Peter Tony Wambua & another v Benjamin Kivondo & 3 others

THE LAND REGISTRAR – COUNTY OF MACHAKOS..........3 RD DEFENDANT THE HONOURABLE ATTORNEY GENERAL.......................4TH DEFENDANT RULING Introduction 1. The Plaintiffs instituted this suit by a Plaint dated 16 th February 2026 and filed on the same date. Their claim is that Machakos/Nguluni/2934, measuring approximately 0.70 hectares, was hived off from Machakos/Nguluni/1682 and registered in the name of the late Charles Kivondo Muange on the basis of an alleged sale which, according to them, never took place. 2. The Plaintiffs plead that they lodged Objection No. 419 of 1998 before the Land Adjudication Officer and, being dissatisfied with the decision thereon, appealed to the Minister in Appeal No. 227 of 1998. They state that the appeal was ultimately heard on 13 th June, 2024 and a ELCLC E031/2026 RULING 2

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decision dated 16th April, 2024 was rendered in favour of the late Charles Kivondo Muange and his representatives. 3. The Plaintiffs consequently pray for judgment against the Defendants jointly and severally for: (a) A declaration that the said parcel of land No. MACHAKOS/NGULUNI/2934 measuring approximately 0.70Ha (the suit property) belonged to both the late NZISA KISEVE and LAZARUS MUOKI KISEVE and therefore vests in their estate and/or their beneficiaries. (b) A declaration that any purported sale of the suit property to the late CHARLES KIVONDO MUANGE was fraudulent, illegal and thus null and void ab initio. (c) deed The 3rd Defendant be ordered to cancel the title for parcel of land title No. MACHAKOS/NGULUNI/2934, issued and registered in the name of the late CHARLES KIVONDO MUANGE and the same be reverted back to form part of the parcel of land plot No. 1682 (MACHAKOS/NGULUNI/1682); and in ELCLC E031/2026 RULING 3

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the names of NZISA KISEVE and LAZARUS MUOKI KISEVE. (d) An order of permanent injunction do issue restraining the 1st and 2nd Defendants and the general estate and beneficiaries of the late CHARLES KIVONDO MUANGE, whether by themselves, their servants, agents, or any person whomsoever from doing any of the following acts, that is to say evicting, demolishing the Plaintiffs' houses, selling, leasing, charging or otherwise howsoever interfering with the Plaintiffs' quiet, peaceful, actual and exclusive possession, cultivation, use, development and enjoyment of the parcel of land known as Title Number MACHAKOS/NGULUNI/2934 and plot number 1682. (e) General damages. (f) Mesne profits from 15th October, 2012 to the year 2026. (g) ELCLC E031/2026 RULING Costs of the suit. 4

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(h) Any other relief this Honourable Court may deem just to grant. 4. It is important to point out at this stage that the 2 nd Defendant filed a Notice of Intention to Act in Person and a Notice of Withdrawal from the suit on 10th August, 2026. The Preliminary Objection 5. In response to the suit, the 1st and 2nd Defendants filed a Preliminary Objection dated 21st May, 2026, anchored on the following grounds: (a) THAT the suit against the 1st and 2nd Defendants is bad in law, misconceived, incompetent and fatally defective as the Plaintiffs claim is barred by virtue of Section 29 (1) (b) of the Land Adjudication Act Cap 284 Laws of Kenya which provides that the decision of the Minister shall be final. (b) THAT the dispute before the Minister was registered as Appeal No. 227 of 1998 ELCLC E031/2026 RULING 5

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(c) THAT the dispute herein having been heard by the Land Adjudication Officer and an Appeal determined by the Minister the same is res judicata in the circumstances (d) THAT the Plaint and the entire suit is incurably defective and the same should therefore be struck out with costs. (e) THAT the suit is premature, incompetent and an abuse of the Court process. (f) THAT the Orders sought against the Defendants cannot issue since the suit is improperly filed and therefore a nullity in its entirety. (g) THAT in the circumstances this court lacks the jurisdiction to entertain, hear and determine the suit herein which is clearly an abuse of the Court process and waste of judicial time Submissions ELCLC E031/2026 RULING 6

