I. Introduction
1. Before the Honourable Court for its determination is the Notice of Motion application dated 9 th June, 2025 by the CHUNKY LIMITED , the Petitioner. The application filed pursuant to the provisions of Articles 22, 23, 27, 40, 47 and 50 of the Constitution of Kenya 2010, Section 13 of the Environment and Land Court Act, No. 19 of 2011, Section 128 of the Land Act No. 6 of 2012 and all other enabling provisions of the law.
2. The application was opposed through a Notice of preliminary objection and Grounds of Opposition both dated 21 st November, 2025 by Kenya Railways. Limited , the Respondent herein.
II. The case by the Plaintiffs/Applicants
3. The Plaintiff/Applicant sought for the following orders before this Honourable Court:-
a) Spent.
b) That pending hearing and determination of this application inter - parties this Honourable Court be pleased to issue a temporary order directing the Respondent to grant the Applicant and its agents full unimpeded access to plot MN/VI/909 via the DK 100 bridge under pass to enable the Applicant to continue its industrial park operations.
c) That pending hearing and determination of this Petition this Honourable Court be pleased to issue a temporary order directing the Respondent to grant the Applicant and its agents full unimpeded access to plot No. MN/VI/909 via the DK 100 bridge under pass to enable the Applicant to continue its industrial park operations.
d) That costs of this application be provided for.
4. The application was premised upon grounds listed on its face and averments made under the 13 Paragraphed supporting affidavit of HARJI GOVIND RUDA dated 9 th June, 2025 together with the annextures marked as “A, B, C, E & F” annexed hereto. He deponed as follows that:-
a) He was an adult of sound mid and understanding, a Director of the Applicant.
b) The deponent stated that the Applicant was and still is the registered proprietor of plot no MN/VI/909, CR No 7239 (Hereinafter referred to as “The Suit Property”) where it was developing an industrial park employing over 200 workers and supporting thousands of livelihoods in the Counties of Mombasa and Kwale.
c) In the year 2016 a portion of the Plaintiff’s land was compulsorily acquired for the Standard Gauge Railway (SGR) as per Kenya Gazette Notice no 5486.
d) However sometime in late January, 2022 the Respondent denied the applicant access to a portion of the suit property MN/VI/909 via the DK 100 bridge underpass as communicated in letters dated 29 th January, 2022 and 28 th April, 2023.
e) The deponent stated that the Respondent demanded Kshs 2,576,846/- as a pre-condition for access without providing a breakdown or legal access.
f) The applicant has tried to resolve the issue through correspondences but the Respondent has not provided a satisfactory response.
g) It was deposed that there is no alternative access route to the affected portion of the plot causing irreparable harm including financial losses estimated at a sum of Kenya Shillings Ninety Eight Million One Hundred and Eight Thousand Four Hundred (Kshs. 98,108,400/-), disruption of the industrial park project and potential job losses.
h) The Respondents actions violate the Applicant’s constitutional rights as envisaged under the provision of Articles 27, 40, 47 and 232, causing financial loss, emotional distress and disruption of operations.
i) The Applicant was bound to suffer irreparable harm if interim access was not granted as the industrial parks operations and the livelihoods of over 200 workers at risk.
j) Further that the application was brought in good faith and no prejudice will be occasioned to the Respondent if the interim orders sought are granted as they merely preserve status quo pending the determination of the Petition.
III. The case by the Respondents
A. Preliminary Objection
5. The Preliminary Objection by the Respondent was raised on the following points of law that: -
a). This Honourable Court lacked jurisdiction to entertain the present application and Petition that:-
ii). This Honourable Court lacks original jurisdiction to hear and determine the present suit for access and/or right of way through the Respondent’s land.
iii). Public/community right of way in view of provision of Sections 143 of the Land Act, as read with Sections 144,145,146 of the land act is a preserve of the National Land Commission.
b). This Honourable Court could only sit on appeal on matters of public/community right of way as per Section 146 [7] of the Land Act.
c). The Petition herein is time barred by dint of Section 87 ( b ) of the Kenya Railways Corporation Act, Cap. 397 having been instituted more than 12 months from the alleged cause of action.
B. Ground of Opposition
6. The Respondent objected to the Notice of Motion application dated 9 th June, 2025 on the following grounds that:-
a) Sometime in the year 2014, the Respondent acquired ownership to a portion of the Petitioner/Applicants land MN/VI/909, through compulsorily acquisition for the purpose of the construction of the Standard Gauge Railway [SGR].
b) After the acquisition, acquired portion became land held by the Kenya Railways Corporation and the SGR was constructed on the acquired portion, which cut across the Petitioner’s property into two.
c) The Petitioner/Applicant had no legal right or claim over the respondents acquired portion of land where the SGR now stands whatsoever
d) Subsequently, the Petitioner/Applicant approached the Respondent for access which for all intents and purposes is a right of way through the Respondents acquired parcel via a grade separated crossing to one of it’s the Petitioners own portion
e) The mandate to create public or community right of way was strictly a statutory function of the National Land Commission and not the Environment & Land Court which did not have original jurisdiction to hear this dispute
f) The mandatory injunction orders sought by the Petitioner, to compel the Respondent to grant access/right of way, could not be granted at this interlocutory stage for want for any special compelling circumstances to do so.
g) The Petitioner/Applicant had not demonstrated any special circumstances to warrant the grant of the mandatory injunction for access at this stage without hearing the Petition on merit.
