https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5096

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT HOMA-BAY** **ELC CASE NO. E019 OF 2026** **SAMWEL KIAAMBWE OPERE** (**Suing as the** **Administrator of the Estate of OPERE LILA, Deceased and on behalf of the Beneficiaries of the said Estate)** **..................................PLAINTIFFS** **VERSUS** **BENARD ONDERE & 30 OTHERS..................................DEFENDANTS** **RULING** 1. The defendants filed the preliminary objection dated 18.6.2026 raising the following grounds of objection: 2. That the Honourable Court is Devoid and/or Bereft of Jurisdiction to entertain and/or adjudicate upon the subject dispute pursuant to Section 26 and 29 of Land Adjudication Act, Chapter 284 Laws of Kenya. 3. That in any event, the instant suit is barred by provisions of Section 4(2) of the Limitations of Actions Act, Chapter 22 and Section 3 of Public Authorities Act, Chapter 39 Laws of Kenya. 4. That at any rate, the instant suit does not disclose and/or capture any reasonable cause of action against the 1st – 28th Defendants. 5. That the instant suit amounts to and/or constitutes an abuse of the due process of Court. 6. The suit herein amounts to forum shopping. 7. The Preliminary Objection was disposed of by way of Written Submissions herein summarized. **Defendants’ submissions.** 1. Vide its submissions dated 2nd July 2026 in support of the Preliminary Objection dated 18th June 2026, the Defendants outlined the following issues for resolution arguing that the court lacks jurisdiction ab initio and recited as they appear on the Preliminary objection. 2. On the first and forth issue for determination, the Defendants urged that they are raising an issue of jurisdiction and limitation. The two issues are pure points of law and that from the pleadings lodged, it can be discerned that the Plaintiff as at the year 2011, same was aware of the adjudication process and even attempted to evict the Defendants from PLOT 2463 on grounds that the land belonged to his father. The Defendants further pointed out that KITAWA ADJUDICATION SECTION was declared to be so in the year 2009 and same was completed upon the issuance of Title Deeds in the year 2018. During the adjudication process the Plaintiff was busy in courts instead of raising an objection with the land Adjudication Officer. 3. The Defendants cited *Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd* [1969] EA 696 as an authority that established the classic definition of a preliminary objection as a pure point of law argued on the assumption that the opponent's facts are correct, Kandara Residence Association & Another vs Ananas Holdings Limited & 4 Others; Director of Survey & 3 Others (INTERESTED PARTIES) [2020] eKLR, Section 26 of the Land Adjudication Act, Chapter 284 Laws of Kenya. Amarnath (suing on behalf of the Estate of the Late Amarnath Gupta) vs Kazungu & 2 Others [2023] KECA 1280 (KLR) as an authority to establish the process that has to be followed by a party aggrieved by a decision made under Section 26of the Act as well as **Lepore Ole Maito V Letwat Kortom & 2 Others (2016) KEELC 366 (KLR)** among other authorities. 4. The Defendants from the cited authorities and law urged that that the plaint seeks to enforce rights falling under the Land Adjudication Act and that Section 26 of the Land Adjudication Act provides a clear dispute resolution mechanism requiring objections to the adjudication register to be made to the Land Adjudication Officer within 60 days, followed by an appeal to the Minister, if necessary. They averred that the plaintiffs had not demonstrated that they had exhausted those remedies and it followed that they were invoking the jurisdiction of this court improperly. They urged the court that having (plaintiff) failed to follow the right laid down procedure, the suit herein ought to be struck out. 5. On the third issue on whether the suit is an abuse of the due process of Court, the defendants urged that the Plaintiff’s suit was dismissed for being statute barred and want of jurisdiction. That this court cannot issue any other order contrary to the orders issued on the 30th April 2026 as thus would amount to this court sitting on Appeal on own decision. The defendants cited the **case of Alice Kerubo Nyambati vs Ochoki Mogaka & Another Kisii HCC No. 263 (unreported) and Gitau Kamau v Ndungu Kamau & Another [2017] eKLR** to support this issue. 6. The plaintiffs equally filed their submissions and submitted that the preliminary objection did not meet the threshold of a preliminary objection. They averred that from the objection, there were disputed facts. On the issue of jurisdiction under sections 26 and 29 of the Land Adjudication Act, the plaintiff urge that what the plaint challenges is a distinct and later event, the fraudulent subdivision on the already adjudicated Plot 2463 (adjudicated and fraudulently awarded) into thirty-three resultant parcels carried out by the 29th and 30th Defendants in collusion with the 1st to 28th Defendants, without notice to the Plaintiff, and concealed from him until 25th May 2023. 