Introduction
1. The matter slated for determination is the Notice of Preliminary Objection dated 13th April 2026, lodged by Kenya Electricity Transmission Company Limited (KETRACO), the 2nd Defendant herein.
2. In the said Objection, KETRACO asserts that pursuant to Section 133C (6) of the Land Act, this entire suit is filed in the wrong forum. The Objector contends that the mandatory first instance jurisdiction concerning matters of wayleave creation rests exclusively with the Land Acquisition Tribunal.
3. To place the Objection into proper perspective, a brief foray into the factual background is necessary. The Plaintiffs, Beatrice Titoyian Koimerek, Mulu Peter Mutuku, and Justus Mutuku Musembi, instituted this suit on their own behalf and as representatives of plot owners on parcel Loitoktok/Mbirikani/733 who are affected by the KETRACO wayleave.
4. As pleaded in the Amended Plaint, the Plaintiffs claim ownership of approximately 60 land parcels measuring 50 by 100 feet located at Emukutan Shopping Centre, Oldonyo Wuas sub-location in Kajiado County. They allege to have acquired these parcels as private owners from members of the Mbirikani Group Ranch.
5. The gravamen of the Plaintiffs' case is that KETRACO unlawfully, unprocedurally, and maliciously acquired wayleave rights over their plots without their consent or involvement. The Plaintiffs aver that the dispute escalated when KETRACO served them with eviction notices dated 8th November 2022, demanding that they demolish their structures and vacate the plots within seven days.
6. Aggrieved by these actions, the Plaintiffs approached this Court seeking, inter alia, a declaration that the acquisition of the wayleave by KETRACO is illegal. Furthermore, they seek permanent injunctions restraining KETRACO and the other defendants from trespassing, evicting them, or dealing with the subject parcels until lawful compensation is made.
7. It is against this factual and procedural backdrop that KETRACO fundamentally challenges this Court's assumption of jurisdiction before the exhaustion of the statutory dispute resolution mechanisms established under the Land Act.
Directions
8. The preliminary objection was canvassed by way of written submissions, the submissions of which have been duly considered in the writing of the ruling.
Issues for determination
9. I have carefully considered the Notice of Preliminary Objection dated 13th April 2026 and the rival submissions by the parties. The singular issue arising for determination is: Whether this Court has jurisdiction to entertain this suit in the first instance, or whether the dispute falls within the exclusive primary jurisdiction of the Land Acquisition Tribunal established under Section 133C of the Land Act.
Analysis and Determination
10. Before delving into the substantive issue raised, it is important to briefly outline the nature and scope of a preliminary objection.
11. A preliminary objection was authoritatively defined in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, where Law JA stated:
“So far as I am aware, 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.”
Sir Charles Newbold P. in the same case further observed:
“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.”
12. The objection before the Court challenges the jurisdiction of this Court to entertain the present suit. Jurisdiction being a pure point of law, the objection properly falls within the ambit of a preliminary objection as contemplated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696.
13. It is now settled law that jurisdiction is everything and without it a court must down its tools. In the celebrated case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, Nyarangi JA stated:
“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 basis for a continuation of proceedings pending other evidence.
14. The Preliminary Objection before this Court is founded upon Section 133C(6) of the Land Act. The said provision stipulates as follows:
“Despite the provisions of sections 127, 128 and 148(5), a matter relating to compulsory acquisition of land or creation of wayleaves, easements and public right of way shall, in the first instance, be referred to the Tribunal.”
15. The above provision is couched in mandatory terms. Parliament deliberately employed the words “shall, in the first instance”, thereby making it compulsory that disputes relating to compulsory acquisition, wayleaves, easements and rights of way be first ventilated before the Land Acquisition Tribunal.
16. Further, Section 133C(1) of the Land Act provides:
“The Tribunal has jurisdiction to hear and determine appeals from the decision of the Commission in matters relating to the process of compulsory acquisition of land.”
17. Section 133C(7) further grants the Tribunal power to:
“confirm, vary or quash the decision of the Commission.”
18. Additionally, Section 133C(8) expressly empowers the Tribunal to determine constitutional and fair administrative action complaints arising from compulsory acquisition disputes. The section provides:
“The Tribunal may, in matters relating to compulsory acquisition of land, hear and determine a complaint before it arising under Articles 23(2) and 47(3) of the Constitution, using the framework set out under the Fair Administrative Action Act or any other law.”
19. From the pleadings before Court, the Plaintiffs challenge the process through which KETRACO allegedly acquired wayleave rights over the suit properties. The Plaintiffs contend that the acquisition was unlawful, unprocedural, malicious and undertaken without their consent or participation. They further impugn the eviction notices issued by KETRACO and seek declarations and injunctive reliefs aimed at invalidating the wayleave process.
20. It is therefore evident that the substratum of the dispute revolves around the creation and acquisition of a wayleave by KETRACO. In this regard, the dispute falls squarely within the ambit of Section 133C(6) of the Land Act.
21. The doctrine of exhaustion is now firmly embedded in our jurisprudence. Where Parliament has provided a statutory dispute resolution mechanism, parties are obligated to exhaust the same before approaching the Court. Courts only intervene in exceptional circumstances.
22. The Court of Appeal in Speaker of the National Assembly v James Njenga Karume [1992] eKLR held:
“Where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”
23. Similarly, the Court of Appeal in Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR emphasized:
“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked.”
24. This Court acknowledges the legislative intent behind the establishment of the Land Acquisition Tribunal through the Land Value (Amendment) Act, 2019. The Tribunal was specifically created as a specialized forum to expeditiously resolve disputes arising from compulsory acquisition and wayleave processes.
25. The Plaintiffs have urged this Court to assume jurisdiction on account of alleged violations of constitutional rights and illegal conduct by the Defendants. However, Section 133C(8) expressly clothes the Tribunal with jurisdiction to entertain complaints founded upon Articles 23(2) and 47(3) of the Constitution in matters relating to compulsory acquisition and wayleaves. Consequently, the mere framing of grievances in constitutional or administrative law language does not automatically oust the statutory jurisdiction of the Tribunal.
26. The Court must also observe that no exceptional circumstances have been demonstrated to warrant bypassing the statutory mechanism established under the Land Act. There is no evidence placed before Court showing that the Tribunal is unavailable, ineffective, biased, or incapable of granting appropriate relief.
27. Accordingly, this Court finds and holds that the dispute herein ought to have been lodged before the Land Acquisition Tribunal in the first instance as required under Section 133C(6) of the Land Act. The inevitable conclusion is that this Court’s jurisdiction was prematurely invoked.
28. In the premises, the Notice of Preliminary Objection dated 13th April 2026 is merited and is hereby upheld. Consequently:
A. This Court declines jurisdiction to entertain the suit in the first instance.
B. The Plaint herein is struck out for want of jurisdiction with costs to the 2nd Defendant.
C. The Plaintiffs are at liberty to pursue their grievances before the Land Acquisition Tribunal established under Part VIIIA of the Land Act.
It is so ordered.
Dated, Signed and Delivered Virtually this 21st Day of May, 2026.
M.D. MWANGI
JUDGE
In the virtual presence of:
Mr. Ochieng for the 2nd Defendant
Mr. Pareno for the 1st Defendant
Mr. Nyamagwa h/b for Ms. Vosera for the Plaintiffs
Court Assistant: Alex
M.D. MWANGI
JUDGE