h) In any case, if the Petition/Applicant was successful in the main Petition any loss suffered would be quantifiable and can be compensated by damages
i) The Petitioner/Applicant had not explained the delay in bringing the present application from the admitted compulsory acquisition the land in the year 2014 to 9 th June, 2025 when the application filed
j) The application and Petition herein was time barred by virtue of the provision of Section 87 (b) of the Kenya Railways Act.
k) In view of the foregoing, the Respondent maintains that the application and Petition by extension offended the doctrine of exhaustion and constitution avoidance which they invoked.
l) The Petitioner/Applicant herein had brought this application and Petition in bad faith and with unclean hands knowing fully well it was paid for the sale of the land in question through compulsory acquisition but still wants arbitral access without due regard to law.
m) The Respondent herein would suffer prejudice if the application herein was allowed especially putting the SGR to security and structural risk to the detriment of the public
n) The application herein was unmaintainable bad in law and an abuse of the process of court frivolous and vexatious
o) The said Notice of Motion application herein ought to be dismissed with costs.
IV. Submissions
7. On 8 th December, 2025, parties herein were directed to file submissions in dispensing off with the application. Subsequently, the parties herein complied as instructed.
8. The court reserved 18 th June, 2026 as the date to delivered its Ruling accordingly. It will summarise the same as here below.
A. The Written Submissions by the Plaintiff
9. The Law firm of Messrs. Borona & Associates Advocates filed submissions on behalf of the Plaintiff herein, dated 11 th February 2026. Mr. Borona Advocate commenced the submissions by stating that the application was aimed at securing interim access pending the hearing and determination of the substantive petition which seeks constitutional and statutory reliefs under Articles 40,47 and 23 of the constitution as well as the Land Act.
10. In response to the preliminary objection, it was submitted that Respondent’s contention that the petition offends sections 143 -146 of the Land Act on community rights of way and ought to be addressed administratively by the National Land Commission is legally flawed and misconstrues the nature of the grievance.
11. The Learned Counsel submitted that the Petitioner was not seeking a public or communal right of way but rather the restoration or access to a private portion of land vide an already existing underpass created beneath the railway line. That the issue was purely on land use and access and was therefore a dispute falling under the jurisdiction of the Environment and Land Court.
12. On the argument that the claim is time barred pursuant to the provisions of Section 87[b] of the Kenya Railways Corporation Act. The Learned Counsel submitted that the claim does not assert a tortious cause of action for damages but raises issues of constitutional violation and breaches of statutory duties. That the cause of action also arose in January, 2022 when the Respondent denied the Applicant access and in late year 2023 when monetary demands were made.
13. In response to the averments raised in the preliminary objection, the Applicant submitted that the claim was not for ownership restitution or cancellation of the acquired portion. That it was from the continued obstruction of aces to the remainder of its own land which was now landlocked and economically sterile.
14. The Applicant stated that proof had been made that showed compelling grounds why the interim reliefs sought ought to be granted. That the circumstances do meet the threshold set legally in grant of injunctions.
15. Lastly, the Counsel submitted that the Respondent was not bound to suffer any damages or harm and as such the preliminary objection ought to be dismissed, the grounds of opposition need to be overruled and the notice of motion dated 9 th June, 2025 allowed as prayed.
C. The Written Submissions by the Respondents
16. The Law firm of Messrs. Nyaanga & Mugisha Advocates filed submissions dated 3 rd March, 2025 on behalf of the Respondent herein. Mr. Ngaine Advocate commenced his submissions by stating that there were in opposition of the application herein. The Counsel identified two issues for determination:-
a. Whether this Court has jurisdiction to determine this dispute
b. Whether the prayers sought by the Applicant can be granted
17. On the first issue identified for determination. The Learned Counsel submitted that the court was devoid of the requisite jurisdiction to determine this dispute. That the substratum of the Applicant's application was for grant of an access and/or a right of way, through the Respondent's property properly acquired by compulsory acquisition, into its property. Reference was made to the provisions of Section 143 of the Land Act, No. 6 of 2012 on Power of the Commission to create public rights of way, as read with Sections 144, 145, 146 of the Land Act, expressly grants the power to create a right of way to public land on the National Land Commission.
18. The Respondent referred to the provisions of Section 146 (7) of the Land Act on determination on creation of a public way. That from the said provisions, the Respondent's Preliminary Objection arises out of a clear implication of the pleadings, and is on a pure point of law. It was submitted that this Honourable Court did not have original jurisdiction to entertain the present dispute on grant of access/right of way/wayleave, noting that the Applicant had clearly not exhausted all the available remedies provided for in statute before bringing the present Petition.
19. According to Counsel the dispute was clearly for a right of way, however that the Petitioner/Applicant did not exhaust all the available remedies set out in the statute, especially Section 146 of the Land Act before approaching this Honourable Court vide the present petition, hence the present Preliminary Objection. That it was a well - established principle of law that a party ought to exhaust all the legal avenues provided for in law before approaching the courts and the present petition ought to fail on this ground. Reliance was placed on the persuasive case of: “ Nairobi High Court Petition No. 359 Of 2012 Francis Gitau Parsimei –Versus - National Alliance Party & 4 Others” which was cited with approval in the case of “ John Kokand Makau – Versus - County Gov't of Makueni & 6 Others [2018] eKLR” , where it was held that where the Constitution and or statute establish a dispute resolution procedure, then that procedure must be used.
20. Therefore, it was averred that the present Application/Petition and must fail for violating the doctrine of constitutional avoidance and thereby want of jurisdiction.
21. On the second issue for determination. It was submitted that the Applicant had not made a case for grant of a mandatory inunction at an interlocutory stage. The Applicant had not demonstrated any special and/or exceptional circumstances to warrant this Honourable Court to grant access/right of way as sought. Furthermore, that since the acquisition for the part of the suit property for SGR project in the year 2016, the Applicant had never moved this Court, which the Respondent argued was inordinate delay, that the Applicant had failed to explain.