7. The Plaintiff further points out that under paragraph 5 of the defendants’ submissions, which states that the suit properties were created “after the objection proceedings vide OBJECTIONS NO’s 44-48 OF 2014 which sub-divided the original PLOT 2463 Kitawa Adjudication Section into the suit properties was a confirmation of their case. That on the defendants’ own account, the acts complained of occurred in and after 2014, generated through a further, later round of proceedings to which the Plaintiff was never served or made party and to which the sixty-day window under Section 26 of the Land Adjudication Act could not sensibly have applied, since the Plaintiff had no notice of it. 8. The defendant further stated that Section 9(4) of the Fair Administrative Actions Act, 2015, expressly vests this court with discretion to exempt an application from the exhaustion requirement where it is in the interest of justice to do so. **Determination** 1. I have considered the defendants’ preliminary objects, the submissions from both the Plaintiff and the defendant, cited authorities and the applicable law as well as the Ruling delivered by **Hon. DR.IUR FRED NYAGAKA, J in Homabay ELCLC/E021OF 2025 on 30th day of April 2026**. 2. It is important to note that the Court has carefully examined the pleadings in **Homa Bay ELCLC No. E021 of 2025** alongside those in the present suit and is satisfied that the two are not identical. Notably, paragraphs **15, 16 and 36** of the present Plaint contain material averments that distinguish this suit from the earlier proceedings. Accordingly, the Court shall determine the Preliminary Objection on the basis of the pleadings before it in the present suit, notwithstanding the earlier case. 3. The law on preliminary objections is settled. In **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696**, Law JA stated that: *“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.”* Sir Charles Newbold P. further observed that: *“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the opposite party are correct. It cannot be raised where any fact has to be ascertained or where what is sought is the exercise of judicial discretion.”* 1. Therefore, where the Court is required to interrogate contested facts or examine evidence before reaching a determination, the objection ceases to be a true preliminary objection. 2. On the issue of whether this Court lacks jurisdiction by virtue of Sections 26 and 29 of the Land Adjudication Act, the Defendants submit that the Plaintiff's claim challenges the adjudication process undertaken in Kitawa Adjudication Section and, therefore, ought to have been pursued through the objection procedure under Section 26 of the Land Adjudication Act and thereafter, if necessary, by way of an appeal to the Minister under Section 29 of the Act. 3. They contend that the Plaintiff was aware of the adjudication process as early as 2011 but failed to lodge any objection within the prescribed sixty days, thereby depriving this Court of jurisdiction. 4. The Plaintiff takes a contrary position. He submits that the present dispute is not directed at the adjudication process contemplated under Sections 26 and 29 of the Act. Rather, he alleges that after the adjudication process had culminated in the creation of Plot No. 2463, the 29th and 30th Defendants, acting in collusion with the 1st to the 28th Defendants, fraudulently subdivided the land into thirty-three parcels without his knowledge or participation and thereafter procured registration of the resultant parcels. 5. The Plaintiff has specifically pleaded under paragraph 15 of the Plaint that the dispute concerns unconstitutional and unlawful conduct by public officers who allegedly abused their statutory mandate to deprive his family of land through fraud and collusion. Under paragraph 16 of the Plaint, the Plaintiff further invokes Section 9(4) of the Fair Administrative Action Act, 2015, and pleads exceptional circumstances justifying exemption from the doctrine of exhaustion. He contends that; the 29th Defendant actively frustrated and obstructed his attempts to pursue administrative remedies, the alleged fraud was deliberately concealed from him, he was never notified of the objection proceedings which culminated in the subdivisions, the appeal mechanism under Section 29 is only available to a party who participated in objection proceedings under Section 26 and the impugned subdivision, registration and issuance of titles occurred after the adjudication process and therefore fall outside the statutory dispute resolution mechanism. 6. The Defendants submit that these averments cannot oust the mandatory provisions of Sections 26 and 29 of the Land Adjudication Act. 7. Section 26 of the Land Adjudication Act provides that 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, stating in what respect he considers the adjudication register to be incorrect or incomplete. The adjudication officer considers any objection made to him under subsection (1) and after further consultation and inquiries as he thinks fit, he determines the objection. This section provides a clear and mandatory dispute resolution mechanism. 8. Section 90 of the Fair Administrative Act provides for the Doctrine of Exhaustion as follows; – 9. Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution. 