Republic v County Director of Fisheries, The County of Homa Bay & 1 other

COUNTY DIRECTOR OF FISHERIES, THE COUNTY OF HOMA BAY ................................................................................................... 1ST RESPONDENT SUB-COUNTY DIRECTOR OF FISHERIES, SUBA NORTH SUBCOUNTY ........................................................................................ 2ND RESPONDENT AND ELLY OGUTU ABWAO ....................................................... EX PARTE APPLICANT BONPHACE OUMA LUKAS ............................................. EX PARTE APPLICANT RULING 1. This suit was commenced by the Originating Motion dated 26th November 2025 upon leave being sought and obtained in Homa Bay High Court Judicial Review Miscellaneous Application No. E017 of 2025. The application essentially seeks that the Court be pleased to issue an Order of Certiorari to quash the decision made jointly by the respondents on or about the 5th November 2025 appointing and installing caretaker committee at Nyachebe Beach Management Unit (BMU), Suba North, Homa Bay County, thereby nullifying the results of the BMU elections conducted on the 14th April 2025. 2. The ex parte applicants (hereinafter, the applicants) also prayed for Orders of Prohibition and Mandamus among other reliefs, contending that, instead of facilitating the conclusion of the lawful electoral process, the respondents arbitrarily and without public participation or legal authority, purported to appoint and install a caretaker committee to manage the affairs of the Nyachebe BMU. The applicants contended that the respondents’ conduct constitutes procedural impropriety and therefore contravenes Section 4(3) of the Fair Administrative Action Act. 3. In response to the application, the respondents filed a Notice of Preliminary Objection dated 19th January 2026. Their Preliminary Objections was premised on the following grounds: 4. (a) That the applicants have not exhausted all the internal appeal mechanisms before moving the Court as stipulated in Section 9(2) of the Fair Administrative Action Act, thus rendering the suit premature. (b) That the applicants have not led any evidence to show that they have attempted the alternative dispute resolution mechanisms as provided for under the Constitution and the Fisheries (Beach Management Unit) Regulations, 2007 before invoking the jurisdiction of this Court. (c) That this suit is sub-judice Homa Bay Judicial Review Application No. E017 of 2025, filed by the applicants against the respondents for the same reliefs. (d) That the application dated 26th November 2025 is incompetent, fatally defective and an abuse of the process of the Court. The Preliminary Objection was canvassed by way of written submissions, pursuant to the directions given herein on 20th January 2026. In their written submissions dated 21st January 2026 the respondents gave the context of their Preliminary Objection by pointing out that the applicants instituted a Judicial Review application against them vide Homabay Judicial Review Application No. E017 of 2025: Elly Ogutu Abwao and Bonphace Ouma v Homabay County Director Fisheries and Suba North Sub County Director https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2486/eng@2026-01-27 2

page 2 of 6

of Fisheries, seeking judicial review orders, including an Order of Prohibition to prohibit them from appointing an alleged caretaker committee. They explained that the said application was duly considered and leave was granted by Lady Justice Odera on condition, inter alia, that the substantive motion be filed within 21 days. 5. The respondents contended that, for some unexplained reasons, instead of the applicant filing the substantive Notice of Motion application in the Judicial Review No. E017 of 2025 wherein leave was granted, the applicants proceeded to file this current suit, namely, Homa Bay Judicial Review No. E013 of 2025 via the Originating Motion dated 26th November 2025 seeking for similar Judicial Review orders against the same Respondent. In their submission there are two cases in two different courts on a similar Judicial review matter pending in court. It was on that account that the respondent filed the Notice of Preliminary Objection on the basis of the doctrines of sub judice and exhaustion. 6. The respondents proposed a single issue for determination, namely whether the Preliminary Objection raised is sustainable? They relied on the decisions of the Court of Appeal in the case of Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 for the proposition that jurisdiction is foundational and cannot be assumed or implied. The respondents posited that the question of whether this Court has jurisdiction to hear and determine the applicants’ suit hinges on the critical issue of whether the same issues raised in Judicial Review Application No. E017 of 2025 by the applicants against the respondents are the same issues raised in the instant matter. 7. It was the submission of the respondents that already the Court vide the Ruling delivered by Hon Lady Justice Odera Teresa Achieng considered a similar application in Judicial Review Application No. E017 of 2025 and issued directions for the disposal of the said application. They added that matter is coming up for mention on 2nd February 2026. It was therefore their contention that the instant suit, Judicial Review No. E013 OF 2025 is res judicata and an abuse of the court process. They relied on the case of Erdemann Property Limited v National Environment Tribunal; National Environment Management Authority & another (Interested Parties) [2020] KEELC 3063 (KLR) where the court dismissed the Judicial Review application on the ground of sub judice because Judicial Review No. 41 of 2019 and Machakos High Court Petition No. 38 of 2019 were still pending before Court. 8. The respondents also relied on Section 7 of the Civil Procedure Act and the cases of John Florence maritime Services Limited & Another v Cabinet Secretary for Transport And Infrastructure & 3 Others [2015] eKLR and Uhuru Highway Development Limited vs Central Bank of Kenya & 2 others [1996] eKLR to buttress their arguments. 9. On whether the applicants have exhausted alternative dispute resolution mechanisms as required under the law, the respondents made reference to Article 234(2)(i) of the Constitution, Section 9(2) of the Fair Administrative Actions Acts and Fisheries Management and development (Beach Management Units) Regulations 2024. Legal Notice 55 and submitted that they create a mandatory, non-discretionary pathway for the resolution of beach management disputes. They submitted that, in the present case, the applicants have neither demonstrated evidence of the appeal having been duly filed, nor disclosed the specific subject matter or legal issues involved. In their submission, no correspondence, reference number, follow-up inquiry, or request for reasons or feedback from the County director fisheries has been presented before the Court. 10. According to the respondents, in the absence of such evidence, it is impossible for the Court to know what legal questions to determine, if any, as entertaining this application in such a vacuum would be materially improper and risk a duplication of effort or conflict of jurisdiction. It would amount to the Court encroaching upon an administrative process that is either incomplete or unverified. They added https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2486/eng@2026-01-27 3

