[2023] KEELC 15964 (KLR)

Nthuku v Munjuri & 3 others (Environment and Land Appeal E124 of 2021) [2023] KEELC 15964 (KLR) (8 March 2023) (Judgment)

Neutral citation: [2023] KEELC 15964 (KLR)

Republic of Kenya

In the Environment and Land Court at Meru

Environment and Land Appeal E124 of 2021

CK Yano, J

March 8, 2023

Between

John Bernard Nthuku

Appellant

and

Isaac Mwithale Munjuri

1st Respondent

Jackson Muratanya Kaberia

2nd Respondent

Land Adjudication and Settlement Officer Igembe

3rd Respondent

The Hon. The Attorney General

4th Respondent

Judgment

Introduction 1. By a plaint dated and filed on February 1, 2017, Isaac Mwithalie Munjuri, the 1st respondent herein and Jackson Muratonya Kaberia, the 2nd respondent herein sued John Bernard Nthuku, the appellant herein (as the 1st defendant), the land adjudication and settlement officer – Igembe and the honourable attorney general, the 3rd and 4th respondents herein (who were the 2nd and 3rd defendants) seeking the following reliefs;a.A declaration that land parcel No 2437 Amwathi/Mutuati II A adjudication section is part of the property of the plaintiffs and that the same had been properly demarcated on the ground as property of the plaintiffs before interference by the 1st and 2nd defendants.b.An order that the defendants records on land parcel No 2437 Amwathi/Mutuati II “A” adjudication section be cancelled and the adjudication register and the adjudication and demarcation map be re-done to reflect the positions as they were before interference by the 2nd defendant and reverting the developed land to the plaintiffs.c.Costs of this suit and interest and (sic) court rates.d.Any further or better relief this honourable court may deem fit to grant.

2. The 1st and 2nd respondents’ case was that they were the owners of land parcels Amwathi/Mutuati II “A”/8206 and 8205 respectively and the same covered the area now covered by LR No Amwathi/Mutuati II A/2437 in Amwathi/Mutuati adjudication section. The 1st and 2nd respondents pleaded that the appellant and the 3rd respondent herein conspired and unlawfully, wrongfully and fraudulently colluded and had objections marked as No 1392 and 3088 read by the 3rd respondent herein without the assistance of the land adjudication committee as required by the relevant Act and incorporated their said parcels of land in LR No Amwathi/Mutuati II “A”/2437 in the name of the appellant herein. They itemized the particulars of the alleged fraud on the part of the appellant and the 3rd respondent.

3. The appellant filed a defence and counterclaim dated March 24, 2017 in which he denied the claim and in the counterclaim sought a declaration that land parcel No 2437 Amwathi II A land adjudication section was his property as well as eviction order, mesne profits and injunction against the 1st and 2nd respondents.

4. The appellant also filed a notice of preliminary objection dated July 26, 2021 seeking to have the plaint dated February 1, 2017 struck out on the following grounds:1. That plaint dated February 1, 2017 and the suit generally is bad in law as it offends the strict provisions of section 8(1) (2) of the Land Consolidation Act, cap 283 Laws of Kenya as read with section 30 of the Land Adjudication Act, cap 284 Laws of Kenya.2. That this court does not have jurisdiction by virtue of sections 8 (1) & (2) of the Land Consolidation Act cap 283 Laws of Kenya as read with section 30 of the Land Adjudication Act cap 284 Laws of Kenya to proceed with the current suit.

5. The learned trial magistrate considered the said preliminary objection and by a ruling dated November 17, 2021 ordered as follows-;“Let the plaintiff dispute be reheard by full land adjudication committee. Let the same be heard within 60 days from the date of this order or within a larger period as agreed between the parties.Any party aggrieved by the decision of the said committee to use the appellate mechanism provided in the relevant act.Each party bear own costs”