22. The Learned Counsel for the Respondent maintained that the delay of about 9 years is inordinate as to be inexcusable in the circumstances, to grant any interlocutory orders, especially a mandatory injunction. The present application was an afterthought and the delay, which has not been explained, amounts to an abuse of court process. Reference was made to the holding by the Court of Appeal case of “ Aviation Cargo Support Limited – Versus - St. Mark Freight Services Limited Ca Civ. App. 98 of 2013 Nairobi” .
23. That in any case, the Applicant has not explained how circumstances have suddenly changed on the suit property that were not present after the acquisition and construction of the SGR in year 2017 to enable the grant of the prayers sought without hearing the dispute on merit. The Respondent stated that there was no sufficient cause to grant the prayers sought and hence the instant application ought to fail.
VII. Analysis and Determination
24. I have carefully read and considered both the Preliminary Objection and the application herein by the parties. The myriad of cases cited herein by parties, the relevant provisions of the Constitution of Kenya, 2010 and statutes.
25. In order to arrive at an informed, just, equitable and reasonable decision, the Honourable Court has framed four [4] issues for its determination. These are: -
a) Whether the Preliminary Objection dated 21 st November, 2025 raised by the Defendant herein meets the threshold of such an objection by Law and Precedent.
b) Whether the Preliminary Objection dated 21 st November, 2025 raised by the Defendant herein is meritorious or not.
c) Whether the orders sought in the Notice of Motion Application dated 9 th June, 2025 can issue.
d) Who bears the costs of the application and the preliminary objection?
ISSUE No. a.] Whether the Preliminary Objection dated 21 st November, 2025 raised by the Defendant herein meets the threshold of such an objection by Law and Precedent.
26. Under this Sub – heading, the court will first set out in establishing the meaning, nature and meaning of the concept of the Preliminary objection. According to the Black Law Dictionary a Preliminary Objection is defined as:
“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary”
27. The case of:- “ Mukisa Biscuits – Versus - West End Distributors Ltd (1969) E.A 696” held as follows:
“A preliminary objection consists of a point of law which has been pleaded, or which arises out of clear implication out of the pleadings and which if argued as 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 …
Justice Newbold in the said suit argues 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 had to be ascertained or if what is sought is the exercise of judicial discretion”
28. Also, the case of “ John Musakali vs. Speaker County of Bungoma & 4 others (2015) eKLR , it was held that: -
“The position in law is that a preliminary objection should arise from the pleadings and on the basis that facts are agreed by both sides. Once raised the preliminary objection should have the potential to disposing of the suit at that point without the need to go for trial. If, however, facts are disputed and remain to be ascertained, that would not be a suitable preliminary objection on a point of law.”
29. Legally speaking, a Preliminary objection has to be based on pure law and not facts.
ISSUE No. b). Whether the Preliminary Objection dated 21 st November, 2025 raised by the Defendant herein is meritorious or not.
30. The preliminary objection raised in response to the application is on grounds that this court lacks the requisite jurisdiction to determine the dispute herein as the same is a preserve of the National Land Commission and the court can only sit on appeal of the same. It is noteworthy that this court draws its jurisdiction from Article 165(2) (b) of the Constitution and Section 13(1) of the Environment and Land Court Act. Section 13 of the Act is enacted pursuant to Article 165(2) (b).
31. From the above authorities, it is clear that a preliminary objection ought to be based on a pure point of law, and consists of facts which are not disputed by either party. In this case, I am satisfied that the preliminary objection raises a pure point of law as it challenges the jurisdiction of this court to hear and determine this suit. I base that on the Ugandan case of “ Yudaya Lutta Musoke – Versus - Greenland Bank (In Liquidation) HCCS No. 506 of 2001 [2002] KALR 533” , where Ogoola P.J (as he then was) pointed out that 165:- ‘preliminary objections are only justifiable when they are founded purely on law and argued on the face of pleadings. Where Court has to go beyond the pleadings and seek to rely on evidence adduced, or where the objection seeks the exercise of judicial discretion, it is improper to do so by way of preliminary point of objection’.
32. It is trite that the issue of jurisdiction having been raised by a party should be determined at the earliest possible opportunity. This is because jurisdiction is the lifeline of a case and without jurisdiction, a Court ought to down its tools. See “ Owners of the Motor Vessel "Lillian S" vs Caltex Oil Kenya Limited (1989) KLR 1” . A Court’s jurisdiction flows from either the Constitution or legislation or both.
33. The Supreme Court in the Matter of the Interim Independent Electoral Commission Constitutional Application No. 2 of 2011 discussed the issue of jurisdiction in the following manner:-
“Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution ; by statute law, and by principles laid out in judicial precedent.... the Lillian "SS" case establishes that jurisdiction flows from the law, and the recipient, the Court, is to apply the same with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation or by way of endeavours to discern or interpret the intentions of Parliament where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court their respective jurisdiction is donated by the Constitution "
34. In the words of: “ Chief Justice Marshall of the U.S. Supreme Court in Cohens – Versus - Virginia 19 U.S. 264 (1821)” : -
“It is most true that this Court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution . We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution . Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is exercise our best judgment, and conscientiously perform our duty. ”
35. I have keenly perused the preliminary objection and the application as filed, from the preliminary objection, the Respondent maintains that there exists proper mechanism for a party seeking redress for denial of access of a public way. According to them, this was a preserve of the National Land Commission pursuant to the provisions of sections 143 of the land act as read with Sections 144,145,146 of the Land Act.
