Mburugu & another v Kibaki & Mburi (Suing as the Legal Representatives of the Estate of Mathew M’nabea – Deceased) & 3 others (Environment and Land Appeal E051 of 2024) [2025] KEELC 7612 (KLR)

Although the preliminary objection did not expressly cite Order 2 rule 15(1), it sought striking out of the plaint and notice of motion for being vexatious, frivolous and an abuse of process, and for failure to disclose a reasonable cause of action. The resulting order was therefore made under Order 2 rule 15(1), and an appeal therefrom requires no prior leave under Order 43 rule 1(1).

The suit parcels were in Mbwaa 1 Adjudication Section and the adjudication register was not final. The estate did not aver or annex any consent, and did not contest these facts. Section 30(1) bars institution and entertaintainment of such suits without written consent; absent the consent, the Chief Magistrate Court had no jurisdiction.

The Land Adjudication Act establishes elaborate organs for ventilating grievances over interests in land in adjudication sections. Following the Karume, Muthinja and Abdille authorities, where Parliament has prescribed a dispute resolution procedure, it must be strictly followed before invoking the courts. The estate ignored these mechanisms, contrary to the Act.

The trial court had held jurisdiction was not clearly absent and deferred the question. On appeal, the ELC found the suit violated Section 30(1) and the exhaustion doctrine, both of which barred the court's jurisdiction; hence the ruling dismissing the preliminary objection was reversed and the suit struck out.