6. The appellant, being aggrieved by the decision of the learned magistrate in the said ruling filed the instant appeal before this court on the following grounds-.1. That the learned trial magistrate erred in law in failing to uphold the appellant’s preliminary objection dated July 26, 2021. 2.That jurisdiction is everything and once the court found it had no jurisdiction it should have downed its tools. The learned magistrate therefore erred in law in failing to find that the court had no jurisdiction to hear the suit and instead proceeded to issue orders that the objection be reheard.3. The learned magistrate erred in law in failing to find and hold that the plaint dated the February 1, 2017 and the suit generally is bad in law as it offends the strict provisions of section 8(1) & 2 of the Land Consolidation Act, cap 283 Laws of Kenya as read with section 30 of the Land Adjudication Act cap 284, Laws of Kenya.4. The learned trial magistrate erred in law in delving into issues that were not pleaded in the preliminary objection inter alia by ordering that the hearing of the 1st and 2nd respondent complaint be done at the office of land adjudication officer as it had proceeded without the land adjudication committee as provided hence arriving at a wrong decision thereof. Indeed, this should have been the basis for the judicial review if the 1st and 2nd respondents adhered to the consent given by the 3rd respondent.5. The learned magistrate erred in law in failing to find that the 1st and 2nd respondents ought to have filed a judicial review and not a civil suit as per the consent order from the land adjudication officer dated January 17, 2017. A little inquiry would have informed the court, which is public knowledge anyway that indeed the adjudication committee in the area where the suit land is situate is no longer in place over the suit land since title have already been issued.6. The learned trial magistrate erred in law in failing to find the consent order relied upon by the 1st and 2nd respondents was invalid as the suit was filed a year after the aforesaid consent order had been issued which provided for 60 days within which to file the same.7. The learned trial magistrate was biased in favour of the 1st and 2nd respondents against the appellant, is full of errors, does not contain reasons for his decision, is against the provisions of law and a travesty of justice.

7. The appellant prays for the appeal to be allowed and the ruling of the learned magistrate in Maua ELC No 56 of 2018 dated and delivered on November 17, 2021 be set aside in its entirety, that the honourable court do allow the appellant’s preliminary objection dated July 26, 2021 and dismiss the suit filed in the lower court (Maua CMCC No 56 of 2018) and that costs of this appeal and in the lower court be awarded to the appellant.

8. The appeal was canvassed by way of written submissions. The appellant filed his submissions dated and filed on October 17, 2022, through the firm of Kiautha Arithi & Co Advocates while the 1st and 2nd respondents filed theirs dated and filed on November 30, 2022, through the firm of Maitai & Rimita & Co Advocates.

Appellant’s Submissions 9. In his submissions, the appellant cited the provisions of section 8 (1) & (2) of the Land Consolidation Act chapter 283 Laws of Kenya which states as follows-1. Subject to the provisions of this section, no person shall institute and no court whatever shall take cognizance of , or proceed with or continue to hear and determined, any proceedings in which the ownership or the existence under native law and custom of any right or interest whatsoever, in, to or over any land in an adjudication area is called in question or is alleged to be in dispute unless the prior consent in writing of the adjudication officer to the institution or continuance of such proceedings has been given.2. No officer of any court whatever shall issue any plaint or other legal process for the institution or continuance of any proceedings which by virtue of the provisions of subsection (1) of the section are for the time being prohibited, except upon being satisfied that the consent required by those provisions has been given.

10. The appellant further cited section 30 of the Land Adjudication Act chapter 284 Laws of Kenya which provides as follows-;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.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 sub section (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.4. The foregoing provision of this section do not prevent a final order or decision of a court made or given in proceedings concerning land in an adjudication section being enforced or executed, if at the time this Act is applied to the land the order or decision is not subject of an appeal and the time for appeal has expired.5. A certificate signed by an adjudication officer certifying land to be, or to have become on a particular date, land within an adjudication sections shall be conclusive evidence that the land is such land.6. Every certificate purporting to be signed by an adjudication officer shall be presumed to be so signed unless the contrary is shown.

11. The appellant submitted that the net effect of the aforedetailed provisions is that jurisdiction of the court to hear and determined disputes involving land under consolidation/adjudication is not automatically available. The appellant stated that it is preceded by the consent by the land adjudication officer of the adjudication area where the land in dispute is situate and in their case the disputed land parcel Nos Amwathi/mutuati Ii “a” 2437, 8205 And 8206 land adjudication Section had to be given by the land adjudication officer Igembe Central/North/South sub counties.