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6. When the matter came up for directions, the parties agreed that the Preliminary Objection be disposed of by way of written submissions. The 1st and 2nd Defendants duly filed their submissions dated 21st August, 2026. 7. The Plaintiffs filed their submissions on 30 September 2026 at 17:50. I have noted the submissions. The Preliminary Objection raises a question of law, which this Court shall determine on the basis of the pleadings and the applicable law. The 1st and 2nd Defendant’s submissions 8. In their submissions, the 1st and 2nd Defendants contended that the suit is barred by Section 29(1)(b) of the Land Adjudication Act, which provides that the Minister's decision on appeal shall be final. Counsel submitted that the dispute was heard by the Land Adjudication Officer and subsequently determined by the Minister in Appeal No. 227 of 1998, and that the adjudication register became final in all respects upon certification under Section 29(3)(b) of the Land Adjudication Act. ELCLC E031/2026 RULING 7

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9. Counsel further submitted that the Plaintiffs' suit, though disguised as a fresh action, is in substance an appeal against the Minister's decision. Reliance was placed on the decision in M'mucheke v Land Adjudication Officer Igembe District & 3 others; Jeremiah (Interested Party) [2023] KEELC 21395 (KLR), where it was held that where due process is followed and parties are heard, the Court will not interfere with the decision of the Minister, and that the decision of the Minister is final. 10. Counsel also relied on Republic v Minister, Ministry of Lands and Settlement Ex parte Mutiso Kiuyu [2011] KEHC 755 (KLR), for the proposition that the Minister's decision on appeal under Section 29 of the Land Adjudication Act is final, and a party cannot again initiate proceedings essentially challenging the decision of the Minister under the guise of judicial review. ELCLC E031/2026 RULING 8

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11. The 1st and 2nd Defendants consequently urged the Court to find that the suit is premature, incompetent, an abuse of the court process, and to strike it out with costs. 12. The Defendants further contend that the dispute, having been determined by the Land Adjudication Officer and subsequently on appeal by the Minister in Appeal No. 227 of 1998, is res judicata. They consequently urge the Court to find that the suit is premature, incompetent, an abuse of the process of the Court and liable to be struck out for want of jurisdiction. Issue for Determination 13. Having considered the Preliminary Objection, the Plaint and the submissions on record, the issue for determination is whether, in view of Section 29 of the Land Adjudication Act, this Court has jurisdiction to entertain the suit. Analysis and Determination 14. The principles for disputing a court’s jurisdiction are now old hat. It is trite law that the issue of jurisdiction of any court or ELCLC E031/2026 RULING 9

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tribunal, once raised, must be determined in limine. Where the Court or tribunal finds that it lacks jurisdiction, it must down its tools. These are the famous words of the late Nyarangi JA. in the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited [1989] 1 KLR: “I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no need for a continuation of the proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” ELCLC E031/2026 RULING 10

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15. Still discussing the significance of the question of jurisdiction of court or tribunal, the late Nyarangi JA (as he then was) summed up the statement of principle as follows: “It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided evidence before the forthwith court. on the It is immaterial whether the evidence is scanty or limited. Scanty or limited facts constitute the evidence before the court. A party who fails to question the jurisdiction of a court may not be heard to raise the issue after the matter no grounds is heard and a question of raised during the determined. I can see jurisdiction could not be why proceedings. As soon as that is done, the court should hear and dispose of that issue without further ado.” ELCLC E031/2026 RULING 11

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16. In its salutary judgment in Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR), the Supreme Court expressed itself as follows on the important question of jurisdiction: “A court’s jurisdiction flows from the either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 17. The jurisdiction of this Court is conferred by Article 162(2) (b) of the Constitution of Kenya, 2010, and Section 13 of the Environment and Land Court Act, No. 19 of 2011. Article 162(2)(b) establishes this Court to hear and determine disputes relating to the environment and the use and occupation of, and title to, land. 18. While this Court has broad jurisdiction in matters concerning the environment and land, that jurisdiction is subject to the statutory framework governing particular categories of ELCLC E031/2026 RULING 12

