He submitted that under Sections 78 and 84 of the Act, complaints regarding development plans must first be heard by the County Physical and Land Use Planning Liaison Committee, with appeals lying to the National Committee, and only thereafter to the Environment and Land Court sitting as the High Court under Sections 32(4) and (5). 58.He anchors the jurisdictional objection on the Supreme Court's authoritative pronouncement in Samuel Kamau Macharia v Kenya Commercial Bank Limited & 2 Others [2012] KESC 8 (KLR) that a Court cannot arrogate to itself jurisdiction exceeding that conferred upon it by the Constitution or written law, and on Owners of the Motor Vessel "Lilian S" v Caltex Oil (Kenya) Limited (1989) KLR 1, where Nyarangi JA affirmed that any decision taken in the absence of jurisdiction amounts to a nullity ab initio. 59.On the doctrine of exhaustion, the 5th Defendant relies on Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others (eKLR) and the five-judge bench decision in William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others [2020] eKLR, which together firmly establish that a party is required as a matter of law to diligently exhaust all statutory alternative dispute resolution mechanisms before approaching the Courts, the purpose of the doctrine being to ensure that specialist statutory bodies are given the first opportunity to resolve disputes falling within their mandate. 60.At the same time the 5th Defendant further invokes Article 159(2)(c) of the Constitution, which expressly directs Courts to promote alternative dispute resolution, and the Court of Appeal's decision in Kibos Distillers Ltd & 4 Others v Benson Ambuti Adega & 3 Others (eKLR), which clarified that the Environment and Land Court's jurisdiction under the Physical Planning Act is primarily appellate in character and cannot be invoked at first instance. The Plaintiffs having initiated no complaint or appeal before the relevant committee as prescribed under the Act, the 5th Defendant submits that their invocation of this Court's jurisdiction is premature and misconceived. 61.On the sub judice rule, the 5th Defendant submits that the present suit is barred by Section 6 of the Civil Procedure Act, the parties, subject matter and issues in dispute being identical to those already pending before the Thika Magistrate's Court in MCELC/E069/2024. Relying on the Supreme Court's exposition of the sub judice doctrine in Kenya National Commission on Human Rights v Attorney General; IEBC & 16 Others [2020] KESC 54 (KLR), the 5th Defendant argues that the rule is not a mere procedural nicety but a substantive legal principle designed to prevent parallel litigation, the risk of conflicting decisions and the abuse of Court process, and that the Plaintiffs cannot be permitted to engage in forum shopping simply because the trajectory of the earlier proceedings has not yielded the results they desire. 62.The 5th Defendant accordingly prays that the Preliminary Objections be upheld, the Plaint and the Notice of Motion Application struck out and or dismissed, and the full costs of the suit be borne by the Plaintiffs on the well-settled principle under Section 27(1) of the Civil Procedure Act that costs follow the event, as reaffirmed in Hussein Muhumed Sirat v Attorney General & Another [2017] eKLR. Analysis and Determination 63.I have considered the application, Preliminary Objections filed, the affidavits and the written submissions. The issues I see should be determined by this Court are:i.Whether this Honourable Court has jurisdiction to entertain the suit as drawn and filed, having regard to the doctrine of exhaustion of statutory remedies under the Physical and Land Use Planning Act, 2019.ii.Whether the suit is sub judice the pending proceedings in MCELC/E069/2024.iii.If the Preliminary Objections fail, whether the Plaintiffs have satisfied the threshold for the grant of conservatory orders as prayed. 64.The Preliminary Objections go to the root of this suit and must logically be disposed of first, for as Nyarangi JA famously pronounced in Owners of the Motor Vessel "Lilian S" v Caltex Oil (Kenya) Limited (1989) KLR 1, "jurisdiction is everything" and where a Court lacks it, it must down its tools. 65.The Defendants have erected two jurisdictional walls against this suit. The first is the doctrine of exhaustion, anchored on the Physical and Land Use Planning Act. Sections 61(3), 78 and 84 of the Act establish a clear and sequential hierarchy from the County Executive Committee member, to the County Physical and Land Use Planning Liaison Committee, then to the National Committee, and only thereafter to the Environment and Land Court. The Plaintiffs have not taken a single step along that path before approaching this Court. 66.However, the Plaintiffs' response to this Objection carries considerable wisdom. Their case, properly understood, is not about development permission or building approvals. It is about negligent survey, erroneous beacons and disputed land boundaries. The prayers in the Plaint seek declarations of negligent survey, orders of mandamus for a comprehensive re-survey, rectification of beacons, and damages amounting to Kenya Shillings 5,150,000/= or in the alternative Kenya Shillings 33,500,000/=. 