36. The statutory underpinnings for the creation of a right of way usually over private property for public use are well stipulated under the provision of Section 143 of the Land Act, No. 6 of 2012. They are as follows:
“143. Power of the Commission to create public rights of way
(1) Subject to and in accordance with this section and section 146, the Commission may, create a right of way which shall be known as public right of way.
(2) A public right of way may be—
(a) a right of way created for the benefit of the national or county government, a local authority, a public authority or any corporate body to enable all such institutions, organisations, authorities and bodies to carry out their functions, referred to in this Act as a wayleave; or
(b) a right of way created for the benefit of the public, referred to in section 145 of this Act as a communal right of way.
(3) A public right of way shall attach to and run with the servient land in respect of which it has been created and shall be binding on all owners from time to time of the servient land, any manner they are occupying the land, whether under a land or a derivative right thereof, or under customary law or as a successor in title to any such owner or as a trespasser.
(4) A wayleave shall authorize persons in the employment to or who are acting as agents of or contractors for any of the organizations, authorities and bodies to enter on the servient land for the purpose of executing works, building and maintain installations and structures and in setting all such works, installations and structures on the servient land and to pass and re-pass along that wayleave in connection with purposes of those organisations, authorities or bodies.
(5) A communal right of way created for the benefit of the public shall entitle the public to pass and re-pass along that right of way and in areas designated for that purpose, to undertake recreational activities or other prescribed activity of the kind permitted in that designated area.”
37. I have perused the rest of the provisions of the Land Act, No. 6 of 2012 as referred to by the Respondent. Section 144 of the Act is on the creation of a Wayleave while Section 146 of the Act is on the determination on creation of a public right of way. Before discussing the provisions of Section 146, I wish to point out that Section 145 of the Land Act addresses the application for a communal right of way and states that the same ought to be made to the commission. Section 146 outlines the procedure for the same by stating that upon receipt of information for creation of a right of way, the commission then considers the information together with any objection made to it.
38. The commission then recommends to the cabinet secretary whether to appoint a public inquiry for further consideration or to refer the issue to the county government for its opinion on whether to approve. The cabinet secretary can also initiate and facilitate negotiations between persons who made applications.
39. From the above provisions of law under the Land Act 2012 which I find to be relevant to the instant suit, it is clear that the first port of call when seeking the creation of a public right of way of the National Land Commission. It is thus rather obvious that the Applicant put the cart before the horse in instituting this suit before first approaching the National Land Commission on the issue. The Respondent in raising the preliminary objection stated that the Applicant had failed to exhaust the laid down dispute resolution mechanism and hence violated the laid down principles on “ the doctrine of exhaustion” .
40. On this issue, it is noted that superior courts have in various decisions, including the Supreme Court of Kenya has in various decisions including the case of: “ Bernard Murage – Versus - Fine Serve Africa Limited & 3 others [2015] eKLR discussed the doctrine of exhaustion and its importance. The court in the just mentioned case declared that: -
‘Where there exists an alternative remedy through statutory law, then it is desirable that such statutory remedy should be pursued first.'
41. The doctrine was aptly captured by the Court of Appeal in the case of:- “ Republic – Versus - National Environment Management Authority Ex parte Sound Equipment Limited” , where the Court of Appeal observed: -
“.....Where there was an alternative remedy and especially where Parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted and that in determining whether an exception should be made and judicial review granted, it is necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it ...”
42. Further in the case of: “ Speaker of the National Assembly – Versus - James Njenga Karume [1992] eKLR” , where the Court of Appeal held that: -
“… In our view, there is considerable merit in the submission that 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. We observed without expressing a concluded view that order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions....”
43. Be that as it may, I have perused the contents of the application before court and the nature of the prayers sought. It is noteworthy that there exists a way already but the same was taken into the possession of the Respondent in terms of ownership at the time of compulsory acquisition of the suit property by the Respondent. The Applicant states that after the said acquisition, it became difficult to access its remaining parcel being the suit property herein without having to use the DK 100 bridge under pass which is owned by the Respondent. The court has taken quality time to familiarise itself with correspondence between the parties herein with regards to the use of the DK 100 bridge under pass.
44. The Applicant vide a letter dated 26 th July, 2022 made an application to be allowed to use the underpass bridge. It was responded to by a letter from the Respondent seeking Wayleave charges totalling to a sum of Kenya Shillings Two Million Five Seventy Six Thousand Eight Fourty Six Hundred (Kshs 2,576,846/-). The Applicant in the response dated 28 th April, 2023 informed the Respondent that it was amiable to paying charges for use of the bridge but at a reasonable fee as what had been quoted was exorbitant. The Respondent was however reluctant in reducing the fees and allowing the applicants to gain access to its property and hence the application for injunction pending the determination of the suit.
45. It is my firm belief that the Applicant made an effort to negotiate with the Respondent for use of the bridge before escalating the matter to the relevant bodies including this court for creation of a right of way. It is necessary to mention that the National Land Commission as “statutory Quasi Judicial” body certain legal limitations on jurisdiction. For instance, has no power to grant both interlocutory and mandatory injunctions and as such, the only place for reprieve to the Applicant would be this court. The question is whether there arise any special circumstances that surpass the strictness deployed in the doctrine of exhaustion.
