Maiko Oloiputa Miaroi, Julius Ole Mokita & Lenkai Ole Metetai (Suing in the capacity of the Registered Representatives of over 600 families that are members of the Oloirien Group Ranch) v Director, Land Adjudication & Settlement & 12 Others

OLKURUKLODGE LIMITED T/A ANGAMA MARA LODGE………………………………………………………..12th DEFENDANT/RESPONDENT MARA ELATIA CAMP………………………………….……13th DEFENDANT/RESPONDENT AND KENYA AIRPORTS AUTHORITY………………………………………..…..INTERESTED PARTY RULING 1. The Court vide this Ruling is called to determine two separate Notices of Preliminary Objection, the first being the one dated 16.03.2026 filed by the 9th-11 Defendants (hereinafter referred to as the 1 st P.O) and the Second one being the one dated 27th of April 2026 filed by the 12 th Defendant (herein after referred to as the 2nd P.O) 2. The 1st P.O raises the following grounds; a) That the Plaintiff’s Application and suit are statutorily barred in light of Sections 27 to 30 of the Land Adjudication Act, Section 7, 9 (1) and 26 of the Limitations of Actions Act and Section 15 of the National Land Commission Act (Repealed). I. In so far as the Plaintiff’s suit and Application raises objections and issues impugning the process of adjudication with respect to Oloirien Adjudication Section, such objections and issues are time barred and/or afterthoughts incapable of determination by this court in view of Sections 27,28,29 and 30 of the Land Adjudication Act, Cap 284 of the Laws of Kenya. II. In so far as the Plaintiff impugns the legality of the 9th Respondent’s Title over all that parcel of land known as L.R No. Transmara/Oloirien A/1 approximately measuring 288.83 HA (the suit property), the suit and Application filed by the Plaintiff offend the provisions of Sections 7,9 (1) and (26) of the Limitation of Actions Act, Cap 22 of the Laws of Kenya: P a g e 2 | 21

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a. The Plaintiff has readily admitted in Paragraphs 43-50 of its Plaint that it has all along been aware that the suit property was initially allocated to the 7th Defendant on 11.01.1988. Subsequently, the 7th Defendant transferred the property to the 8th Defendant on 17.12.1998. That the 8th Defendant received a Title Deed for the property in its name on 22.01.1999. Following this, on 12.02.1999, the 8th Defendant transferred the suit property to the 9th Defendant. b. Further, the Plaintiff has also admitted at Paragraph 54 of the Plaint that the said suit property was subdivided into four (4) portions, two (2) of which have now been purchased and transferred to the 12th and 13th Defendants herein. The status of the said parcels as obtaining since the said subdivision have been listed at the said paragraph 54 as follows: (i) Transmara/Oloirien/A2 measuring 43.71HA - Title Issued to 9th Defendant, Manati Limited (ii) Transmara/Oloirien/A4 measuring 216.71HA - Title Issued to 9th Defendant, Manati Limited (iii) Transmara/Oloirien/A5 measuring 41.28HA - Title issued to 12th Defendant, Olkurruk Lodge Limited (iv) Transmara/Oloirien/A3 whose Title is suspected to have been issued to the 13th Defendant, Mara Elatia Camp. c. The above being the case, by dint of Sections 7,9 (1) and 26 of the Limitation of Actions Act, for this court to be properly seized of jurisdiction to adjudicate and determine the Plaintiff’s allegations impugning the respective titles by the 7th-13th Defendants herein either on the basis that the same were acquired fraudulently, improperly or illegally, the Plaintiff P a g e 3 | 21