10. The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted. 11. The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1). 12. Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice. (5)A person aggrieved by an order made in the exercise of the judicial review jurisdiction of the High Court may appeal to the Court of Appeal. 22. The doctrine of exhaustion of administrative remedies is a fundamental principle in administrative law. It requires a party who is aggrieved by an act, decision, or ruling of an administrative agency to first use and complete all available remedies within the administrative system before going to court. In simple terms, when the law or regulations provide an administrative process for review, appeal, reconsideration, protest, or correction, the affected party must ordinarily follow that process first. Courts generally will not intervene until the administrative follow the process first. Courts generally will not intervene until the administrative agency has had the full opportunity to correct its own errors, apply its expertise, and render a final administrative determination. The doctrine is based on the idea that administrative agencies are part of the legal system. They are created to perform specialized functions and court should not prematurely intervene. 1. The doctrine applies when; 2. There is an administrative agency with authority over the matter. 3. The law, rule, regulation, or procedure provides an administrative remedy. 4. The remedy is still available. 5. The agency has not yet made a final determination. 6. The party seeks court intervention before completing the administrative process. 7. The law is settled since the Speaker of the **National Assembly v Karume (Civil Application 92 of 1992) [1992] KECA 42 (KLR) (29 May 1992)** (Ruling) that -“There is considerable merit in the submission that where there is a clear **procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.” However, it is important to note the doctrine of exhaustion is no longer regarded as absolute.** 8. The principle of non-exhaustion of administrative remedy is not an iron-clad rule. There are instances when it may be pierced and judicial action may be resorted to immediately. 9. Various considerations have been taken into account by Courts in considering whether an exception lies, and the list of exceptional circumstances is not closed. **In R. vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others Ex Parte The National Super Alliance (NASA) Kenya (2017) eKLR** the High Court held as follows as regards the application of the exception: - **“[46] What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. [47]. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 Others vs Aelous (K) Ltd and 9 Others (2016) eKLR. What constitutes exceptional circumstances depends on the facts of each case.** 1. In the case of [**Fleur Investments Limited v Commissioner of Domestic Taxes & another [2018] KECA 341 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2018/341/eng%402018-04-20)the court of appeal stated that; “**For the reasons we have given earlier and others that will become apparent, there were definitely exceptional circumstances that existed in this case that were outside the ambit of the Income Tax Tribunal which called for intervention by way of judicial review.** **Whereas courts of Law are enjoined to defer to specialised Tribunals and other Alternative Dispute Resolution Statutory bodies created by Parliament to resolve certain specific disputes, the court cannot, being a bastion of Justice, sit back and watch such institutions ride roughshod on the rights of citizens who seek refuge under the Constitution and other legislations for protection. The court is perfectly in order to intervene where there is clear abuse of discretion by such bodies, where arbitrariness, malice, capriciousness and disrespect of the Rules of natural justice are manifest. Persons charged with statutory powers and duties ought to exercise the same reasonably and fairly.** **Similarly, Article 47 of the Constitution provides as follows in this regard: (1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.** 1. The question therefore is whether exceptional circumstances have been established. In the present case, the Plaintiff alleges that the impugned fraud occurred after adjudication had been completed, that he was excluded from the objection proceedings, that the alleged fraud was actively concealed by public officers and that he only discovered the impugned subdivisions in May 2023. These allegations are vigorously contested by the Defendants. Therefore, whether the Plaintiff participated in the adjudication proceedings; whether the subdivisions were undertaken after adjudication; whether the Plaintiff received notice of the objection proceedings; whether fraud was committed by public officers; whether the statutory remedies were deliberately frustrated; and whether the dispute falls outside Sections 26 and 29 are all factual issues requiring evidentiary interrogation. Determining those issues would necessarily require the Court to examine adjudication records, objection proceedings, correspondence, registers, mutation forms and oral evidence. Such an inquiry falls outside the scope of a preliminary objection as envisaged in **Mukisa Biscuit**. 