Republic v Land Adjudication and Settlement Officer & 3 others; Abuya (Ex parte Applicant); Ogal & 2 others (Interested Parties) (Judicial Review E014 of 2024) [2025] KEELC 8555 (KLR)

1. That the Honourable court lacks jurisdiction to entertain the suit. 2. That the application is fatally defective for seeking to enforce an award issued more than six (6) years ago contrary to section 4(1) of the Limitation of Actions Act. 3. That the application is fatally defective for seeking to enforce a judgment/decree issued more than twelve (12) years ago contrary to Section 4(4) of the Limitation of Actions Act. 4. That the application is presented before court is a non-starter and an abuse of the court process. Response 2. There was no response to the preliminary objection and it did not require any since it was alleged to have been based on points of law. 3. The Preliminary Objection was raised on the backdrop of or the Ex Parte Applicant’s Notice of Motion dated 30th December 2024. It was the pleading which was then impugned by the said Objection. 4. In the Notice of Motion, the Ex Parte Applicant sought an order of mandamus directed at the Land Adjudication and Settlement Oficer, the County Surveyor and the Land Registrar, Homabay compelling them to fully implement the decision of the Minister in Land Appeal, case number 110 of 2000. He also sought an injunction against the Interested Parties or anyone acting through their authority from entering into or in any way dealing with the land parcel No. 4516 as awarded in Land Case No. 110 of 2000 pending the implementation of the orders issued therein. He also prayed for costs of the application. 5. The Judicial Review application was based on the grounds that the Minister made a decision Land Case number 110 of 2000 in which he directed that parcel numbers 4517, 4800, 4515 and 4802 were to remain as they were before the Objection Case Nos. 115, 119 and 191 and the portion of land sliced from land parcel No. 4516 revert to the original position during the demarcation process. Further, despite the decision of the Minister referred to above, any delay in implementing it amounted to contempt. The Respondents, if not compelled to comply and implement the decision, were intent on delaying and continuing to delay the course of justice. Lastly, the Interested Parties were interfering with the Ex Parte Applicant’s peaceful use of land parcel No. 4516. 6. The Ex Parte applicant swore an afidavit on 6th December 2024 in which he reiterated the contents of the grounds in support for the Judicial Review application save that he annexed to it a number of annextures which he marked EOA1 to EOA 6. Submissions 7. The Ex-parte Applicant filed his submissions dated 13th March, 2025 where he submits that on 9th December, 2024 leave was granted to him to commence judicial proceedings against the Respondents. He submits that there was no judicial limit set for an application of such nature thus the preliminary objection was misconceived. 8. He relied on the case of M’Rimberia Mwithiga – (Deceased) V M’mukuria M’nonji aka Kiungu Ngongi [2021] KEELC 2688 (KLR). It was his submission that upon the decision by the Minister, the district surveyor and Land registrar moved to the ground and implemented the decision awaiting issuance of the title deeds. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8555/eng@2025-11-26 2

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9. He added that due to interference by the interested parties in issuance of the title deeds, the Respondent failed to implement the earlier decision by the Minister. He submits that the cause of action arose in 2022 thus the application was filed in time. 10. It was his submission that the 4th Respondent could not raise an objection when the fault was not on implementation but regularization of their records on an already implemented decision. He urged the court to dismiss the preliminary objection and allow him to proceed with his judicial review proceeding. 11. Counsel for the 4th Respondent filed his submissions dated 7th March, 2025 where he identified one issue for determination, that is whether the preliminary objection is meritorious. 12. He relied on the cases of Mukisa Biscuit Manufacturing Co. Ltd. V West End Distributors Ltd. [1969] EA 696 and Oraro v Mbaja [2005] 1 KLR 141. He submits that the grounds raised met the test of what amounts to a preliminary objection. 13. It was his submission that the ex-parte applicant sought for an order of mandamus directing the Respondent to implement a decision delivered in 2000 close to over 25 years ago. 14. He relied on Section 4(1) (c) and 4(4) of the Limitation of Actions Act and submits that one cannot bring an action for judgment after the end of 12 years from the date it was delivered. He submits that the suit was time barred and thus the court lacked the jurisdiction to entertain the same. He cited the case of Owners of the Motor Oil (Kenya) Ltd [1989] KLR 1. 15. The 1st, 2nd, 3rd and 4th Interested Parties filed submissions dated 17th March 2025 in which they associated themselves with the Preliminary Objection filed by the 4th Respondent. They argued that the Ex Parte Applicant sought to implement an award issued on 24th October 2000 as contained in the letter dated 22nd of February 200 which was annexture EOA 3. The award was evidenced by a copy of proceedings marked as annexture EOA2. They reproduced the provisions of Section 4(1)(c) of the Limitation of Actions Act. They then argued that the award as given was time barred and could not be implemented. It was their submission that the Ex Parte Applicant had ofiered no explanation as to why he never sought the enforcement of the said award within the Limitation of Actions period, hence the Court’s hands were tied. 16. He submitted that despite the Applicant admitted on record that he was aware of the existence of Homabay MCELC No. E047/2023 pending before the lower court. It was the Defendant and the Interested Parties who were the Plaintifis in that matter. He added that the Ex Parte Applicant moved the court, well aware in a similar case, was pending finalization before a court of competent jurisdiction. He urged that the instant matter was filed contrary to Section 6 of the Civil Procedure Act, which barred a court from hearing and determining a matter which was pending before another one of competent jurisdiction. 17. Regarding jurisdiction, the Interested Parties submitted that this court lacked jurisdiction in view of the provisions of Section 4(1) (c) of the Limitation of Actions Act and Section 6 of the Civil Procedure Act. They urged the application to be struck out with costs. 18. The 5th Interested Party associated himself with the Preliminary Objection and the Respondents submissions dated 7th March 2025. He argued that the Objection met the parameters of set out in the Mukisa Biscuits Manufacturing Company Ltd v West End Distributors Limited [1969] EA 696 as it consisted of a point of law and limitation. 19. He added that the Notice of Motion ofiended Section 4(1)(c) of the Limitation of Actions Act because the award sought to be enforced was given on the 31st October 2000, which was more than six (6) years https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8555/eng@2025-11-26 3