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ought to have filed suit latest by 13.02.2011. It did not! Instead, this suit has been brought twenty-seven (27) years after the Plaintiff’s supposed cause of action arose. d. That in so far as the Plaintiff attempts to advance a claim for historical land injustice, such a claim is incompatible to the provisions of Section 15 of the National Land Commission Act, No. 5 of 2012 of the Laws of Kenya. It is important to emphasize that the said Section 15 of the National Lands Commission Act stood repealed automatically by operation of the law from the midnight of 02.05.2022. Nevertheless: (i) It was a condition pursuant to Section 15 (3) (e) of the National Land Commission Act that any historical land claim could only be admitted, registered and processed by the 6th Defendant if it was brought by 02.05.2017. (ii) At pages 208-212 and 220-222 of the bundles of Pleadings that make up its Application, the Plaintiff has produced documents evidencing that they submitted a claim for Historical Injustice to the 6th Defendant sometimes in 2018. It is evidently clear from the said documents that upon filing with the 4th Respondent, the Plaintiff’s Historical Injustice Claim was referenced NLC/HLI/311/2018. This was beyond the statutory deadline for which such a claim had to be filed, by 02.05.2017, in order for its processing by the 6th Defendant. e. That the entire suit and Application is premature in so far as it is aimed at curtailing a lawful and procedural process of compulsory acquisition of a portion of the suit property by the P a g e 4 | 21

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Interested Party as provided under Part VIII of the Land Act, No. 6 of 2012. Such objections to the process of compulsory acquisition ought to be referred to the 6th Defendant, at first instance, and thereafter to the Land Acquisition Tribunal on Appeal. f. That in any event, the injunctive orders sought in the Plaintiff’s Application, which aims to halt the process initiated by the 6th Defendant to compulsorily acquire a portion of the suit property, cannot be issued for two reasons: (i) The issuance of such injunctive orders will offend the provisions of Section 16 of the Government Proceedings Act as read with Order 29 Rule 2 (2) (d) of the Civil Procedure Rules. (ii) The Plaintiff’s admissions, as set out in the Plaint, clearly establish that the 9th, 12th and 13th Defendants are the registered owners of various portions of the suit property, and who have been in possession of the same for over twenty-seven (27) years. As the rightful owners and current possessors of their respective properties, the 9th, 12th and 13th Defendants have the undeniable right to use and manage their land as they see fit as guaranteed by Article 40 of the Constitution and Section 26 of the Land Registration Act. No court, including this one, has the authority to protect an outsider, the Plaintiff, with no title and no possession by issuing injunctive orders that would prevent the rightful owners from accessing and/or utilizing their own properties. P a g e 5 | 21

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g. That this entire suit is otherwise an abuse of this Honourable Court’s process. 3. The 2nd P.O is based on the following grounds; a) That the Plaintiff, being a group ranch registered under the repealed Land (Group Representatives) Act (Cap 287, Laws of Kenya, lacks the legal capacity and locus standi to institute this suit, having failed to transition into a community as mandatorily required under the Community Land Act, No 27 of 2016 and the Community Land Regulations, 2017. b) That Section 47 (1) and (2) of the Community Land Act mandated all group representatives under the repealed statute to transition and be registered as a community, upon which transition the offices of the group representatives would cease to exist. The Plaintiff has not registered as a community as required under this Section. c) That Regulation 26 (3) of the Community Land Regulations, 2017 imposes a mandatory obligation upon all such group ranches to apply for registration as a community within twelve (12) months of the commencement of the Regulations. The Plaintiff has not complied with this Regulation and continues to exist as the registered representatives of a group ranch. d) That the Plaintiff, having failed to comply with the mandatory statutory requirement of conversion to a community, is therefore not a legally recognized entity capable of suing or being sued under the prevailing legal framework. e) That the officials purporting to institute this suit on behalf of the Plaintiff, namely Moiko Oloiputa Miaroi, Julius Ole Morita, and Lenkai Ole Metetai, lack the requisite legal authority to do so, their offices having ceased or being incapable of subsisting in law upon the coming into force of the Community Land Act and the Regulations made thereunder. P a g e 6 | 21