46. The Court in the case of:- “ William Odhiambo Ramogi & 3 others – Versus - Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested parties) (2020) eKLR” outlined the exceptions to the rule as follows:-
“60. As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirem
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1. Before the Honourable Court for its determination is the Notice of Motion application dated 9 th June, 2025 by the CHUNKY LIMITED , the Petitioner. The application filed pursuant to the provisions of Articles 22, 23, 27, 40, 47 and 50 of the Constitution of Kenya 2010, Section 13 of the Environment and Land Court Act, No. 19 of 2011, Section 128 of the Land Act No. 6 of 2012 and all other enabling provisions of the law.
2. The application was opposed through a Notice of preliminary objection and Grounds of Opposition both dated 21 st November, 2025 by Kenya Railways. Limited , the Respondent herein.
II. The case by the Plaintiffs/Applicants
3. The Plaintiff/Applicant sought for the following orders before this Honourable Court:-
a) Spent.
b) That pending hearing and determination of this application inter - parties this Honourable Court be pleased to issue a temporary order directing the Respondent to grant the Applicant and its agents full unimpeded access to plot MN/VI/909 via the DK 100 bridge under pass to enable the Applicant to continue its industrial park operations.
c) That pending hearing and determination of this Petition this Honourable Court be pleased to issue a temporary order directing the Respondent to grant the Applicant and its agents full unimpeded access to plot No. MN/VI/909 via the DK 100 bridge under pass to enable the Applicant to continue its industrial park operations.
d) That costs of this application be provided for.
4. The application was premised upon grounds listed on its face and averments made under the 13 Paragraphed supporting affidavit of HARJI GOVIND RUDA dated 9 th June, 2025 together with the annextures marked as “A, B, C, E & F” annexed hereto. He deponed as follows that:-
a) He was an adult of sound mid and understanding, a Director of the Applicant.
b) The deponent stated that the Applicant was and still is the registered proprietor of plot no MN/VI/909, CR No 7239 (Hereinafter referred to as “The Suit Property”) where it was developing an industrial park employing over 200 workers and supporting thousands of livelihoods in the Counties of Mombasa and Kwale.
c) In the year 2016 a portion of the Plaintiff’s land was compulsorily acquired for the Standard Gauge Railway (SGR) as per Kenya Gazette Notice no 5486.
d) However sometime in late January, 2022 the Respondent denied the applicant access to a portion of the suit property MN/VI/909 via the DK 100 bridge underpass as communicated in letters dated 29 th January, 2022 and 28 th April, 2023.
e) The deponent stated that the Respondent demanded Kshs 2,576,846/- as a pre-condition for access without providing a breakdown or legal access.
f) The applicant has tried to resolve the issue through correspondences but the Respondent has not provided a satisfactory response.
g) It was deposed that there is no alternative access route to the affected portion of the plot causing irreparable harm including financial losses estimated at a sum of Kenya Shillings Ninety Eight Million One Hundred and Eight Thousand Four Hundred (Kshs. 98,108,400/-), disruption of the industrial park project and potential job losses.
h) The Respondents actions violate the Applicant’s constitutional rights as envisaged under the provision of Articles 27, 40, 47 and 232, causing financial loss, emotional distress and disruption of operations.
i) The Applicant was bound to suffer irreparable harm if interim access was not granted as the industrial parks operations and the livelihoods of over 200 workers at risk.
j) Further that the application was brought in good faith and no prejudice will be occasioned to the Respondent if the interim orders sought are granted as they merely preserve status quo pending the determination of the Petition.
III. The case by the Respondents
A. Preliminary Objection
5. The Preliminary Objection by the Respondent was raised on the following points of law that: -
a). This Honourable Court lacked jurisdiction to entertain the present application and Petition that:-
ii). This Honourable Court lacks original jurisdiction to hear and determine the present suit for access and/or right of way through the Respondent’s land.
iii). Public/community right of way in view of provision of Sections 143 of the Land Act, as read with Sections 144,145,146 of the land act is a preserve of the National Land Commission.
b). This Honourable Court could only sit on appeal on matters of public/community right of way as per Section 146 [7] of the Land Act.
c). The Petition herein is time barred by dint of Section 87 ( b ) of the Kenya Railways Corporation Act, Cap. 397 having been instituted more than 12 months from the alleged cause of action.
B. Ground of Opposition
6. The Respondent objected to the Notice of Motion application dated 9 th June, 2025 on the following grounds that:-
a) Sometime in the year 2014, the Respondent acquired ownership to a portion of the Petitioner/Applicants land MN/VI/909, through compulsorily acquisition for the purpose of the construction of the Standard Gauge Railway [SGR].
b) After the acquisition, acquired portion became land held by the Kenya Railways Corporation and the SGR was constructed on the acquired portion, which cut across the Petitioner’s property into two.
c) The Petitioner/Applicant had no legal right or claim over the respondents acquired portion of land where the SGR now stands whatsoever
d) Subsequently, the Petitioner/Applicant approached the Respondent for access which for all intents and purposes is a right of way through the Respondents acquired parcel via a grade separated crossing to one of it’s the Petitioners own portion
e) The mandate to create public or community right of way was strictly a statutory function of the National Land Commission and not the Environment & Land Court which did not have original jurisdiction to hear this dispute
f) The mandatory injunction orders sought by the Petitioner, to compel the Respondent to grant access/right of way, could not be granted at this interlocutory stage for want for any special compelling circumstances to do so.
g) The Petitioner/Applicant had not demonstrated any special circumstances to warrant the grant of the mandatory injunction for access at this stage without hearing the Petition on merit.
h) In any case, if the Petition/Applicant was successful in the main Petition any loss suffered would be quantifiable and can be compensated by damages
i) The Petitioner/Applicant had not explained the delay in bringing the present application from the admitted compulsory acquisition the land in the year 2014 to 9 th June, 2025 when the application filed
j) The application and Petition herein was time barred by virtue of the provision of Section 87 (b) of the Kenya Railways Act.
k) In view of the foregoing, the Respondent maintains that the application and Petition by extension offended the doctrine of exhaustion and constitution avoidance which they invoked.
l) The Petitioner/Applicant herein had brought this application and Petition in bad faith and with unclean hands knowing fully well it was paid for the sale of the land in question through compulsory acquisition but still wants arbitral access without due regard to law.
m) The Respondent herein would suffer prejudice if the application herein was allowed especially putting the SGR to security and structural risk to the detriment of the public
n) The application herein was unmaintainable bad in law and an abuse of the process of court frivolous and vexatious
o) The said Notice of Motion application herein ought to be dismissed with costs.
