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

LAND REGISTRAR, MOMBASA .......................... 4TH RESPONDENT DIRECTOR OF LAND ADJUDICATION & SETTLEMENT …………………………………………..…. 5TH RESPONDENT DIRECTOR OF SURVEY KENYA .......................... 6TH RESPONDENT AND NATIONAL LAND COMMISSION .................... INTERESTED PARTY RULING A. BACKGROUND 1. Land, it has been said, is the surest measure of a people's memory, for it retains, long after the deeds are signed and the stamps affixed, the imprint of every promise kept and every promise broken. The Bububu Squatter Settlement Scheme, sprawled along the Mtongwe shoreline of Mombasa County, is one such parcel of memory. It is the home the Petitioners say their forefathers cleared, tilled, and were born upon, and it is the home they now fear the law itself has conspired to take from them. RULING: ELCLPET/E004/2025 Page 2 of 20

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2. By a Petition dated 17th March 2025, supported by the affidavit of assan Mwachamago Ali of even date, praying for twelve orders ( a to l) the Petitioners, two hundred and eleven strong and suing on their own behalf and on behalf of the wider Bububu Settlement Scheme residents, moved this court alleging that the Government of Kenya, acting through the 2nd, 3rd, 4th and 5th Respondents, has been adjudicating and settling residents of the Scheme since 1999, and that the processes of survey, demarcation, subdivision and issuance throughout, been marred of allotment with fraud, letters have, malpractice, irregularity and illegality. They invoke Articles 3, 10, 19, 20, 21, 22, 23, 25, 27, 28, 29, 47, 48, 50, 73, 75, 165, 238, 258 and 259 of the Constitution, contending that their rights to fair administrative action, property, dignity and non-discrimination have been violated, and pray, among other things, for declarations to that effect, an order quashing the survey and allocation with a direction that the exercise commence de novo, and an award of general damages. RULING: ELCLPET/E004/2025 Page 3 of 20

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3. The Petitioners trace their grievance to the year 1999, when adjudication of the Scheme commenced, and to a subsequent extension exercise; they point to a resolution of the National Land Commission following a stakeholders' meeting held on 24th January 2017, at which the Commission is said to have recommended that the Scheme be nullified and fresh allocations made, a recommendation which, they say, has never been implemented. It is against this backdrop of an old grievance and an unimplemented recommendation that the Petition was filed. 4. Before the Petition could be heard on its merits, the 2 nd, 3rd, 4th, 5th and 6th Respondents, through the Honourable Attorney General, raised a Notice of Preliminary Objection dated 23rd July 2025, contending on a single, narrow ground that the Petition offends the doctrine of constitutional avoidance and ought, for that reason alone, to be struck out with costs. The Petitioners, acting in person, met that objection with a Replying Affidavit sworn by their Chairman, Hassan Mwachamago Ali, on 2nd March 2026, deposing that they have, over some twentyfive years, exhausted every avenue available to them RULING: ELCLPET/E004/2025 Page 4 of 20

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without success, and urging that the objection does not raise a pure point of law but instead calls for factual investigation, such that it would only be prudent to let the Petition proceed to full hearing. It is this objection, and this objection only, that falls for determination in this Ruling. B. SUMMARY OF THE PARTIES' RESPECTIVE CASES The 2nd, 3rd, 4th, 5th and 6th Respondents' Case 5. The Respondents' objection rests on a single point of law: that the Petition offends the doctrine of constitutional avoidance and should accordingly be struck out with costs. In their written submissions, dated 1st April, 2026, they contend that discrimination the in grievances survey and pleaded, namely, demarcation, wrongful allocation of plots, and the resulting loss of land, are matters properly triable under ordinary statute; specifically, the Land Act, the Land Registration Act, and by way of judicial review of the decisions of the Bububu Settlement Scheme Committee. They submit, relying on Uhuru Muigai Kenyatta v Nairobi Star Publication RULING: ELCLPET/E004/2025 Page 5 of 20