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f) That the suit is consequently incompetent, misconceived, and incurably defective for want of legal capacity on the part of the Plaintiff, and is therefore liable to be struck out in limine. 4. Both P.Os were canvassed vide written Submissions Applicants Submissions. 5. The 9th to 11th Defendants’ being “the Applicants” herein in so far as being the ones who raised the 1st P.O filed their submissions, framing and submitting on 5 issues for determination as follows; (i) On issue No. 1, whether the Preliminary Objections raised are proper in law, the Defendants relied on Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors [1969] EA 696, Martha Akinyi Migwambo v Susan Ongopro Ogenda [2022] eKLR, Joho & Another v Shahbal & 2 Others [2014] KESC 34 (KLR), and Dismas Wambola v Cabinet Secretary, Treasury & 5 Others [2017]eKLR; stating that all the grounds satisfy all four limbs of the Mukisa test. The Defendants submit that the Statutory time bar under the Land Adjudication Act, the Limitation of Actions Act and the NLC Act are pure points of law requiring no factual investigation. The doctrine of exhaustion is equally a pure point of law going to the jurisdiction of this court at the threshold citing Mary Wambui Munene v Peter Gichuki Kingara and 6 Others, Petition No. 7 of 2013 [2014] eKLR, Bosire Ogero v Royal Media Services [2015] eKLR, Musa Mbwagwa Mwanasi & 9 Others v Chief of the Kenyan Defence Forces & Another [2021] eKLR, County Government of Migori v INB Management IT Consultant Limited [2019] eKLR, Sikaelah (Chairman) suing on behalf of Karen Langata District Association v Attorney General & 3 Others [2022] KEELC 15120 (KLR) and P a g e 7 | 21

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Odhiambo & Another v National Police Service & 3 Others (Petition E006 of 2023) [2023] KEHC 719 (KLR). (ii) The Applicants submit that the question of whether a court can grant injunctive orders that would violate a statutory prohibition is a pure question of law properly raised in a Preliminary Objection as per Section 16 of the Government Proceedings Act. (iii) On issue No. 2, whether the Plaintiff’s Plaint and Application are Statutorily barred, the Defendants submit that Sections 26, 29 and 30 of the Land Adjudication Act, Cap 284 Laws of Kenya contains a detailed, exhaustive and constitutionally endorsed dispute resolution mechanism supported by Courts decisions in Lepore Ole Maito v Letwat Kortom & 2 Others [2016]eKLR, Ogaga (Suing as the Legal Representative of the Estate of Turufena Kemunto Ogaga (Deceased) v Ogaga and 3 Others (Civil Appeal 45 of 2018) [2022] KECA 1422 (KLR) (16.12.2022), Mohamed Ahmed Khalid (Chairman) & 10 Others [2022] KEELC 13671 (KLR), Joseph S. Tootio & 12 Others v District Land Adjudication Section and Settlement Officer Narok South & 24 Others [2021]eKLR, Article 159 (2) (c) of the Constitution of Kenya, and Speaker of the National Assembly v Karume [2008] 1 KLR 426. (iv) On the same issue the Applicants submit that the equitable doctrine of laches bars the Plaintiff’s claim citing Kungu Kamau v Kamau Kiongo & Another [2015] KEELC 712 (KLR), and without prejudice to the foregoing, the Plaintiff is estopped by its own conduct relying on the case of Mombasa Hardware Ltd v Ali Hassan Joho [2011] eKLR. (v) The Defendants submit that with respect to the Plaintiff’s challenge to the legality of the 9th Defendant’s title and the resultant titles of the 12th and 13th Defendants, the same is similarly and fatally barred by Sections 7, 9 (1) and 26 of the Limitation of Actions Act, Cap 22 Laws of Kenya, Mbuthia v Illanga Transporters Ltd [1982-1988] 1 KAR 105, Obiero v Opiyo P a g e 8 | 21

