Mutua & 197 others v Athi Water Services Board (Environment and Land Case 50 of 2019) [2026] KEELC 274 (KLR)
The bottom line
#A Kenyan court allowed landowners' compulsory acquisition case to proceed because the Land Acquisition Tribunal did not yet exist when they filed suit.
What this practically means
#Executive summary
#Key legal issues
#Nature of a preliminary objection
A preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded by the other side are correct, per Mukisa Biscuits
The court adopted the definition in Black Law Dictionary and the classic Mukisa Biscuits formulation, finding the jurisdictional objection was a pure point of law properly brought at any time before final conclusion of the case, and that the Defendant's objection was properly before the court.
Allocation of jurisdiction over compulsory acquisition disputes
The Land Acquisition Tribunal has first-instance jurisdiction over compulsory acquisition disputes; the ELC's jurisdiction under Section 13(2)(b) is appellate only
Reading Sections 133C(6) and 133D of the Land Act together, Parliament ousted the primary jurisdiction of the ELC and vested first-instance jurisdiction in the Tribunal, leaving the ELC with appellate jurisdiction on questions of law. However, the exception applies where the Tribunal was not in existence when the suit was filed.
Exhaustion of alternative remedies where the Tribunal was not operational
The exhaustion doctrine is settled law but could not be enforced against suits filed before the Land Acquisition Tribunal became operational in 2023
The Supreme Court has affirmed that where a statutory remedy exists it must be pursued first, and courts are the final resort under Article 159. But the court took judicial notice that the Tribunal only came into effect on 11th September 2023, and the suit predated its operationalisation, so dismissal for non-exhaustion would be untenable.
Legal principles established
#- First-instance jurisdiction over disputes relating to compulsory acquisition of land vests in the Land Acquisition Tribunal under Section 133C(6) of the Land Act, with the ELC having appellate jurisdiction under Section 133D
- The exhaustion doctrine does not apply where the statutory tribunal was not operationalised at the time the suit was filed
Court orders
#- 1.The preliminary objection is dismissed
- 2.This ruling applies mutatis mutandis to ELC No. 64 of 2019
- 3.Costs to be in the cause
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; Sections 13(2) and 133C(6) & 133D of the Land Act, No. 6 of 2012 (as amended 2019)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- National Land Commission v Charlise Development Company Ltd (Environment and Land Appeal E118 of 2025) [2026] KEELC 2059 (KLR)[2026] KEELC 2059 (KLR)16 Apr 2026applied
Cite this brief
#Cite this brief
Caselaw, "Mutua & 197 others v Athi Water Services Board (Environment and Land Case 50 of 2019) [2026] KEELC 274 (KLR)", Case Analysis (2026). ELC (Machakos) - number not stated in judgment; related to ELC No. 64 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/274/eng@2026-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.