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Limited [2013] eKLR, John Harun Mwau v Peter Gastrow & 3 Others [2014] eKLR, James Kanyiita Nderitu v Attorney General & Another [2019] eKLR, and Patrick Mbau Karanja v Kenyatta University [2012] eKLR, that where a remedy exists in ordinary civil or statutory law, a litigant must pursue that remedy first, and that the Constitution should not be invoked where other remedies lie. They add that the prayer for damages for pain, suffering and distress ought to have been pursued by way of a plaint, not a constitutional petition. The Petitioners' Case 6. The Petitioners, appearing through their Chairman in person, filed written submissions dated 27th May 2026 resisting the objection. They contend that the Constitution of 2010 is the supreme law of the land, and that Article 27(6) and Article 67(2)(e) obligate the State to redress historical land injustices; they invoke Section 15 of the National Land Commission Act, as amended by Section 38 of the Land Laws (Amendment) Act, 2016, and point to the National Land Commission's own recommendation of January 2017 that the Scheme be nullified as a historical RULING: ELCLPET/E004/2025 Page 6 of 20

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injustice, a recommendation never implemented by any of the Respondents. In their Replying Affidavit and submissions, they maintain that they have exhausted every alternative avenue open to them over some twenty-five years, including Commission, complaints and that to the National Land the doctrine of constitutional avoidance cannot be deployed to shut out a litigant where no other forum has proved adequate, effective or forthcoming, relying on Milestone Developers Limited & 5 Others v County Government of Garissa & 3 Others and Geoffrey Muthinja Kabiru & 72 Others v Samuel Henry Kinyanjui & 1756 Others [2015] eKLR. They pray that the Petition be permitted to proceed to full hearing. C. DIRECTIONS GIVEN 7. When the suit came up for directions on the objection, the court directed that the same be canvassed by way of written submissions, and the parties were granted timelines within which to file and exchange the same. The 2nd, 3rd, 4th, RULING: ELCLPET/E004/2025 5th and 6th Respondents filed their Page 7 of 20

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submissions in support of the objection dated 1st April 2026, while the Petitioners filed their submissions in response dated 27th May 2026. The parties were thus afforded a full opportunity to file and serve their respective submissions within the stipulated period, and did so within the timelines eventually granted; the Court accordingly determines this objection on the basis of the pleadings, affidavits, submissions and other material properly on the record. D. ISSUES FOR DETERMINATION 8. Having considered the Notice of Preliminary Objection and the rival submissions, the court is of the view that the following issues fall for determination: a. Whether the Notice of Preliminary Objection dated 23rd July 2025 meets the threshold of a proper preliminary objection; b. Whether the Petition offends the doctrine of constitutional avoidance; RULING: ELCLPET/E004/2025 Page 8 of 20

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c. Whether the existence of an alternative remedy, if any, is adequate and effective in the circumstances of this case; and d. What orders ought to follow. E. ANALYSIS AND DETERMINATION 9. A court that shuts its doors too readily on a litigant does a disservice not only to that litigant but to the very idea of justice it is sworn to serve; yet a court that opens its doors to every grievance dressed in constitutional language, however ill-fitting the garment, does a different disservice, for it dilutes the Constitution's force by making of it a garment for every occasion. Between these two errors, a court must tread carefully, and it is with that caution that I approach the objection before me. Issue 1: Whether the objection meets the threshold of a preliminary objection. 10. The classical test remains that stated by Sir Charles Newbold, P., and Law, J.A. (as they then were), in Mukisa RULING: ELCLPET/E004/2025 Page 9 of 20

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Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, that “a preliminary objection consists of a point of law, pleaded or arising by clear implication from the pleadings, which if argued may dispose of the suit, and cannot be raised where any fact remains to be ascertained.” The objection here, that the Petition offends the doctrine of constitutional avoidance, is a pure point of law: it does not require the court to resolve any contested fact, but only to examine the pleadings as they stand and ask whether the remedies sought could properly be pursued elsewhere. It therefore meets the threshold and is properly before me for determination. Issue 2: Whether the Petition offends the doctrine of constitutional avoidance. 11. The doctrine finds its most authoritative articulation in our jurisdiction in the decision of the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media RULING: ELCLPET/E004/2025 Services Ltd & 5 others Page 10 of 20