12. The appellant submitted that in this case the consent was given on January 17, 2016 but conditioned upon court being approached by way of judicial review and such judicial review to be filed within 60 days of the issuing of the consent and that the respondents did not meet the condition of the consent.

13. The appellants submitted that the court was never approached by way of judicial review and when the suit in the lower court was filed on February 1, 2017, it was by way of a plaint and filed well over 380 days after the consent was issued. The appellant argued that the consent had become spent and was not complied with and that in essence the suit was filed without consent. That what was open to the respondents was to obtain a fresh consent and failure to obtain such fresh consent meant that the suit in the lower court was filed without the land adjudication officer consent and therefore the trial court lacked jurisdiction to entertain the suit and should have been struck out with costs.

14. The appellant relied on Owners of the Motor Vessel “Lillians”vCaltex Oil (Kenya) Ltd(1989) eKLR, Speaker of the National AssemblyvJames Njenga Karume (1992) eKLR and Samwel Kamau Macharia & anothervKenya Commercial Bank Limited & 2 others( 2012) eKLR.

15. The appellant submitted that the preliminary objection was straight and uncurved and should have been met with a direct decision by the learned trial magistrate but instead of so doing, the learned trial magistrate gave directions as outlined in the impugned ruling.

16. The appellant submitted that the direction were plucked from the heavens and completely unsupported by the pleadings or evidence and therefore they must be set aside.

1St And 2Nd Respondent’s Submissions. 17. It was the 1st & 2nd respondents submissions that the main issue expressed in the grounds of appeal are whether the suit filed in the lower court was in contravention of the express and mandatory provisions of section 8 (1) and (2) of the Land Consolidation Act cap 283 and section 30 of the Land Adjudication Act cap 284 and whether the learned magistrate overlooked these provisions in his ruling on the preliminary objection dated July 26, 2021.

18. The 1st and 2nd respondents submitted that the main issue against the land adjudication officer in the lower court was hearing the 1st and 2nd respondents complaint without a fully constituted land adjudication committee as provided in the Land Adjudication Act and several authorities hence the ruling by the learned magistrate that the land adjudication officer having historical background of the land ought to constitute a committee and have the matter re-heard.

19. The 1st and 2nd respondent cited section 26 (1) of the Act which comes into play after completion of the adjudication register and provides in relevant parts as follows-;“Any person named in or affected by the adjudication register who considers such register to be inaccurate or incomplete in any respect, or who is aggrieved by the allocation of land as entered in the adjudication register, may within sixty days of the date upon which the notice mentioned in section 25 of this Act is published … inform the adjudication officer stating the grounds of his objection, and the adjudication officer shall consider the matter with the committee and may dismiss the objection, or if he thinks the objection to be valid, order the committee to take such actions as may be necessary to rectify the matter and for this purpose the committee may exercise all or any of the powers conferred by section 21 of this Act”

20. The 1st and 2nd respondents submitted that from the forgoing examination of the scheme of the Act, it is manifestly evident that the centrality of the committee is maintained throughout and it is mandatory for the land adjudication officer to sit with the committee even after the completion of the adjudication register, although the final arbiter remains the land adjudication officer who may also on his own “correct any clerical error of a like nature in the adjudication register.”

21. The respondent also cited the provisions of section 26 (3) of the Land Consolidation Act cap 283 which provides that-;“No appeal shall lie against any decision by the adjudication officer to dismiss an objection or order rectification or to award compensation in lieu of rectification, as the case may be, but the minister or any person to which compensation has been awarded and who is dissatisfied with the amount awarded by the adjudication officer may apply to a subordinate court held by a resident magistrate for its reversion in such manner as my be prescribed,” and submitted that that section does not apply to the preset case. The 1st and 2nd respondents argued that the section relates to objection to the adjudication register and only applies where a party considers the register to be inaccurate or incomplete or is aggrieved by the allocation of land as entered in the adjudication register. They submitted that section 26 (3) of the Land Consolidation Act estops an appeal from the decision of the adjudication officer as to rectification of the register or an award of compensation in lieu of rectification.