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[1972] EA 227, and Mwatela & Another v Kalama & 3 Others (Civil Suit E170 of 2015) [2025] KEELC 1254 (KLR) (06.03.2025). (vi) The Applicants submit that the Plaintiff’s claim for historical land injustice is prematurely before the court and statutorily time-barred citing Section 15(3) of the NLC Act and the decision in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] KESC 8 (KLR). (vii) On issue No. 3, whether the Plaintiff has violated the Exhaustion Doctrine, the Defendants submit that the doctrine of exhaustion is a threshold jurisdictional requirement and not a discretionary procedural step that this court may waive at its convenience quoting Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] KECA 304 (KLR), Part VIII of the Land Act, No. 6 of 2012, Section 133A of the Land Act, Section 133C and 133D of the Land Act, Giciri Thuo & 5 Others v National Land Commission & 4 Others, Kenya Human Rights Commission (Interested Party) Dorcas Wairimu Kamau & 154 Others (Intended Interested Parties) [2022] KEELC 1162 (KLR), Muambi Properties Limited v Kenya Urban Roads Authority & 2 Others[2024] KEELC 4307 (KLR), and Kigathi v Kenya National Highways Authority & Another; National Land Commission (Interested Party) [2025] KEELC993 (KLR). (viii) On issue No. 4, whether this Honourable Court can grant the Injunctive Orders sought, the Defendants submit that Section 16 of the Government Proceedings Act read with Order 29 Rule 2 (2) (d) of the Civil Procedure Rules categorically prohibits the grant of injunctive orders against the Government and confirmed in Republic v Kenya Revenue Authority exparte Athi River Mining Ltd [2018] eKLR. (ix) The Defendants submit that the test for the grant of an interlocutory injunction was settled in Giella v Cassman Brown & Co. Ltd [1973] EA 358 and there is no prima facie case capable of supporting any injunctive P a g e 9 | 21

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relief. The Defendants also relied on the decision in Giitwany Investment Ltd v Tajmal Ltd & 3 Others [2006] KEHC 2519 (KLR) and Article 40 of the Constitution of Kenya. (x) On issue No. 5, what orders should issue as to costs, the Applicants submit that the award of costs is discretionary and governed by well-established principle that costs follow the event and therefore the Defendants are entitled to their costs of and incidental to this Preliminary Objection and upon striking out the suit and Application, their costs of the entire proceedings. 1st, 2nd 3rd 4th and 5th Defendants submissions in support of the P/O 6. The 1st, 2nd 3rd 4th and 5th Defendants represented by the Attorney General’s Office filed submissions in support of the 1 st Preliminary Objection framing and submitting on four issues or as follows; i. whether the Preliminary Objection dated 16.03.2026 meets the criterion of a proper Preliminary Objection. ii. whether the suit and the application contravene or are barred by Sections 27-30 of the Land Adjudication Act together with Section 77, 9(1), and 26 of the Limitation of Actions Act. iii. Whether the Plaintiff’s inclusion of historical land injustices claim contravenes section 15 of the National Land Commission Act (Repealed), and iv) That the Injunctive orders sought offend the provisions of Section 16 of the Government Proceedings Act, as read with Order 29 Rule 2(2) of the Civil Procedure Rules. iv. The 1st-5th Defendants submit that the principles set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 and with the approval of the Supreme Court in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others [2014] eKLR are well settled and further P a g e 10 | 21