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from the time it was given. He stated that the order of mandamus should have been filed by the Ex Parte Applicant by 30th October 2006. He urged that the Ex Parte Applicant had not demonstrated that he ever served the Registrar with the Notice as required under Order 53 Rule 1(3) of the Civil Procedure Rules. He added that the leave granted by the Court was for filing an application as required under Section 53 Rule 1 but not leave to file an application out of time. He urged the court to uphold the preliminary objection. Analysis and Determination 20. This Court has considered the preliminary objection and the sole issue for determination is whether the Objection is merited. 21. The nature and basis of a preliminary objection was well laid down in the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd. V West End Distributors Ltd. [1969] EA 696, where the court held that: “ … a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.” 22. In the judgment of Sir Charles Newbold in the same case stated as follows: “ A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion (emphasis added)” 23. This court has considered the grounds in the preliminary objection and it is a fact that the same raise points of law. Notably, Grounds 2 to 4 are a repetition of the other hence this court will deal with them as one. 24. Section 4(1) of the Limitation of Actions Act provides as follows; “ The following actions may not be brought after the end of six years from the date on which the cause of action accrued- 25. a. actions founded on contract; b. actions to enforce a recognizance; c. actions to enforce an award; d. actions to recover a sum recoverable by virtue of a written law, other than a penalty or forfeiture or sum by way of penalty or forfeiture; e. actions, including actions claiming equitable relief, for which no other period of limitation is provided by this Act or by any other written law.” On 17th March, 1997 the Minister through the objection Committee allowed objection case Nos. 115, 119 and 191 against the Ex parte Applicant’s father Matthew Aluongo (deceased) during adjudication of Land parcel 4516 the suit land. Being dissatisfied with the appeal, the deceased appealed to the District Commissioner vide Homabay Case No. 110 of 2000. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8555/eng@2025-11-26 4

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26. The District Commissioner on 31st October, 2000 in its award ordered the suit parcel remain as they were before the objection case was filed. This is evidenced by his decision together with the letter by the Director Land adjudication and settlement dated 2nd February, 2001. 27. It is not in dispute that the Ex parte’s application dated 6th December, 2024 seeks leave for an order of mandamus to implement the decision in Land Appeal Case No. 110 of 2000. 28. In line with the provisions of Section 4(1)(c) of the Limitation of Actions Act, it is trite law that enforcement of an award cannot be brought after the lapse of 6 years from the time the award was issued. 29. It is not in dispute that the award was given by the District Commissioner on 31st October, 2000 and the application remained as filed 24 years which is way past the required limitation period of 6 years. 30. It is this court’s view that the Ex parte Applicant is statute barred from seeking to enforce an award that was issued in the year 2000. 31. The upshot of the foregoing is that the Respondents’ preliminary objection dated 31st January, 2025 is merited. 32. Costs to be borne by the Ex parte Applicant. 33. It is so ordered. RULING DATED, SIGNED AND DELIVERED VIA THE TEAMS PLATFORM THIS 26TH DAY OF NOVEMBER 2025. HON. DR. IUR NYAGAKA, JUDGE From 14:16 hours in the presence of, Charles Juma Sudhe in open court Anastasia Obunga Amwai (in open court) Elijah Goga Abuya (in open court) Samuel Ojwang Agola (in open court). https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8555/eng@2025-11-26 5

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