22. The 1st and 2nd respondents submitted that section 8 of the Land Consolidation Act has the same effect as section 30 of the Land Adjudication Act as both sections estops any court from hearing any dispute as to “proceedings in which the ownership or the existence under native law or custom” in land adjudication areas and land adjudication section until the register has become final and a consent is given by the adjudication officer to the institution of a suit in the case of a land adjudication area.

23. The 1st and 2nd respondents argued that the consent letter given to the 1st and 2nd respondents dated March 8, 2010 was consent under section 8 (1) of the Land Consolidation Act, which in effect make the 1st and 2nd respondents to properly be before court.

24. The 1st & 2nd respondents relied on the case of M’arimi RubwavRutere Nkanata(2006)eKLR where the defendant raised a preliminary objection to the hearing of the suit on grounds that the suit was in contravention of section 26 (3) of the Land Consolidation Act, and the court held that the plaintiff was properly before court as section 26(3) of the Land Consolidation Act was of no use to the defendant as the dispute is one of ownership under customary law which can be dealt with by courts of law hence a proper consent had been obtained to institute or proceed with a suit in that respect.

25. Further, the 1st & 2nd respondents relied on Stephen Kirimi M’rinturivLand Adjudication and Settlement Officers Igembe District & 3 others: Peter Kumbu Kimunya & another (Interested parties) 2020) eKLR.

26. The 1st and 2nd respondent argued that the suit parcels were in Amwathi-mutuati adjudication section which fell under Land Consolidation Act cap 283 and that the same was evident in the consent given by the adjudication officer. The 1st and 2nd respondents submitted that the court cannot use two acts to determine whether it has jurisdiction or not and stated that it is worth noting that cap 283 has no provisions for appeal to the minister so an aggrieved party can come to court.

27. The 1st and 2nd respondents further submitted that they had in their pleadings in the lower court raised the issue of fraud on the part of the appellant and submitted that the honourable court had jurisdiction therefore to hear the matter as not every adjudication section falls under cap 284.

28. The 1st and 2nd respondents stated that with regard to section 29 – 30 of the Land Adjudication Act, they acknowledged that the suit land was under adjudication and further appreciated that the process of dispute resolution while adjudication is in progress is provided for under the Land Adjudication Act, cap 284 Laws of Kenya. They stated that section 26 – 30 of the Act gives an elaborate process of dispute resolution.

29. The 1st and 2nd respondents submitted that they appreciate that section 30 of the Land Adjudication Act stays all suits in respect to land suits unless there is consent from the adjudication officer on the face of it. They argued that the Court of Appeal has made it clear that where a party has consent to file a case from the adjudication officer then he/she is free to contest the ownership in court.

30. The 1st and 2nd respondents concluded by submitting that they obtained the consent needed to come to court and technicalities should not be used as an excuse to hinder justice from being carried out to deserving parties.

Analysis And Determination 31. I have considered the record of appeal, the grounds of appeal and the submissions filed. The issue before me is basically whether the trial court in the impugned ruling overlooked that the suit filed in the lower court was in contravention of the express and mandatory provisions of section 8 (1) & (2) of the Land Consolidation Act cap 283 Laws of Kenya and section 30 of the Land Adjudication Act cap 284 Laws of Kenya, and therefore lacked the jurisdiction to entertain the suit and misdirected himself by giving the directions made.

32. When an issue is raised on the jurisdiction of a court to hear and determine a matter, then the same must be heard and determined first as it might have the effect of determining the suit. The issue of jurisdiction is a pure point of law which if successfully raised has the potential of disposing of the suit at the preliminary stage.