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supported by the decision in Dismas Wambola v Cabinet Secretary, Treasury and 5 Others (2017) eKLR. v. The 1st-5th Defendants submit that the Plaintiff’s claim on the process of adjudication offends Section 26, 29 and 30 of the Land Adjudication Act Cap 284 where an Objector to an adjudication process must object in writing to the Adjudication Officer within 60 days of determination and once a person has appealed to the Cabinet Secretary’s decision, they may challenge it by way of a Judicial Review and not by any other way relying on the case of Mohamed Ahmed Khalid & 10 Others v the Director of Land Adjudication & 2 Others [2013] eKLR, Joseph S.L Tooti & 12 Others v the District Land Adjudication and Settlement Officer Narok & 24 Others [2021]eKLR. vi. The 1st-5th Defendants submit that the doctrine of exhaustion can be raised as a Preliminary Objection to challenge the Jurisdiction of a court when statutory dispute resolution mechanisms have not been utilized therefore considered a pure point of law concerning jurisdiction citing Bethwel Allan Omondi Okal v Telkom (K) Ltd (Founder) & 9 Others [2017]eKLR, Council of County Governors v Attorney General & 12 Others [2018]eKLR, Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015]eKLR, Article 159 of the Constitution, William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) (2020)eKLR, Wangari v Kenya Revenue Authority & Another (Constitutional Petition 8 of 2020) [2022] KEHC 411 (KLR) and in Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 (2020)eKLR. vii. The 1st-5th Defendants submit that the court cannot grant injunctive reliefs as against the Government since it is prohibited under Section 16 of the Government Proceedings Act (Cap 40). P a g e 11 | 21

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viii. The 1st-5th Defendants pray and support the Preliminary Objection raised by the 9th-12th Defendants submitting that it is in line with as held in the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696. 13th Defendants submissions in support of the 1st P.O 7. The 13th Defendant in support of the 9th-11th Defendants’ P.O framed and submitted on 5 issues for determination to wit; a) Whether the preliminary objection meets the legal threshold of a proper preliminary objection. b) Whether the suit and application, insofar as they impeach the adjudication process and titles derived therefrom, are barred by Sections 2730 of the Land Adjudication Act and Sections 7, 9 (1) and 26 of the Limitation of Actions Act. c)Whether the Plaintiff’s attempt to advance a historical land injustice claim is incompetent under former Section 15 of the National Land Commission Act. c) Whether the challenge to the compulsory acquisition process is premature for want of exhaustion under Part VIII of the Land Act. d) Whether the injunctive relief sought is, in part, statutorily barred against Government and otherwise unsustainable against registered proprietors. 7.On issue No. 1, whether the P.O meets the legal threshold of a proper P.O, the 13th Defendant submits that the present objection fits squarely within the test and no viva voce evidence or factual evaluation of evidence is required to determine whether a suit founded on pleaded events of 1988, 1993, 1994 and 1999, but filed in 2026, is prima facie time-barred; nor whether the law requires a party first to proceed before the Land Adjudication machinery, the National Land Commission, or the Land Acquisition Tribunal. The 13 th Defendant relied on the threshold settled in Mukisa Biscuit Manufacturing Co. Ltd v West End P a g e 12 | 21

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Distributors Ltd [1969] EA 696 and Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others [2014]Eklr. 8. On issue No. 2, whether the suit and application is barred by the Land Adjudication Act, the 13th Defendant submits that the P.O correctly raises that, insofar as the Plaintiff’s case attacks the adjudication process in Oloirien Adjudication Section, the suit offends Sections 27, 28, 29, and 30 of the Land Adjudication Act. The 13th Defendant cited the courts’ decisions in Bhaijee & Another v Nondi & Another [2022] KECA 119 (KLR), Speaker of the National Assembly v James Njenga Karume [1992] KLR 21 and Geoffrey Muthinja Kabiru & Another v Samuel Muguna Henry & 1756 Others [2015]Eklr. 9. On issue No. 3, whether the suit is statute-barred under the Limitation of Actions Act, the 13th Defendant submits that the Plaintiff’s own pleadings are fatal to the suit on limitation and the authorities are clear that the postponement principle only assists where discovery is not already disclosed in the pleadings. The 13th Defendant relied on Sections 7, 9 (1) and 26 of the Limitation of Actions Act, Koskey v Kenya Power & Lighting Co. Limited (Miscellaneous Case E016 OF 2025) [2025] KEELRC 2361 (KLR) and Divecon Ltd v Samani [1995-1998] I EA 48. 10. On issue No. 4, whether the historical land injustice limb is incompetent, the 13th Defendant submits that the claim by the Plaintiff seeking to repackage the dispute as a historical injustice is incompetent under former Section 15 of the National Land Commission Act. 11. On issue No. 5, whether the challenge to compulsory acquisition is premature for want of exhaustion, the 13 th Defendant submits that the challenge to compulsory acquisition process is premature because disputes relating to compulsory acquisition must, in the first instance proceed under Part VIII of the Land Act before the specialized statutory organs. 12. On whether the injunctive relief sought is statutorily barred against government and otherwise untenable, the 13 th Defendant submits that P a g e 13 | 21

