Dzivo & 11 others (Suing on Their Own Behalf and on Behalf of Members of South Samburu Group Ranch) v Export Processing Zones Authority & 2 others (Civil Appeal E089 of 2023) [2026] KECA 1120 (KLR)
The bottom line
#Kenya's Court of Appeal ruled land-fraud claims belong in the Environment and Land Court, and the National Land Commission cannot review its own decisions.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge rightly upheld the Preliminary objection on the basis of the doctrine of exhaustion
- 2.Whether the Appellants' claim properly fell within the jurisdiction of the Commission
- 3.Whether the Appellants' claim ought to have been lodged before the Land Acquisition Tribunal
Key legal issues
#Whether the doctrine of exhaustion barred the suit
No. The trial judge wrongly sanctioned EPZA's appeal before the Commission, which had no jurisdiction to sit on appeal over its own decision; the doctrine could not require exhaustion of an illegal process.
Section 14 of the National Land Commission Act and Regulation 30 of the Review of Grants and Dispositions Regulations create an appeal to the Environment and Land Court, not back to the Commission, which becomes functus officio upon rendering a determination. Allowing the EPZA's intra-Commission appeal perpetuated proceedings outside the Commission's statutory mandate. Courts retain jurisdiction where the alternative mechanism is inadequate or legally untenable, and the trial court's order that the process be exhausted therefore sanctioned an illegality.
Whether the claim ought to have gone to the Land Acquisition Tribunal under Section 133C of the Land Act
No. The Tribunal's mandate is confined to appeals relating to compulsory acquisition and compensation awards; if anyone defaulted it was EPZA, not the Appellants.
Sections 133C and 133D of the Land Act empower the Land Acquisition Tribunal to hear appeals from the Commission only concerning the compulsory acquisition process and compensation awards. The Appellants' claim concerned ownership, fraud, validity of title and unlawful registration, not compensation quantum. Moreover, since EPZA was dissatisfied with the Commission's decision on compensation, it was EPZA that failed to file the appeal to the Tribunal. The trial judge misconstrued the appeals process.
Whether the suit lay within the original jurisdiction of the Environment and Land Court
Yes. Fraud allegations required viva voce evidence and fell within the ELC's original jurisdiction, not any administrative forum.
The plaint pleaded particulars of fraud and illegality in the subdivision, transfer and registration of the disputed portion. Citing Bataniwalla, whether fraud is established can only be determined at trial when evidence is tested under cross-examination. Questions of ownership, gift, and unauthorized transfer by Group Ranch members were not resolvable by the Commission or the Land Acquisition Tribunal, so the learned Judge erred in holding that the Appellants bypassed statutory mechanisms.
Legal principles established
#- The National Land Commission, having rendered a determination, becomes functus officio and cannot sit on appeal over its own decision; the proper recourse is an appeal to the Environment and Land Court under Regulation 30 or judicial review
- The doctrine of exhaustion cannot be invoked to compel a party to pursue a remedy before a forum that lacks jurisdiction or where the statutory mechanism is ineffective, unavailable or incapable of granting appropriate relief
- Allegations of fraudulent and unlawful acquisition and registration of land invoke the original jurisdiction of the Environment and Land Court and are not matters for the Land Acquisition Tribunal or the Commission's appellate/compensatory mechanisms
Court orders
#- 1.The appeal is allowed with costs to the Appellants
- 2.The Ruling of the Environment and Land Court delivered on 21st October 2022 is set aside
- 3.The Appellants' suit is remitted back for hearing and determination by another Judge of the Environment and Land Court other than Hon. Justice Dena
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Jurisdiction invoked
- First appellate jurisdiction over the Environment and Land Court under the appellate framework for ELC decisions (Art. 162(2)(b) scheme); no specific provision pleaded in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Therefore Regulation 30 of the National Land Commission (Review of Grants and Dispositions of Public Land) Regulations, creates an external appellate process to the court, and not an appeal back to the Commission itself. Once the Commission has rendered its determination, it is rendered functus oficio
the doctrine of exhaustion cannot be invoked to compel a party to pursue a remedy before a forum that lacks jurisdiction or where the statutory mechanism is inefiective, unavailable or incapable of granting appropriate relief
In sum, the appeal is merited and is allowed with costs to the Appellants. We set aside the Ruling of the Environment and Land Court delivered on 21st October 2022, and remit the Appellants' suit back for hearing and determination by another Judge of the Environment and Land Court other than Hon. Justice Dena.
Given that there was no statute or law that empowered the Commission to sit on appeal over its own decision, we find that, the trial judge wrongly authorized EPZA's appeal to be concluded when the Commission clearly had no jurisdiction to entertain it
Issues in the judgment
#Case names cited by the court (Narok County Council, Kones, Njenga Karume, Jawara, United Millers) appear within quoted passages from other judgments rather than as the court's own discussion, making treatment labels partly inferential
The judgment records the trial court as directing that the suit be stayed pending completion of processes, while the final orders set aside a 'Ruling' delivered 21st October 2022; the underlying suit number and full case number of the appeal are not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dzivo & 11 others (Suing on Their Own Behalf and on Behalf of Members of South Samburu Group Ranch) v Export Processing Zones Authority & 2 others (Civil Appeal E089 of 2023) [2026] KECA 1120 (KLR)", Case Analysis (2026). Civil Appeal (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1120/eng@2026-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.