67.Section 3 of the Physical and Land Use Planning Act simply does not touch land boundaries, and as the Supreme Court affirmed in Samuel Kamau Macharia v Kenya Commercial Bank Limited & 2 Others [2012] KESC 8 (KLR),“A Court of law can only exercise jurisdiction as conferred by the Constitution or other written law" 68.In this instance it is Section 13(2)(a) of the Environment and Land Court Act read with Article 162(2)(b) of the Constitution that vests in this Court the jurisdiction to hear and determine disputes relating to land boundaries. The Physical and Land Use Planning Act machinery was simply not designed to resolve a dispute of this character, and to send the Plaintiffs there would be to dispatch them to a forum that has no tools to give them the relief they seek. 69.On sub judice, the Defendants rely on Section 6 of the Civil Procedure Act and the Supreme Court's exposition in Kenya National Commission on Human Rights v Attorney General; IEBC & 16 Others [2020] KESC 54 (KLR), where the Court stated that;“The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of Courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter." 70.The earlier suit, MCELC/E069/2024, is indeed between the same parties and concerns the same estate. However, the Environment and Land Court at Kerugoya in Cyrus Mucebiu Irungu v Martha Wanjiru Irungu & Another [2022] KEELC 810 (KLR), relying on Margaret Wachu Karuri v John Waweru Ribiro (2021) eKLR, held that;“A Preliminary Objection cannot be raised on disputed facts and that to determine whether issues are directly and substantially the same the Court will have to ascertain facts and probe evidence." 71.Thus, the sub judice objection therefore cannot be resolved on the face of the pleadings alone without a deeper interrogation of whether the causes of action, reliefs sought and issues for determination in both suits are truly identical a question that itself requires evidence. The objection on that ground accordingly cannot be sustained as a pure Preliminary Objection at this stage. 72.On the conservatory orders, the Plaintiffs have demonstrated, on the face of it, a registered title under Section 26(1) of the Land Registration Act which constitutes prima facie evidence of indefeasible ownership, and the threat to their ongoing construction is neither speculative nor remote. As the Court of Appeal stated in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR,“The Applicant need not establish title, it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges,"a threshold the Plaintiffs have met. 73.Given my careful consideration of the application, the Preliminary Objections and the written submissions of all parties, this Court finds and holds as follows. 74.The Preliminary Objections by the 1st, 2nd and 3rd Defendants are not merited. 75.The dispute before this Court is fundamentally one of land boundaries and negligent survey, over which this Court is properly seized with jurisdiction under Section 13(2)(a) of the Environment and Land Court Act and Article 162(2)(b) of the Constitution. The Physical and Land Use Planning Act machinery invoked by the Defendants does not address land boundary disputes and the doctrine of exhaustion cannot be extended to require a party to approach a statutory body that has no mandate to grant the relief sought. 76.The sub judice objection equally fails as it raises disputed questions of fact incapable of resolution by way of a Preliminary Objection. 77.On the conservatory orders, the Plaintiffs have on balance satisfied the triple threshold in Giella v Cassman Brown & Co. Ltd [1973] EA 358. They hold a registered title, the threatened interference with their construction is ongoing and demonstrable, and the balance of convenience favours the preservation of the status quo pending the hearing and determination of the main suit. 78.The Notice of Motion Application dated 25/02/2025 is accordingly allowed. Disposal Ordersi.The Preliminary Objections by the 1st and 2nd Defendants is not merited and is hereby dismissed with costs.ii.The Preliminary Objections by the 3rd Defendants is not merited and is hereby dismissed with costs.iii.The sub judice objection fails as it raises disputed questions of fact incapable of resolution by way of a Preliminary Objection.iv.On the conservatory orders the balance of convenience favours the preservation of the status quo pending the hearing and determination of the main suit.v.The Notice of Motion Application dated 25/02/2025 is hereby allowed and the conservatory orders sought in prayers 2 and 3 are hereby granted pending the hearing and determination of the suit.vi.Costs of both the Application and two Preliminary Objections is granted to the Plaintiff.Orders Accordingly. DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 14TH DAY OF MAY, 2026.………………………MOGENI JJUDGEIn the presence of:Mr. Nyamweya for the PlaintiffMiss Nyambura for the 1st and 2nd DefendantsMr. Ondera holding brief for Miss Wanjiku for the 3rd and 4th DefendantsMr. Melita - Court Assistant………………………MOGENI JJUDGE