IV. Submissions
7. On 8 th December, 2025, parties herein were directed to file submissions in dispensing off with the application. Subsequently, the parties herein complied as instructed.
8. The court reserved 18 th June, 2026 as the date to delivered its Ruling accordingly. It will summarise the same as here below.
A. The Written Submissions by the Plaintiff
9. The Law firm of Messrs. Borona & Associates Advocates filed submissions on behalf of the Plaintiff herein, dated 11 th February 2026. Mr. Borona Advocate commenced the submissions by stating that the application was aimed at securing interim access pending the hearing and determination of the substantive petition which seeks constitutional and statutory reliefs under Articles 40,47 and 23 of the constitution as well as the Land Act.
10. In response to the preliminary objection, it was submitted that Respondent’s contention that the petition offends sections 143 -146 of the Land Act on community rights of way and ought to be addressed administratively by the National Land Commission is legally flawed and misconstrues the nature of the grievance.
11. The Learned Counsel submitted that the Petitioner was not seeking a public or communal right of way but rather the restoration or access to a private portion of land vide an already existing underpass created beneath the railway line. That the issue was purely on land use and access and was therefore a dispute falling under the jurisdiction of the Environment and Land Court.
12. On the argument that the claim is time barred pursuant to the provisions of Section 87[b] of the Kenya Railways Corporation Act. The Learned Counsel submitted that the claim does not assert a tortious cause of action for damages but raises issues of constitutional violation and breaches of statutory duties. That the cause of action also arose in January, 2022 when the Respondent denied the Applicant access and in late year 2023 when monetary demands were made.
13. In response to the averments raised in the preliminary objection, the Applicant submitted that the claim was not for ownership restitution or cancellation of the acquired portion. That it was from the continued obstruction of aces to the remainder of its own land which was now landlocked and economically sterile.
14. The Applicant stated that proof had been made that showed compelling grounds why the interim reliefs sought ought to be granted. That the circumstances do meet the threshold set legally in grant of injunctions.
15. Lastly, the Counsel submitted that the Respondent was not bound to suffer any damages or harm and as such the preliminary objection ought to be dismissed, the grounds of opposition need to be overruled and the notice of motion dated 9 th June, 2025 allowed as prayed.
C. The Written Submissions by the Respondents
16. The Law firm of Messrs. Nyaanga & Mugisha Advocates filed submissions dated 3 rd March, 2025 on behalf of the Respondent herein. Mr. Ngaine Advocate commenced his submissions by stating that there were in opposition of the application herein. The Counsel identified two issues for determination:-
a. Whether this Court has jurisdiction to determine this dispute
b. Whether the prayers sought by the Applicant can be granted
17. On the first issue identified for determination. The Learned Counsel submitted that the court was devoid of the requisite jurisdiction to determine this dispute. That the substratum of the Applicant's application was for grant of an access and/or a right of way, through the Respondent's property properly acquired by compulsory acquisition, into its property. Reference was made to the provisions of Section 143 of the Land Act, No. 6 of 2012 on Power of the Commission to create public rights of way, as read with Sections 144, 145, 146 of the Land Act, expressly grants the power to create a right of way to public land on the National Land Commission.
18. The Respondent referred to the provisions of Section 146 (7) of the Land Act on determination on creation of a public way. That from the said provisions, the Respondent's Preliminary Objection arises out of a clear implication of the pleadings, and is on a pure point of law. It was submitted that this Honourable Court did not have original jurisdiction to entertain the present dispute on grant of access/right of way/wayleave, noting that the Applicant had clearly not exhausted all the available remedies provided for in statute before bringing the present Petition.
19. According to Counsel the dispute was clearly for a right of way, however that the Petitioner/Applicant did not exhaust all the available remedies set out in the statute, especially Section 146 of the Land Act before approaching this Honourable Court vide the present petition, hence the present Preliminary Objection. That it was a well - established principle of law that a party ought to exhaust all the legal avenues provided for in law before approaching the courts and the present petition ought to fail on this ground. Reliance was placed on the persuasive case of: “ Nairobi High Court Petition No. 359 Of 2012 Francis Gitau Parsimei –Versus - National Alliance Party & 4 Others” which was cited with approval in the case of “ John Kokand Makau – Versus - County Gov't of Makueni & 6 Others [2018] eKLR” , where it was held that where the Constitution and or statute establish a dispute resolution procedure, then that procedure must be used.
20. Therefore, it was averred that the present Application/Petition and must fail for violating the doctrine of constitutional avoidance and thereby want of jurisdiction.
21. On the second issue for determination. It was submitted that the Applicant had not made a case for grant of a mandatory inunction at an interlocutory stage. The Applicant had not demonstrated any special and/or exceptional circumstances to warrant this Honourable Court to grant access/right of way as sought. Furthermore, that since the acquisition for the part of the suit property for SGR project in the year 2016, the Applicant had never moved this Court, which the Respondent argued was inordinate delay, that the Applicant had failed to explain.