2. Also, it is evident from the material before the court that the impugned adjudication process was concluded long ago making it impractical, if not impossible ,for the plaintiffs to resort to the procedure prescribed by Section 26 of that Act. The doctrine of exhaustion is not absolute. Courts retain the discretion to intervene where the alternative remedy is unavailable, ineffective, or illusionary. (See Nyaga v Riimi [2024] KEELC 13270 (KLR). 3. Accordingly, while the Plaintiff's pleadings do not, by themselves, confer jurisdiction upon this Court, they raise factual issues which, if ultimately proved, may bring the dispute within the recognized exceptions to the doctrine of exhaustion under Section 9(4) of the Fair Administrative Action Act. Those issues cannot properly be determined at this preliminary stage. 4. On the issue of whether the suit is statute barred. Section 4(2) provides that actions founded on tort must be brought within three years. 5. The Defendants submit that the suit is barred under Section 4(2) of the Limitation of Actions Act and Section 3 of the Public Authorities Limitation Act and indicated that the cause of action happened between the years 2011-2018. 6. On the other hand, the Plaintiff pleads that the alleged fraud was concealed from him until 25th May 2023 and that the cause of action accrued upon discovery of the alleged fraud. 7. Therefore, whether the Plaintiff discovered the alleged fraud in 2023, whether he ought reasonably to have discovered it earlier and whether the statutory exceptions relating to fraud apply are factual questions incapable of determination without evidence. The Court cannot therefore determine limitation purely from the pleadings. 8. On the issue of whether the Plaint discloses a reasonable cause of action, the Defendants contend that the Plaint discloses no reasonable cause of action against the 1st to the 28th Defendants. 9. The Plaint alleges fraud, collusion, unlawful subdivision, abuse of statutory power and unconstitutional deprivation of property as established in the case of **J.A.O. v Homepark Caterers Ltd & 2 others [2004] KEHC 498 (KLR**). Whether those allegations are ultimately proved is a matter for trial. At this stage, the Court cannot conclude that the Plaint discloses no reasonable cause of action without examining evidence. 10. Knowledge of a statutory limitation is generally a **mixed question of fact and law**, rather than a pure point of law, whenever the exact time of accrual, discovery, or concealment is disputed. However, it can function as a **pure point of law** if the dates are entirely clear and undisputed from the face of the pleadings. 11. In the case of [Lenkoko v Meritei & another 2026] KEELC 2079 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2079/eng%402026-04-15) the court held **‘’Limitation is indeed a jurisdictional issue and, were clear and uncontested, can dispose of a suit at the preliminary stage. However, where a party invokes Section 26 on account of fraud, and the timing of discovery is contested, the Court must exercise caution.** **.In the present case, the Plaintiff has expressly pleaded fraud and alleged lack of knowledge of the impugned transactions. Determining whether the claim is time-barred would require the Court to investigate when the Plaintiff discovered or ought to have discovered the alleged fraud; and whether there was concealment by the Defendants.** **These are evidentiary matters that cannot be conclusively determined without a full hearing.** **In light of the foregoing, the Court finds that while, the Preliminary Objection raises a proper point of law on limitation, the fact that the Plaintiff has pleaded fraud the claim is brought within the ambit of Section 26 of the**[***Limitation of Actions Act***](https://kenyalaw.org/akn/ke/act/1968/21)**. The applicability of Section 26 cannot be determined without the benefit of evidence**.’’ 1. Lastly, on the aspect of whether the suit amounts to an abuse of process and forum shopping, the Defendants argue that the present proceedings seek to circumvent an earlier decision of this Court and therefore constitute forum shopping and abuse of process. The Plaintiff maintains that the present claim is founded upon a distinct cause of action based on fraudulent subdivisions discovered in 2023. 2. Therefore, whether the present proceedings are barred by the doctrine of res judicata or constitute forum shopping requires examination of the pleadings, proceedings and judgment in the previous suit together with the evidence in the present proceedings. Also, those issues equally cannot be determined without evidence. **Decision.** 1. Having considered the Preliminary Objection, the pleadings, the rival submissions and the applicable law, I find that the objections raised by the Defendants are intimately painted with disputed questions of fact. 2. Therefore, the preliminary objection fails and is dismissed. Costs shall be in the cause. RULING, DATED AND DELIVERED AT HOMA BAY THIS 16TH DAY OF JULY 2026. **In the Presence of;** 1. Mwamu for the plaintiff – Present 2. Ochwal for the 1st to 28th Defendants, 3. 29th, 30th and 31st Defendant- Absent. JUSTICE J.W WANYONYI – JUDGE 16/07/2026