page 3 of 6

that, though the applicants are registered members of BMU, there is no indication that they took any meaningful steps to inquire into the disputed issues. 11. The respondents relied on the case of Geoffrey Muthinja Kabiru & Another v Samuel Muguna Henry & 1756 Others [2015] eKLR for the proposition that to allow litigants to ignore administrative processes without demonstrating that they are unavailable, ineffective, or unfair would open the door to forum shopping and judicial interference in matters statutorily assigned elsewhere. They further submitted that delay or prejudice on the part of the applicants, if any, is self-inflicted due to the applicants’ failure to institute an appeal as by law provided for. 12. Consequently, the respondents urged the Court to find that the instant Judicial Review application is premature, improperly before this Court, and ought to be struck out with costs for want of jurisdiction. 13. On their part, the respondents’ filed written submissions dated 20th January 2026. They proposed the following two issues for determination, namely: (a) Whether the applicants were required to exhaust and in fact failed to exhaust, internal appeal mechanisms prior to approaching the Court; and, (b) Whether the present judicial review proceedings are sub-judice. 14. The applicants submitted that, since the Fisheries Management and Development (Beach Management Units) Regulations, 2024 do not provide for internal appeal mechanism, the respondents’ Preliminary Objection is misconceived. They nevertheless pointed out that they wrote letters to the 2nd respondent seeking finalization of the Nyachebe BMU elections; and, instead of afirming the election results the respondents unilaterally appointed a caretaker committee. The applicants purported to annex copies of the documents to their written submissions for consideration by the Court. 15. On whether the proceedings are sub-judice, the applicant explained that there exists no suit known as Homa Bay Judicial Review No. E017 of 2025. They explained that what they filed was Homa Bay Judicial Review Misc. Application No. E017 of 2025 seeking leave to file a substantive judicial review application; and that upon leave being granted they filed this suit. In their submission that miscellaneous application is spent as it was filed pursuant to Order 53 Rule 1 of the Civil Procedure Rules for leave. They made reference to Kambona v Cabinet Secretary Ministry of Health & another; Nguka & 5 others (Interested Parties) [2025] KEHC 18659 (KLR) in which an order was made in a similar matter for the substantive application to be filed in a separate judicial review suit. In their view, the prayers in the miscellaneous file are spent and the file is only open pending formal closure. 16. In sum, the applicants submitted that the respondents’ Preliminary Objection is devoid of merit and prayed that it be dismissed with costs to pave way for the hearing and determination of the substantive application herein. 17. What amounts to a preliminary objection was aptly captured in Mukisa Biscuits Manufacturing Co. Ltd. v West End Distributors [1969] EA 696 thus: “ …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. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration...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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2486/eng@2026-01-27 4

page 4 of 6

pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion…” 18. Similarly, in Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 Others [2015] eKLR the Supreme Court emphasized the point that: “ ...a preliminary objection may only be raised on a “pure question of law”. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record…” 19. The written submissions filed herein show that the parties present divergent views on many issues. It emerges from the submissions made that the parties have presented disparate facts as to whether or not the applicants have exhausted the available alternative dispute resolution mechanisms. The respondents stated that: “ …the applicants have not led any evidence to show that they have attempted the alternative dispute resolution mechanisms as provided for under the Constitution and the Fisheries (Beach Management Unit) Regulations 2007 before invoking the jurisdiction of this Court. 20. Any preliminary point that is based on evidence cannot be a valid preliminary objection. Secondly, as to whether or not there exists a separate suit known as Homa Bay Judicial Review No. E017 of 2025 is also a matter of fact which the parties are not in agreement about. Indeed, the applicant responded to the objection by relying on documents that they purported to annex to their written submissions. That is impermissible. 21. In Oraro v Mbaja [2005] 1 KLR 141, Hon. Ojwang, J. (as he then was) held that: “ ...A "preliminary objection" correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed...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..." 22. It is therefore my finding that the respondetns’ Preliminary Objection was improperly taken and must be deprecated. In Mukisa Biscuits Manufacturing case Sir Charles Newbold, P. emphasized the point that: “ 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 has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop”. 23. In the light of the foregoing, I find no merit in the respondents’ Preliminary Objection dated 19th January 2026. The same is hereby dismissed with an order that the costs thereof be borne by the respondents. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2486/eng@2026-01-27 5

page 5 of 6

It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT HOMA BAY THIS 27TH DAY OF JANUARY 2026 OLGA SEWE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2486/eng@2026-01-27 6

page 6 of 6