22. The Learned Counsel for the Respondent maintained that the delay of about 9 years is inordinate as to be inexcusable in the circumstances, to grant any interlocutory orders, especially a mandatory injunction. The present application was an afterthought and the delay, which has not been explained, amounts to an abuse of court process. Reference was made to the holding by the Court of Appeal case of “ Aviation Cargo Support Limited – Versus - St. Mark Freight Services Limited Ca Civ. App. 98 of 2013 Nairobi” .
23. That in any case, the Applicant has not explained how circumstances have suddenly changed on the suit property that were not present after the acquisition and construction of the SGR in year 2017 to enable the grant of the prayers sought without hearing the dispute on merit. The Respondent stated that there was no sufficient cause to grant the prayers sought and hence the instant application ought to fail.
VII. Analysis and Determination
24. I have carefully read and considered both the Preliminary Objection and the application herein by the parties. The myriad of cases cited herein by parties, the relevant provisions of the Constitution of Kenya, 2010 and statutes.
25. In order to arrive at an informed, just, equitable and reasonable decision, the Honourable Court has framed four [4] issues for its determination. These are: -
a) Whether the Preliminary Objection dated 21 st November, 2025 raised by the Defendant herein meets the threshold of such an objection by Law and Precedent.
b) Whether the Preliminary Objection dated 21 st November, 2025 raised by the Defendant herein is meritorious or not.
c) Whether the orders sought in the Notice of Motion Application dated 9 th June, 2025 can issue.
d) Who bears the costs of the application and the preliminary objection?
ISSUE No. a.] Whether the Preliminary Objection dated 21 st November, 2025 raised by the Defendant herein meets the threshold of such an objection by Law and Precedent.
26. Under this Sub – heading, the court will first set out in establishing the meaning, nature and meaning of the concept of the Preliminary objection. According to the Black Law Dictionary a Preliminary Objection is defined as:
“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary”
27. The case of:- “ Mukisa Biscuits – Versus - West End Distributors Ltd (1969) E.A 696” held as follows:
“A preliminary objection consists of a point of law which has been pleaded, or which arises out of clear implication out of the pleadings and which if argued as 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 …
Justice Newbold in the said suit argues 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 had to be ascertained or if what is sought is the exercise of judicial discretion”
28. Also, the case of “ John Musakali vs. Speaker County of Bungoma & 4 others (2015) eKLR , it was held that: -
“The position in law is that a preliminary objection should arise from the pleadings and on the basis that facts are agreed by both sides. Once raised the preliminary objection should have the potential to disposing of the suit at that point without the need to go for trial. If, however, facts are disputed and remain to be ascertained, that would not be a suitable preliminary objection on a point of law.”
29. Legally speaking, a Preliminary objection has to be based on pure law and not facts.
ISSUE No. b). Whether the Preliminary Objection dated 21 st November, 2025 raised by the Defendant herein is meritorious or not.
30. The preliminary objection raised in response to the application is on grounds that this court lacks the requisite jurisdiction to determine the dispute herein as the same is a preserve of the National Land Commission and the court can only sit on appeal of the same. It is noteworthy that this court draws its jurisdiction from Article 165(2) (b) of the Constitution and Section 13(1) of the Environment and Land Court Act. Section 13 of the Act is enacted pursuant to Article 165(2) (b).
31. From the above authorities, it is clear that a preliminary objection ought to be based on a pure point of law, and consists of facts which are not disputed by either party. In this case, I am satisfied that the preliminary objection raises a pure point of law as it challenges the jurisdiction of this court to hear and determine this suit. I base that on the Ugandan case of “ Yudaya Lutta Musoke – Versus - Greenland Bank (In Liquidation) HCCS No. 506 of 2001 [2002] KALR 533” , where Ogoola P.J (as he then was) pointed out that 165:- ‘preliminary objections are only justifiable when they are founded purely on law and argued on the face of pleadings. Where Court has to go beyond the pleadings and seek to rely on evidence adduced, or where the objection seeks the exercise of judicial discretion, it is improper to do so by way of preliminary point of objection’.
32. It is trite that the issue of jurisdiction having been raised by a party should be determined at the earliest possible opportunity. This is because jurisdiction is the lifeline of a case and without jurisdiction, a Court ought to down its tools. See “ Owners of the Motor Vessel "Lillian S" vs Caltex Oil Kenya Limited (1989) KLR 1” . A Court’s jurisdiction flows from either the Constitution or legislation or both.
33. The Supreme Court in the Matter of the Interim Independent Electoral Commission Constitutional Application No. 2 of 2011 discussed the issue of jurisdiction in the following manner:-
“Assumption of jurisdiction by Courts in Kenya is a subject regulated by the Constitution ; by statute law, and by principles laid out in judicial precedent.... the Lillian "SS" case establishes that jurisdiction flows from the law, and the recipient, the Court, is to apply the same with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation or by way of endeavours to discern or interpret the intentions of Parliament where the wording of legislation is clear and there is no ambiguity. In the case of the Supreme Court, Court of Appeal and High Court their respective jurisdiction is donated by the Constitution "
34. In the words of: “ Chief Justice Marshall of the U.S. Supreme Court in Cohens – Versus - Virginia 19 U.S. 264 (1821)” : -
“It is most true that this Court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution . We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution . Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is exercise our best judgment, and conscientiously perform our duty. ”
35. I have keenly perused the preliminary objection and the application as filed, from the preliminary objection, the Respondent maintains that there exists proper mechanism for a party seeking redress for denial of access of a public way. According to them, this was a preserve of the National Land Commission pursuant to the provisions of sections 143 of the land act as read with Sections 144,145,146 of the Land Act.