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disputes. Parliament has, through specific statutes, prescribed procedures for the determination of particular land disputes and, in doing so, circumscribed the circumstances in which the jurisdiction of this Court may be invoked. The Land Adjudication Act, Cap. 284 is one such statute. It establishes a comprehensive framework for the ascertainment and determination of rights and interests in land within adjudication sections. 19. Section 29 of the Land Adjudication Act, provides for appeals to the Minister. It states: “29. Appeal (1) Any person who is aggrieved by the determination of an objection under section 26 of this Act may, within sixty days after the date of the determination, appeal against the determination to the Minister by— (a) delivering to the Minister an appeal in writing specifying te grounds of appeal; and ELCLC E031/2026 RULING 13

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(b) sending a copy of the appeal to the Director of Land Adjudication, and the Minister shall determine the appeal and make such order thereon as he thinks just and the order shall be final. (2) The Minister shall cause copies of the order to be sent to the Director of Land Adjudication and to the Chief Land Registrar. (3) When the appeals have been determined, the Director of Land Adjudication shall— (a) alter the duplicate adjudication register to conform with the determinations; and (b) certify on the duplicate adjudication register that it has become final in all respects, and send details of the alterations and a copy of the certificate to the Chief Land Registrar, who shall alter the adjudication register accordingly.” ELCLC E031/2026 RULING 14

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20. Section 30 of the Act providing as follows: “30. Staying of land suits (1)Except with the consent in writing of the adjudication officer, no person shall institute, and no court shall entertain, any civil proceedings concerning an interest in land in an adjudication section until the adjudication register for that adjudication section has become final in all respects under section 29(3) of this Act.” 21. The question that therefore arises is whether, having regard to the provisions of Section 29 of the Act, this Court has jurisdiction to entertain the Plaintiff’s suit. 22. The Plaintiffs’ Plaint, as pleaded, expressly acknowledges the following facts: (a) At paragraph 16 of the Plaint, the Plaintiffs state that they filed Objection No. 419 of 1998 with the Land Adjudication Officer, Machakos District, and that the ELCLC E031/2026 RULING 15

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adjudication case was determined in favour of the late Charles Kivondo Muange vide a decision made on 13th May, 1998. (b) At paragraph 17 of the Plaint, the Plaintiffs state that they appealed the decision of the adjudication office to the Minister under Appeal No. 227 of 1998, and that the appeal was finally heard on 13th June, 2024 and determined vide a decision dated 16th April, 2024 in favour of the late Charles Kivondo Muange and his representatives. 23. The Plaintiffs further admit at paragraphs 18, 19 and 20 of the Plaint that they were left with the recourse of filing an application for leave to commence judicial review proceedings challenging the Minister’s decision, but that they failed to do so within the prescribed time because the 1st Plaintiff was hospitalized. They state that “the time having lapsed, the Plaintiffs aver that they have had no other options but to institute this suit in this Honourable Court in order to seek for justice.” ELCLC E031/2026 RULING 16

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24. It is therefore clear from the Plaint that the land was subjected to the adjudication process and that the Plaintiffs participated in that process. Their objection before the Land Adjudication Officer was determined against them and they thereafter invoked the appellate process under the Land Adjudication Act by appealing to the Minister. 25. What the Plaintiffs now challenge before this Court is the result of that process. Although the Plaint does not contain a prayer expressly couched as one for setting aside the Minister's decision, the declarations sought, the challenge to the alleged sale, the cancellation of the resultant title and the prayer for reversion of the land to parcel Machakos/Nguluni/1682 would, if granted, undo the effect of the determination made through the adjudication and appellate process. 26. The Plaintiffs are therefore seeking, through these proceedings, to reopen the outcome of the adjudication and appellate process. That cannot properly be done through a fresh suit before this Court. The appropriate procedure for challenging the Minister's decision on grounds of illegality, ELCLC E031/2026 RULING 17