33. InRepublic v Karisa Chengo & 2 others [2017] eKLR, the Supreme court of Kenya held:-“Jurisdiction has emerged as a critical concept in litigation. Halsbury’s law of England (4th ed.) Vol 9 at 350 thus defines “jurisdiction” as “… the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for decision.” John Beecroft Saunders in his treatise Words and Phrases Legally Defined Vol 3 at page 113 reiterates the latter definition of the term jurisdiction as follows;-“By jurisdiction is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision.The limits of this authority are imposed by the statute, charter or commission under which the court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited.A limitation may be either as to the kind and nature of the actions and matter of which the particular court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics… Where a court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”

34. In the celebrated Court of Appeal decision in Owners of Motor Vessel Lillian’s’vCaltex Oil ( Kenya) Ltd [1989] eKLR Nyarangi JA famously held:“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it.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 pending other evidence.”

35. Therefore a court of law downs its tools in respect of a matter the moment it holds the opinion that it is without jurisdiction.

36. The preliminary objection dated July 26, 2021 raised by the appellant before the lower court was that the suit offended the provisions of section 8 (1) & (2) of the Land Consolidation Act as read with section 30 of the Land Adjudication Act and therefore the court did not have jurisdiction to proceed with the matter.

37. Section 8(1) and (2) of the Land Consolidation Act provides as follows:“(1)subject to the provisions of this section, no person shall institute and no court whatever shall take cognizance of, or proceed with or continue to hear and determine, any proceedings in which the ownership or the existence under native law and custom of any right or interest whatsoever in, to or over any land in an adjudication area is called in question or is alleged to be in dispute unless the prior consent in writing of the adjudication officer to the institution or continuance of such proceedings has been given(2)No officer of any court whatever shall issue any plaint or other legal process for the institution or continuance of any proceedings which by virtue of the provisions of subsection of this section are for the time being prohibited, except upon being satisfied that the consent required by those provisions has been given. ”

38. Section 30 of the Land Adjudication Act provides as follows-;“(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 the Act.(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 sub section (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.(4)The above provisions of this section do not prevent a final order or decision of a court made or given in proceeding concerning land in an adjudication section being enforced or executed, if at the time this Act is applied to the land the order or decision is not subject of an appeal and the time for appeal has expired.(5)A certificate signed by an adjudication officer certifying land to be, or to have become on a particular date, land within an adjudication section shall be conclusive evidence that the land is such land.(6)Every certificate purporting to be signed by an adjudication officer shall be presumed to be so signed unless the contrary is shown.”

39. The court has perused the pleadings in the case. In paragraph 10 of the plaint dated February 1, 2017, the 1st and 2nd respondents herein pleaded that they had “obtained the necessary consent from the land adjudication officer to file this suit”. Indeed, they annexed a copy of the said consent dated January 17, 2016 which states-;“The registrarHigh court of Kenya – Land & Environment) MeruRE; Consent of land adjudication officer to hearing of land suit p/No 2437 Amwathi/mutuati/11 “a” adjudication section: Jackson Muratanya Kaberia & Isaac Mwithali Muyuri v John Benard NthukuUnder the provisions of section 8 (1) of the Land Consolidation Act (cap 283) Laws of Kenya, the land adjudication officer for Igembe adjudication area within Igembe district do hereby consent to the institution of proceedings as specified in the schedule below. Relating to the land within the Amwathi/mutuati/II ‘A’ adjudication section. I shall in due course require a copy of the final orders made for each of the case listed in the schedule.ScheduleParcel No 2437 Amwathi/Mutuati II “A” adjudication section (judicial review)The consent is valid for period of sixty (60 days) and will be null and void if no proceedings are instituted within the specified period.Dated January 17, 2017. MunyaloSub county land adjudicaiton and settlement officerIgembe Central/north/sough sub countiesc.c the state counsel Meru”

40. There is also an admission by the 1st and 2nd respondents in their submissions that the suit land was under adjudication and further appreciated that the process of dispute resolution while adjudication is in progress is provided for under the Land Adjudication Act. They pointed out, and rightly so in my view, that sections 26 – 30 of the Land adjudication Act give elaborate process of dispute resolution.

41. Whereas the 1st and 2nd respondents’ position is that there was consent given by the land adjudication officer, I note that the consent in question has two conflicting dates. At the top of the letter, the date is given as February 1, 2016, while at the bottom, the date is indicated as February 1, 2017. It may as well be that one of the dates is an error.