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[2014] KESC 53 (KLR), where the Court, at paragraph 256, held: "The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis... It is a sound judicial practice for courts to decide cases on non-constitutional grounds if that course is proceeding must follow the available." 12. The classification of a gravamen of the pleaded cause, not its caption, the number of constitutional provisions cited, or the form of relief sought. constitutional The central references inquiry were is removed, this: if the would the controversy remain complete as an ordinary claim to ownership, cancellation, rectification, trespass or damages? If so, a plaint will ordinarily be the proper vehicle. If, however, the Court must determine whether governmental conduct in designing, administering or refusing to implement a settlement process violated constitutional standards of equality, fair administrative RULING: ELCLPET/E004/2025 Page 11 of 20

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action, dignity, participation or accountable governance, the constitutional jurisdiction is substantively engaged. 13. The doctrine of constitutional avoidance does not ask merely whether an ordinary cause of action can be discerned somewhere within the facts. In most constitutional disputes, statute and common law are also present. The controversy proper can be question completely is whether and the effectively resolved without deciding the pleaded constitutional wrong. Equally, a litigant cannot transform a contest over title, fraud or allocation into constitutional litigation merely by adding Articles 27, 40 and 47 to the heading. Substance, not nomenclature, governs. 14. This is not, however, an absolute rule requiring that every constitutional claim be relegated to the back of the queue behind statute. The doctrine is a rule of prudence, not a jurisdictional bar; it counsels restraint, but restraint is not abdication. Where the remedy under ordinary law is genuinely available, adequate and effective, a litigant should be directed to it. Where it is not, or where the very body charged with providing that remedy has, for years, RULING: ELCLPET/E004/2025 Page 12 of 20

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done nothing, the doctrine cannot be permitted to become a wall behind which inaction hides. 15. The Court of Appeal, in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR), held that where a clear procedure is prescribed by law for redress of a grievance, that procedure ought ordinarily to be followed before resort is made to constitutional remedies. This principle was recently applied by this court's sister ELC bench in Owino v Piccadily Holdings Limited & 3 others; Kenya Railways Corporation & another (Interested Parties) [2026] KEELC 551 (KLR), where the doctrine of constitutional avoidance was invoked to decline jurisdiction over a petition that could properly have been pursued as an ordinary civil claim, the court there also citing Murage v Fineserve Africa Limited & 3 others [2015] KEHC 7330 (KLR) for the proposition that not every violation of the law need be raised as a constitutional issue where a statutory remedy exists. Similarly, in Bodo & Another v Royal Media Services Limited [2025] KEHC 17951, the High Court observed that the doctrine does not strip a court of jurisdiction, but RULING: ELCLPET/E004/2025 Page 13 of 20

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rather counsels the court to restrain itself where another appropriate forum exists and can hear and determine the matter effectively. 16. Taken at their highest, the pleadings challenge not only the outcome of individual allocations but also the legality, equality and procedural fairness of a State-administered settlement process and the alleged prolonged failure of public bodies to act upon an intervention by the National Land Commission. That constitutional dimension is sufficient, at this preliminary stage, to defeat a prayer for summary termination of the entire proceeding. It does not, however, relieve the Petitioners of the obligation to particularise fraud, identify the affected parcels and beneficiaries, join persons whose proprietary interests may be disturbed, or prove disputed facts by admissible evidence. Issue 3: Whether an alternative remedy, if any, is adequate and effective. RULING: ELCLPET/E004/2025 Page 14 of 20

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17. Here lies the true difficulty for the Respondents' objection. This is not a case where an aggrieved party has, out of impatience or convenience, bypassed a functioning statutory mechanism to come running to the Constitution. The Petitioners plead, and it is not seriously disputed on this record, that the National Land Commission itself, the very body vested by Article 67(2)(e) of the Constitution and Section 15 of the National Land Commission Act (as amended by Section 38 of the Land Laws (Amendment) Act, 2016) with the mandate to investigate historical land injustices, held a stakeholders' meeting on 24th January 2017 concerning this very Scheme, and recommended nullification of the Scheme and fresh allocation. Nearly a decade has passed. Nothing has been done. 18. At this stage, the Court should not pronounce finally upon the legal character, scope or binding effect of that alleged intervention without examining the primary record and hearing the parties. It is enough that the pleaded institutional action and subsequent inaction form part of the constitutional controversy and cannot safely be treated as a bare contest over private title. RULING: ELCLPET/E004/2025 Page 15 of 20