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irrationality or procedural impropriety was judicial review, which the Plaintiffs acknowledge they did not institute within the prescribed period. 27. The Court of Appeal considered the same question in Amarnath (Suing on Behalf of the Estate of the Late Amarnath Gupta) v Kazungu & 2 others (Civil Appeal E033 of 2021) [2023] KECA 1280 (KLR) and, in relation to section 29 of the Land Adjudication Act, stated: “The Act is clear that any person aggrieved by a decision made under the Section 26 of the Act must follow the process under Section 29 and appeal to the Minister. Once the Minister, or the panel delegated to makes a determination, his order is final. That means the Minister’s decision cannot be appealed, whether under the Act or in Court. The option the Appellant had was to pursue Judicial Review process provided under Article 47 of the Constitution, and the Fair Administrative Action Act, 2015 a statute enacted pursuant to the Article 47 of the Constitution. He could not re-open the case and challenge it except through ELCLC E031/2026 RULING 18

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Judicial Review. The Appellant was attempting to undo the process he participated in using a process that is not provided for, and that is not allowed.” 28. This Court is bound by the foregoing decision. The Plaintiffs, having failed to institute judicial review proceedings within the prescribed period, now seek to challenge the same decision through a fresh suit. To permit the suit to proceed would circumvent the finality accorded to the Minister's decision under section 29 of the Land Adjudication Act and the prescribed period for instituting judicial review proceedings. 29. In Tobias Achola Osindi & 13 others v Cyprianus Otieno Ogalo & 6 others [2013] KEHC 2165 (KLR), Okongo J. stated: “It follows from the foregoing that once an area has been declared an adjudication area under the Act, the ascertainment and determination of rights and interests ELCLC E031/2026 RULING 19

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in land within the area is reserved by the law for the officers and quasi-judicial bodies set up under the Act... The court has no jurisdiction to ascertain and determine interests in land in an adjudication area. In my view, the role of the court is supposed to be supervisory only of the adjudication process. The court can come in to ensure that the process is being carried out in accordance with the law. The court can also interpret and determine any point or issue of law that may arise in the course of the adjudication process. The court cannot, however, usurp the functions and powers of the Land Adjudication Officer or other bodies set up under the Act to assist in the process of ascertainment of the said rights and interests in land.” 30. In the present case, the 1st and 2nd Defendants contend that the dispute was initially determined by the Land Adjudication Officer and subsequently on appeal to the Minister in Appeal No. 227 of 1998. The Plaintiffs themselves plead that they lodged Objection No. 419 of 1998 before the ELCLC E031/2026 RULING 20

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Land Adjudication Officer and, being dissatisfied with the determination thereof, preferred an appeal to the Minister. They further acknowledge that the appeal was ultimately determined in favour of the late Charles Kivondo Muange and his representatives. 31. The prayers sought in the Plaint, particularly prayer (c) seeking cancellation of the title deed and reversion of the suit property to its original parcel number, would require this Court to reopen the outcome of the adjudication and appellate process. That is not a jurisdiction conferred upon this Court under the Land Adjudication Act. The Plaintiffs' recourse against the Minister's decision lay in judicial review proceedings, which they did not institute within the prescribed period. 32. In the circumstances, this Court has no jurisdiction to entertain the suit. Accordingly, the Preliminary Objection dated 21st May, 2026 is hereby upheld. 33. The Plaintiffs' suit is struck out in its entirety with costs to the 1st and 2nd Defendants. ELCLC E031/2026 RULING 21

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It is so ordered. Delivered and Dated at Machakos this 1st day of October, 2026. HON. J. N. KUYIONI JUDGE 01.10.2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Catherine Court Assistant. Mr. Munyasya Advocate for the Plaintiff. Mr. Kisini Advocate for the 1st and 2nd Defendants. ELCLC E031/2026 RULING 22

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