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ELCDismissed· [2025] KEELC 6749 (KLR)

Mbulia Community Land Defenders & 3 others v Mwaizinga & 16 others (Environment and Land Case E015 of 2025) (Environment and Land) [2025] KEELC 6749 (KLR)

Environment and Land Court
8 October 2025
2,381 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Voi (E. K. Wabwoto, J) determined an Amended Notice of Preliminary Objection dated 26th August 2025 raised by the 1st to 16th Defendants in a suit concerning the internal management and governance of Mbulia Community Land. The Defendants contended that the court lacked jurisdiction because the dispute fell under the Community Land Act, 2016 internal dispute resolution mechanisms (Section 39, Regulation 25(1) and the community constitution), that the suit offended the doctrines of exhaustion and ripeness, that unlimited original civil jurisdiction vests in the High Court under Article 165(3)(a), and that the 1st Plaintiff lacked locus standi as a non-body corporate. The Plaintiffs opposed, relying on Section 13 of the Environment and Land Court Act, Section 42(1) of the Community Land Act, and evidence of their failed attempts at alternative dispute resolution, including a letter of 5th November 2024 requesting ADR and unsuccessful requests to convene an Annual General Meeting. The court framed a single issue: whether it had jurisdiction. It reiterated that jurisdiction is everything (Owners of the Motor Vessel 'Lillian S'), and that the exhaustion doctrine applies only where the alternative forum is accessible, affordable, timely and effective. Finding that the Plaintiffs had made genuine efforts to resolve the dispute through statutory mechanisms, the court held the suit could not be defeated by exhaustion or ripeness, distinguished Mwasighwa on its facts, and held the locus ground moot given the leave granted on 4th August 2025. The preliminary objection was dismissed in its entirety, with each party bearing its own costs.

Key legal issues

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01

Whether the doctrine of exhaustion under Section 39 of the Community Land Act barred the suit

Holding

The objection failed because the Plaintiffs demonstrated they attempted the internal dispute resolution mechanisms, including a letter dated 5th November 2024 requesting ADR and requests to convene an AGM, all unsuccessful.

Reasoning

The court held exhaustion applies only where the alternative forum is accessible, affordable, timely and effective. The Plaintiffs pleaded efforts to resolve the dispute and produced correspondence evidencing requests for ADR and for convening an AGM. Having made statutory attempts, they could not be dislodged from the seat of justice. The Mwasighwa decision was distinguished as the parties there had made no such efforts.

02

Whether the 1st Plaintiff lacked locus standi as a non-body corporate

Holding

The locus issue was moot because the court had on 4th August 2025 granted leave to the Plaintiffs to institute the suit.

Reasoning

The court noted its prior order of 4th August 2025 granting leave to institute the suit, rendering the locus standi ground of the preliminary objection moot and unsustainable.

p. 6
03

Whether the ELC has jurisdiction over disputes on internal management of registered community land

Holding

The court found jurisdiction under Article 162(2)(b) and Section 13 of the Environment and Land Court Act, which covers land administration and management and community land disputes.

Reasoning

The court set out Section 13(2) of the ELC Act conferring power to hear disputes relating to land administration and management, public, private and community land, and any other dispute relating to environment and land. The internal management dispute concerning membership and participation in community land affairs fell within this jurisdiction.

p. 5

Legal principles established

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  • The exhaustion doctrine applies only where the alternative forum is accessible, affordable, timely and effective; a party who has attempted statutory alternative dispute resolution cannot be defeated by the doctrine of exhaustion or ripeness.
  • A court's jurisdiction is derived from the Constitution, an Act of Parliament or settled judicial precedent, and a court acting without jurisdiction engages in nullity.

Court orders

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  1. 1.The preliminary objection raised by the 1st to 16th Defendants is dismissed in its entirety
  2. 2.Each party to bear own costs of the preliminary objection

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticle 165(3)(a)
  • Constitution of KenyaArticle 159(2)(c)
  • Environment and Land Court ActSection 13
  • Community Land Act, 2016Sections 39, 40, 41, 42(1), 46
  • Community Land Regulations, 2017Regulations 25(1), 27
  • Civil Procedure RulesOrder 1 Rule 8

Cases cited (4)

  • Owners of the Motor Vessel "Lillian S" vs Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties)
    (2020) eKLR
  • Mwasighwa & 55 Others vs Mbulia Community Land & 3 Others
    [2024] eKLR
  • Dawda K. Jawara vs Gambia
    ACmHPR 147/95-149/96
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011

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, "Mbulia Community Land Defenders & 3 others v Mwaizinga & 16 others (Environment and Land Case E015 of 2025)  (Environment and Land) [2025] KEELC 6749 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6749/eng@2025-10-08

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