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ELCDismissedELC Constitutional Petition No. E004 of 2025· RULING: ELCLPET/E004/2025

Hassan Mwachamago Ali & 205 Others v County Government of Mombasa & 5 Others; National Land Commission (Interested Party)

Environment and Land Court of Kenya
24 September 2026
BAB.A. Akello
3,220 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 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 Petitioners, 211 squatters or residents of the Bububu Squatter Settlement Scheme in Mombasa, sued the County Government of Mombasa and five national land officials, alleging that adjudication, survey and allocation of the Scheme since 1999 were marred by fraud and illegality, violating their rights to fair administrative action, property, dignity and non-discrimination. They sought declarations, an order quashing the survey and allocation with a direction that the exercise commence de novo, and general damages. Before the merits, the 2nd to 6th Respondents, through the Attorney General, raised a preliminary objection on a single ground: that the Petition offends the doctrine of constitutional avoidance and should be struck out, the grievances being triable under the Land Act, the Land Registration Act or judicial review. The Petitioners, in person, countered that they had exhausted every avenue over twenty-five years, including complaints to the National Land Commission, which in January 2017 recommended nullification of the Scheme and fresh allocations - a recommendation never implemented. The court held the objection was a proper preliminary objection on a pure point of law, but rejected it on the merits. Constitutional avoidance is a rule of prudence, not a jurisdictional bar; the pleadings raise a genuine public-law dimension concerning a State-administered settlement process and prolonged institutional inaction, and a remedy unexercised for nine years despite the NLC's own recommendation is not adequate or effective. The objection was dismissed, directions were given for supplementary documents and trial bundles, mention was set for 23rd November 2026, and costs of the objection were reserved to the cause.

Key legal issues

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01

Whether the objection met the threshold of a proper preliminary objection

Holding

It did; the objection that the Petition offends constitutional avoidance is a pure point of law requiring no factual ascertainment.

Reasoning

Applying the Mukisa Biscuit test, the court found the objection requires only examination of the pleadings to ask whether the remedies sought could be pursued elsewhere, with no contested fact to resolve, so it is properly before the court.

02

Whether the Petition offends the doctrine of constitutional avoidance

Holding

No, not at this preliminary stage; the pleadings raise a substantive constitutional dimension concerning a State-administered settlement process and institutional inaction.

Reasoning

Classification follows the gravamen, not the caption. The Petition challenges the legality, equality and procedural fairness of a State-administered settlement process and the failure of public bodies to act on an NLC recommendation, which engages constitutional jurisdiction and defeats summary termination.

p. 14
03

Whether the alternative remedies pointed to are adequate and effective

Holding

A triable question exists as to their adequacy; the NLC's unimplemented 2017 recommendation renders the suggested remedies potentially futile.

Reasoning

The NLC, the body mandated under Article 67(2)(e) and Section 15 of the NLC Act to investigate historical land injustices, recommended nullification in January 2017 but nothing was done for nearly a decade. Directing petitioners back to the same bodies would send them in a circle with no exit.

p. 17

Legal principles established

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  • Constitutional avoidance is a rule of prudence, not a jurisdictional bar; it cannot be deployed where the alternative remedy is illusory or rendered no remedy at all by institutional inaction.
  • A remedy that exists only on paper, unexercised for years despite a clear recommendation by the constitutionally mandated body, is not an adequate alternative remedy.

Court orders

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  1. 1.The Notice of Preliminary Objection dated 23rd July 2025 dismissed
  2. 2.Any party wishing to file supplementary documents to do so within 14 days from the date of the Ruling
  3. 3.Parties to file their trial bundles within 7 days of the supplementary documents order
  4. 4.Mention on 23rd November 2026 to confirm compliance and fix a Hearing date
  5. 5.Costs of the Notice of Preliminary Objection to be in the cause
Jurisdiction invoked
Articles 22, 23, 165 and 258 of the Constitution of Kenya, 2010

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, "Hassan Mwachamago Ali & 205 Others v County Government of Mombasa & 5 Others; National Land Commission (Interested Party)", Case Analysis (2026). ELC Constitutional Petition No. E004 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5792/eng@2026-09-24

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