42. The two confusing dates in the consent notwithstanding, the consent that was given by the land adjudication officer was specifically stated to be for the institution of “judicial review” proceedings. However, the suit that was filed by the 1st and 2nd respondents before the subordinate court was commenced by way of a plaint. I do not think that that was the judicial review proceedings that the land adjudication officer contemplated in the consent that he gave. The court has not been shown that there was another consent given for the institution of a suit in the manner the 1st and 2nd respondents commenced their suit. Therefore, going by the provisions referred to under the Land Consolidation Act and the Land Adjudication Act which expressly bar courts from determining disputes involving land under those Acts, unless consent is given, I find that the preliminary objection that was raised by the appellant had merit. In the absence of consent, and specifically a consent to institute proceedings, in the manner used by the 1st and 2nd respondents which was by way of a plaint and not judicial review as expressed in the consent given, in my view the trial magistrate had no jurisdiction and ought to have downed his tools and not give directions as he did.

43. In this case, the 1st and 2nd respondents should have had their dispute to be heard under section 26 of the Land Adjudication Act, cap 284 Laws of Kenya which provides:“Objection to adjudication register1. Any person named in or affected by the adjudication register who considers it to be incorrect or incomplete in any respect may within sixty days of the date upon which the notice of completion of the adjudication register is published object to the adjudication officer in writing, saying in what respect he considers the adjudication register to be incorrect or incomplete.2. The adjudication officer shall consider any objection made to him under sub section (1) of this section, and after such further consultation and inquiries as he thinks fit he shall determine the objection.”“29 Appeal1. Any person who is aggrieved by the determination of an objection under section 26 of this Act may within sixty days after the date of determination, appeal against the determination to the minister bya.Delivering to the minister an appeal in writing specifying the grounds of appeal andb.Sending a copy of the appeal to the director of land adjudication and the minister shall determine the appeal and make such order thereon as he thinks just and the order shall be final.2. The minister shall cause copies of the order to be sent to the director of land adjudication and to the chief land registrar.3. When the appeals have been determined, the director of land adjudication shall-;a.Alter the duplicate adjudication register to conform with the determination, andb.Certify on the duplicate adjudication register that it has become final in all respects, and send details of the alterations and a copy of the certificate to the chief land registrar, who shall alter the adjudication register accordingly.4. Notwithstanding the provisions of section 38 (2) of the interpretation and General Provisions Act (cap 2) or any other written law the minister may delegate by notice in the gazette, his powers to hear appeals and his duties and functions under this section to any public office by name or to the person for the time being holding any public office specified in such notice, and the determination, order and acts of any such public officer shall be deemed for all purposes to be that of the minister.

44. The 1st and 2nd respondents should not have instituted the plaint before exhausting the available remedies under statute. Of course they could still have filed suit if they first obtained consent to do so, instead of using a consent which was specifically for judicial review proceedings to file a plaint.

45. The 1st and 2nd respondents have not demonstrated that indeed they exhausted the available mechanisms before turning to the court for intervention and the trial magistrate should have declined to entertain the suit.

46. While the learned trial magistrate seems to have appreciated that he had no jurisdiction and thus gave directions on how the dispute was to be re-heard, in my view the moment a court finds that it has no jurisdiction there is no other option other than to down its tools. In my view, the learned magistrate had no jurisdiction to give the directions that he made. On that ground, the appeal must succeed.

47. In the result, I find merit in the appellant’s appeal. The same is allowed in the following terms-a.The ruling delivered on November 17, 2021 in Maua ELC No 56 of 2018 is set aside.b.The preliminary objection dated July 26, 2021 is upheld and the suit filed in the lower court is struck out with costs.c.Costs of this appeal to the appellants to be borne by the 1st and 2nd respondents.

It is so ordered.

DATED SIGNED AND DELIVERED AT MERU THIS 8TH DAY OF MARCH 2023In the presence ofC.A KibagendiMuthomi Njeru for appellantMs Rimita for 1st and 2nd respondentsNo appearance for A.G for 3rd and 4th respondentC.K YANOJUDGE