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Section 16 of the Government Proceedings Act and Order 29 Rule 2 (2) (d) of the Civil Procedure Rules expressly bars the grant of injunctive relief and specific performance against Government. Further, the application is still untenable because the Plaintiff’s own pleadings acknowledge that parcels arising from the alleged subdivision are registered in the names of the 9 th, 12th and 13th Defendants. 13. On the issue of whether the suit, as framed against the 13 th Defendant is an abuse of process, the 13 th Defendant submits that the Plaintiff seeks the drastic remedy of cancellation of title while openly pleading uncertainty as to whether such title was ever issued to it which is not a proper cause of action pleaded with particularity but a speculative fishing expedition. 14. On the strengths of their submissions above, the 13 th Defendant submits that the P.O is meritorious and ought to be held in its entirety. 12th Defendants Submissions In Respect Of The 2nd P.O 15. The 12th Defendant’s submissions submit that the sole issue arising for determination is whether the Preliminary objection dated 27.04.2026 is merited. 16. The 12th Defendant submits that the guiding framework is well settled in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and the instant objection falls squarely within that definition. Further, only a legal person has the capacity to sue or be sued, and the Plaintiff lacks legal personality and capacity. The 12 th Defendant relied on Section 47 (1), (2) & (3) of the Community Land Act which repealed Land (Group Representatives) Act and Section 7 (1) of the Act, Regulation 26 (3) of the Community Land Regulations, 2017, Keiyian Farmers Co-operative Society v Jomo Kenyatta University of Agriculture & Technology [2024] KEELC 632, Lekupe & 2 Others v County Land Registrar Isiolo & Marsabit & 2 Others [2026] KEELC1871 (KLR), Everton Coal Enterprises Limited v Rose Karanja & 5 Others [2023] KESC 98 P a g e 14 | 21

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(KLR), and in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR). 17. On the issue of whether the Applicant is entitled to the costs of this application, the 12th Defendant submits that costs follow events citing Section 27 of the Civil Procedure Act Cap 16, Delilah Kerubo Otiso v Ramesh Chander Ndingra [2018]Eklr and Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014]Eklr. 18. On the strengths of the above submissions, the 12 th Defendant urges this Court to uphold the P.O dated 27.04t.2026 and strike out the suit with costs. Plaintiff’s Submissions In Opposition To The 1st P.O 19. The Plaintiff opposed the 1st Preliminary Objections and submitted on one key issue, whether the preliminary objection dated 16.03.2023 raises purely points of law or facts. It is their submissions that; (iii) the test laid down for preliminary objection must meet the ingredients stated in Mukisa Biscuits Manufactures Co. Ltd v West End Distributors [1969] EA 696. The Plaintiff avers that the Preliminary Objection dated 16.093.2026 does not raise purely points of law and that there are factual issues that the Court has to consider including the rival positions taken by the various parties including the Plaintiff claiming it is the bonafide legal owner of the Samaki Parcel of land and the 9th-13th Defendants also claiming ownership of the same parcel of land arising from a second adjudication that occurred illegally. (iv) Where the P.O contends that the suit is statute barred under Sections 7 & 9 (1) of the Limitation of Actions Act, the Plaintiff submits and relies on Section 26 of Limitation of Action Act which expressly provides that when there is fraud then time stops running until the fraud is discovered and the Plaintiff discovered the fraud vide Gazette Notice dated 04.06.2021 published for compulsory acquisition. The Plaintiff also relies P a g e 15 | 21