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19. The Court will therefore preserve the proceeding but place it upon a procedure equal to its complexity. The Constitution is not diminished when facts are tested; it is strengthened. Where public-law questions are intertwined with disputed occupation, survey, allocation, discrimination and title, the Court may receive oral evidence and permit cross-examination. That course best secures both effective constitutional adjudication and the fair-hearing rights of every person whose interest may be affected. 20. It is against this factual backdrop that the Petitioners' reliance on Milestone Developers Limited & 5 Others v County Government of Garissa & 3 Others and Geoffrey Muthinja Kabiru & 72 Others v Samuel Henry Kinyanjui & 1756 Others [2015] eKLR gains force: “the doctrine of constitutional avoidance does not apply, and cannot be permitted to apply, where the alternative remedy is illusory, ineffective, or where the relevant institution has, through prolonged inaction, rendered that remedy no remedy at all.” A remedy that exists only on paper, unexercised RULING: ELCLPET/E004/2025 Page 16 of 20

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for nine years despite a clear recommendation by the very Commission constitutionally mandated to act, is not an adequate alternative remedy in any meaningful sense; it is a door marked open that has, in practice, remained locked. 21. I am mindful, too, that the doctrine of constitutional avoidance must yield where the state organs themselves are alleged to be the source of the very inaction complained of. To tell a petitioner who has waited years for the National Land Commission to act on its own recommendation that he must now go and file a fresh claim before that same Commission, or seek judicial review of a Committee's decision made under a scheme the Commission itself has recommended be nullified, would be to send him in a circle with no exit. The Constitution does not countenance such futility. I find, therefore, that on the pleadings as they stand, the Petitioners have raised a triable question as to whether the alternative remedies pointed to by the Respondents are, in the circumstances of this particular case, adequate and effective, and that question is itself one that the doctrine of constitutional avoidance, properly understood, requires be RULING: ELCLPET/E004/2025 Page 17 of 20

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tested at a full hearing rather than foreclosed at a preliminary stage. 17. This is not a finding that the Petition will succeed, nor an endorsement of the truth of any factual averment it contains; those are matters for trial. It is simply a finding that the Respondents' objection, resting as it does on the bare proposition that alternative remedies exist, does not, without more, dispose of the Petition, given the specific and largely uncontroverted history of institutional inaction pleaded on this record. The precise constitutional questions, the adequacy of any alternative remedy, the status and effect of the National Land Commission material, and the appropriate relief, if any, must await a properly undertaken hearing. The objection accordingly fails. F. CONCLUSION AND DISPOSAL ORDER 18. The resulting position is a measured one. The Petition discloses an arguable constitutional and public-law dimension and should not be struck out merely because land legislation and ordinary civil remedies also bear upon RULING: ELCLPET/E004/2025 Page 18 of 20

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the dispute. Yet its survival does not convert every allegation of allocation, fraud or title into a constitutional question. The Petitioners must, at the appropriate casemanagement stage, identify the specific administrative acts or omissions challenged, connect each alleged violation to the responsible Respondent, particularise any fraud relied upon, disclose the parcels and persons likely to be affected, and ensure that all necessary parties are heard. 20. For the reasons set out above, the Notice of Preliminary Objection dated 23rd July 2025 fails and is hereby dismissed. As a consequence, the court makes the following orders for disposal thereof: a. The Notice of Preliminary Objection dated 23rd July 2025 be and is hereby dismissed. b. Any party wishing to file supplementary documents shall do so within 14 days from the date of this Ruling. c. Parties to file their trial bundles within 7 days of b above. RULING: ELCLPET/E004/2025 Page 19 of 20

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d. Mention on 23rd November 2026 to confirm compliance and fix a Hearing date f. Costs of the Notice of Preliminary Objection shall be in the cause. Orders accordingly. Dated, signed and delivered virtually via Microsoft Teams at Mombasa this 24th day of September 2026. .......................... B.A. AKELLO, OGW JUDGE In the presence of: Gillian – Court Assistant Hassan Mwachamago Ali – Chairman, for the Petitioners in person for the 1st Respondent Mr. Waga H/b for Mr. Penda – Senior Litigation Counsel, for the 2nd, 3rd, 4th, 5th and 6th Respondents N/A RULING: ELCLPET/E004/2025 -for the Interested Party Page 20 of 20

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