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ELCDismissedNot stated in extract (petition filed 13/3/2023)· [2025] KEELC 3856 (KLR)

Kyalo & 76 others v Director for Land Adjudication & Settlement & 4 others; National Land Commission & 64 others (Interested Parties) (Environment & Land Petition 1B of 2019) [2025] KEELC 3856 (KLR)

Environment and Land Court
9 May 2025
1,302 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The respondents filed a preliminary objection dated 27/3/2023 contending that the Environment and Land Court at Embu lacked jurisdiction over the petitioners' amended petition because the petitioners had not exhausted the dispute-resolution mechanism in Section 26 of the Land Adjudication Act, which requires objections to the adjudication register to be lodged with the adjudication officer within sixty days, with an appeal to the Minister. The petitioners, who claim long-standing possession of parcels in the Wachoro, Karaba and Riakanau adjudication sections and allege irregular allotment and titling to non-residents, argued that the objection turned on disputed facts (whether the adjudication register had been closed) and that the exhaustion doctrine did not apply to a concluded adjudication process. The interested parties, registered proprietors of Mbeere/Wachoro/642 and 1325, sought protection of their titles under Articles 40, 60 and 159(2). The court, applying the Mukisa Biscuit test, held that a preliminary objection must be a pure point of law decided on assumed pleaded facts. It found that the impugned adjudication process had concluded long ago, rendering the Section 26 remedy impractical, and that the doctrine of exhaustion is not absolute where the alternative remedy is unavailable, ineffective or illusionary, following Nyaga v Riimi. The preliminary objection was dismissed with costs in the cause. The petition itself remains pending determination.

Key legal issues

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01

Whether the preliminary objection met the Mukisa Biscuit threshold of a pure point of law

Holding

The objection could not be sustained on a pure point of law because exhaustion turned on disputed facts, including whether the adjudication register had been closed

Reasoning

The court reiterated the settled standard that a preliminary objection must be decided on assumed pleaded facts without ascertainment of facts or exercise of discretion. Since the petitioners disputed whether the adjudication register was closed, and the viability of the Section 26 remedy depended on that factual question, the objection required further evidence and could not succeed.

p. 2
02

Whether the doctrine of exhaustion/avoidance barred the constitutional petition given Section 26 of the Land Adjudication Act

Holding

No; the statutory objection procedure was no longer available or effective because the adjudication process was concluded long ago

Reasoning

While Section 26 provides a clear and mandatory mechanism of objection within sixty days of publication of the completed register, the adjudication process impugned by the petitioners concluded decades earlier. The remedy was therefore unavailable or illusionary, and the doctrine of exhaustion, which encourages judicial restraint, does not apply absolutely in such circumstances.

p. 3

Legal principles established

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  • A preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct; it fails if facts are disputed or require further evidence
  • The doctrine of exhaustion is not absolute; courts retain discretion to intervene where the alternative remedy is unavailable, ineffective or illusionary

Court orders

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  1. 1.The preliminary objection dated 27/3/2023 is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Land Adjudication ActSection 26
  • Constitution of Kenya, 2010Articles 40, 40(2) and (3), 47, 60, 61, 63(1) and (2), 159(2)

Cases cited (2)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Nyaga v Riimi
    [2024] KEELC 13270 (KLR)
Jurisdiction invoked
Articles 40, 47, 61 and 63(1) and (2) of the Constitution (invoked in the petition); court's jurisdiction contested via preliminary objection

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kyalo & 76 others v Director for Land Adjudication & Settlement & 4 others; National Land Commission & 64 others (Interested Parties) (Environment & Land Petition 1B of 2019) [2025] KEELC 3856 (KLR)", Case Analysis (2025). Not stated in extract (petition filed 13/3/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3856/eng@2025-05-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.