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on Section 26 of the Land Registration Act which expressly states that the court can declare invalid any title for land which is obtained by fraud, illegality, and procedural impropriety. (v) Where the P.O contends that the suit is statute barred based on Sections 15 of the National Land Commission Act, the Plaintiff in rejoinder states that the suit is not framed on the basis of historical injustices and that the Plaintiff has framed their pleadings to be anchored on fraud and illegality and that the case relates to and seeks determination of the issue of whether after the completion and finalization of Oloirien Adjudication Section and if the Defendants had jurisdiction and acted illegally by creating another Adjudication known as Oloirien A1 Adjudication out of a completed Adjudication process relying on the case of Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [2015] KECA 816 (KLR) (30.01.2015) (Judgment). Further, the Plaintiff avers that the joinder of the 6th Defendant i.e National Land Commission, does not make this suit a matter of historical land injustice, in fact the joinder NLC is largely due to the Notice of Compulsory Acquisition of part of the suit land. (vi) Where the P.O contends that the suit is premature and should be heard at the Land Acquisition Tribunal and not the ELC Court, the Plaintiff avers that the dispute is whether the 7th to 13th Defendants have a good title and the title is challenged based on fraud and illegality arising from an impugned Land Adjudication process and not about compulsory acquisition relying on the Supreme Court decision in Dina Management Ltd v County Government of Mombasa & 5 Others (Petition 8 (E010) OF 2021)[2023]KESC 30 (KLR) (21.04.2023) (Judgment) and Article 162 (2) (b) of the Constitution of Kenya and Section 30 (4) of the Land Adjudication Act. P a g e 16 | 21

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(vii) Where the P.O contends that the court cannot grant injunctive orders as doing so will offend Section 16 of the Government Proceedings Act, the Plaintiff submits that the granting of an injunction is a matter provided for under Order 40 Rule 1,2,3 & 4 of the Civil Procedure Rules, 2010 and also the case of Giella V Cassman Brown Co. Limited [1973] EA 358. (viii) The Plaintiff prays that the court leans on the decision in the case of Mukisa Biscuits Manufacturers Co. Ltd v West End Distributors [1969] EA 696 and dismiss the Preliminary Objection with Costs to the Applicant herein and any other party opposed to the same. Issues for Determination 20. Arising from the two Notices of Preliminary objections, the rival submissions the court frames the following as issues for determination in respect of the two notices of preliminary objection subject of this Ruling. (i) Whether or not the preliminary objections meet the threshold of a preliminary objection capable of determining the matter in limine? (ii) Whether the preliminary objection are merited? (iii) What reliefs ought to issue. (iv) Who bears the costs of the P.O. Analysis and Determination 21. Both the 1st and 2nd Preliminary objections shall now be subjected to the above issues for determination. 22. On issue No. 1, which issue was raised by the rival parties herein. A preliminary objection was defined in Mukhisa Biscuits Manufactures Vs. West End Distributors 1969 E.A 696 as follows “so far, I am aware, a Preliminary Objection consists of a pure point of law which has been pleaded, or which arises by implications out of pleadings, and which if argued as a Preliminary P a g e 17 | 21

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Objection is in the nature of what used to a demurrer. It raises a pure point of law which is argued on the assumption that all acts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is sought is the exercise of judicial discretion”. 23. Similarly, in Omondi Vs. National Bank of Kenya and 2 Others as quoted in the decision of J.N and 5 Others Vs. Board of Management of St. G. School Nairobi and Another, the court held as follows in respect of a Preliminary Objection “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…where a court needs to investigate facts, a matter cannot be raised as a Preliminary point. Anything that purports to be a Preliminary Objection must not deal with disputed facts and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence…” 24. From the above excerpts, all the parties herein agree on the definition of a preliminary objection. The question that the court needs to answer is whether, as drawn do the Notices of Preliminary Objection meet the said test or not. 25. The test being that the Preliminary Objection must arise from pleadings, it must not be factual or be based on evidence that requires to be adduced by the normal rules of evidence. 26. The grounds in support of the 1 st Preliminary Objection have been set out at paragraph 2 (a-g) of this Ruling while the grounds in support of the 2 nd Preliminary Objection have been set out at paragraph 3 of this Ruling. The court shall examine each ground seriatim 27. Ground 1 (a) of the 1st Preliminary Objection is that the suit is statute barred by virtue of sections 27 to 30 of Land Adjudication Act, Section 7, 9 (1) and 26 of the Limitation of Actions and Section 15 of the National Land Commission Act. P a g e 18 | 21