36. The statutory underpinnings for the creation of a right of way usually over private property for public use are well stipulated under the provision of Section 143 of the Land Act, No. 6 of 2012. They are as follows:
“143. Power of the Commission to create public rights of way
(1) Subject to and in accordance with this section and section 146, the Commission may, create a right of way which shall be known as public right of way.
(2) A public right of way may be—
(a) a right of way created for the benefit of the national or county government, a local authority, a public authority or any corporate body to enable all such institutions, organisations, authorities and bodies to carry out their functions, referred to in this Act as a wayleave; or
(b) a right of way created for the benefit of the public, referred to in section 145 of this Act as a communal right of way.
(3) A public right of way shall attach to and run with the servient land in respect of which it has been created and shall be binding on all owners from time to time of the servient land, any manner they are occupying the land, whether under a land or a derivative right thereof, or under customary law or as a successor in title to any such owner or as a trespasser.
(4) A wayleave shall authorize persons in the employment to or who are acting as agents of or contractors for any of the organizations, authorities and bodies to enter on the servient land for the purpose of executing works, building and maintain installations and structures and in setting all such works, installations and structures on the servient land and to pass and re-pass along that wayleave in connection with purposes of those organisations, authorities or bodies.
(5) A communal right of way created for the benefit of the public shall entitle the public to pass and re-pass along that right of way and in areas designated for that purpose, to undertake recreational activities or other prescribed activity of the kind permitted in that designated area.”
37. I have perused the rest of the provisions of the Land Act, No. 6 of 2012 as referred to by the Respondent. Section 144 of the Act is on the creation of a Wayleave while Section 146 of the Act is on the determination on creation of a public right of way. Before discussing the provisions of Section 146, I wish to point out that Section 145 of the Land Act addresses the application for a communal right of way and states that the same ought to be made to the commission. Section 146 outlines the procedure for the same by stating that upon receipt of information for creation of a right of way, the commission then considers the information together with any objection made to it.
38. The commission then recommends to the cabinet secretary whether to appoint a public inquiry for further consideration or to refer the issue to the county government for its opinion on whether to approve. The cabinet secretary can also initiate and facilitate negotiations between persons who made applications.
39. From the above provisions of law under the Land Act 2012 which I find to be relevant to the instant suit, it is clear that the first port of call when seeking the creation of a public right of way of the National Land Commission. It is thus rather obvious that the Applicant put the cart before the horse in instituting this suit before first approaching the National Land Commission on the issue. The Respondent in raising the preliminary objection stated that the Applicant had failed to exhaust the laid down dispute resolution mechanism and hence violated the laid down principles on “ the doctrine of exhaustion” .
40. On this issue, it is noted that superior courts have in various decisions, including the Supreme Court of Kenya has in various decisions including the case of: “ Bernard Murage – Versus - Fine Serve Africa Limited & 3 others [2015] eKLR discussed the doctrine of exhaustion and its importance. The court in the just mentioned case declared that: -
‘Where there exists an alternative remedy through statutory law, then it is desirable that such statutory remedy should be pursued first.'
41. The doctrine was aptly captured by the Court of Appeal in the case of:- “ Republic – Versus - National Environment Management Authority Ex parte Sound Equipment Limited” , where the Court of Appeal observed: -
“.....Where there was an alternative remedy and especially where Parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted and that in determining whether an exception should be made and judicial review granted, it is necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it ...”
42. Further in the case of: “ Speaker of the National Assembly – Versus - James Njenga Karume [1992] eKLR” , where the Court of Appeal held that: -
“… In our view, there is considerable merit in the submission that 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. We observed without expressing a concluded view that order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions....”
43. Be that as it may, I have perused the contents of the application before court and the nature of the prayers sought. It is noteworthy that there exists a way already but the same was taken into the possession of the Respondent in terms of ownership at the time of compulsory acquisition of the suit property by the Respondent. The Applicant states that after the said acquisition, it became difficult to access its remaining parcel being the suit property herein without having to use the DK 100 bridge under pass which is owned by the Respondent. The court has taken quality time to familiarise itself with correspondence between the parties herein with regards to the use of the DK 100 bridge under pass.
44. The Applicant vide a letter dated 26 th July, 2022 made an application to be allowed to use the underpass bridge. It was responded to by a letter from the Respondent seeking Wayleave charges totalling to a sum of Kenya Shillings Two Million Five Seventy Six Thousand Eight Fourty Six Hundred (Kshs 2,576,846/-). The Applicant in the response dated 28 th April, 2023 informed the Respondent that it was amiable to paying charges for use of the bridge but at a reasonable fee as what had been quoted was exorbitant. The Respondent was however reluctant in reducing the fees and allowing the applicants to gain access to its property and hence the application for injunction pending the determination of the suit.
45. It is my firm belief that the Applicant made an effort to negotiate with the Respondent for use of the bridge before escalating the matter to the relevant bodies including this court for creation of a right of way. It is necessary to mention that the National Land Commission as “statutory Quasi Judicial” body certain legal limitations on jurisdiction. For instance, has no power to grant both interlocutory and mandatory injunctions and as such, the only place for reprieve to the Applicant would be this court. The question is whether there arise any special circumstances that surpass the strictness deployed in the doctrine of exhaustion.
46. The Court in the case of:- “ William Odhiambo Ramogi & 3 others – Versus - Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested parties) (2020) eKLR” outlined the exceptions to the rule as follows:-
“60. As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirem
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