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28. This ground raises pure points of law. 29. Ground 1(b) of the 1st P.O is that the suit is statute barred is based on section 7(9) 1 and 26 of the Limitation of Actions Act in so far as it relates to the title of suit property L.R No. Transmara/Olorien A/1 and alludes to the paragraphs 43 to 50 of the Plaint. This ground is based on pure points of law and arises by implication from the pleadings having been based from paragraphs 43 to 50 of the Plaint. 30. Ground 2 of the 1st P.O is that the matter being a claim of historical land injustice section 15 of National Land Commission Act allowed claims to be brought aNd processed by 6th Defendant by 2nd May 2017 and the Plaintiff historical land injustice claim was filed belatedly and was referenced NLC/HLI/311/2018 beyond statutory deadline. This ground is based on the plaintiff’s documents at pages 208-212 and 220 to 222 of the pleadings. 31. This particular ground, needs ascertainment of the documents by way of normal rules of evidence and therefore renders the preliminary objection as filed to be outside the scope of the definition of a preliminary objection as aforesaid. 32. In view of the findings on ground 2 of the preliminary objection, that the same requires ascertainment of the facts contained in documents by rules of evidence, the court shall not evaluate the other grounds of the 1 st Preliminary Objection in relation to issue No. 1. 33. Turning to the 2nd Preliminary Objection, whose grounds have been set out and subjecting the grounds thereof to the test. 34. Ground 1, the Plaintiff lacks legal capacity and locus standi having failed to transition into a community as mandatorily required under community Land Act, and the Community Land Regulations. 35. This ground is not a pure point of law as it also requires ascertainment of evidence on whether there was transition by the Plaintiff as required by the P a g e 19 | 21

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community Land Act, which renders this ground not to be a pure point of law. 36. It follows therefrom that as drafted the grounds of the 1 st Preliminary Objection are a mixed grill which include pure points of law and other grounds are based on factual and evidential issues, which finding the court equally makes of the 2nd Preliminary Objection. 37. Thus, in answer to issue No. 1 the court finds that both Notices of Preliminary Objections, require ascertainment of evidence and evaluation of facts which renders them not to be based on pure points of law capable of determining the suit in limine, and thus fail to meet the threshold of a Preliminary Objection. 38. Having found that the Preliminary Objections do not raise pure points of law, the court shall not determine the merits of grounds of the Preliminary Objection but shall treat the Preliminary Objections as a response to the pending application dated 5th of February 2026. 39. On what reliefs ought to issue, the court having found the Preliminary Objections not to meet the threshold of a Preliminary Objection thus disallows the same however the grounds in support of the Preliminary objections shall form the response to the pending application, whose direction shall be issued after delivery of the Ruling. 40. The costs of the P.Os shall be in the cause. Dated at Kilgoris this 30th day of September, 2026 Hon. M.N Mwanyale Judge In the presence of CA – Sylvia/Victor P a g e 20 | 21

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Mr. Odera for the Plaintiff Mr. Kabaiku for the 13th Defendant Mr. Kere for 9th to 11th Defendant Ms. Chitechi for 12th Defendant Ms. Olalo h/b for Mr. Koleyo for 6th Defendant Mr. Ranah h/b for Mr. Menge for 1st to 6th Defendant N/A for Mr. Mulili for Interested Party P a g e 21 | 21

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