RULING
1. Before me is a Preliminary Objection dated 14th October 2025. it was brought by the 1st to 28th Defendants. It was filed against the backdrop of pleadings filed by the Plaintiff herein against all the Defendants. Since the determination of such an issue requires the court to examine the parties’ pleadings and the law, it is apt to begin by considering the plaintiff’s pleadings herein first as the basis for understanding reasoning of the court.
2. The Plaintiff pleaded that he sued as the administrator of the Estate of Valentinus Ondere, the deceased. He added that in 2011 the 1st, 11th, and Tobias Ondere the 24th Defendant’s deceased father, one Valentinus Ondere, together with other members of the Kirina family corruptly influenced and/or colluded with the Land Adjudication Officer, during the demarcation process, and registered land parcel SUBA/KITAWA/2463 in Valentinus Ondere's name. it was his claim that the land parcel originally belonged to Lila Magati (deceased) who was the grandfather to Samwel Kiaabwe, the plaintiff. Further, that the said Lila Magati occupied the suit land since 1914. The deceased, Lila Magati gave to his son Opere Lila land parcel No. Suba/Kitawa/2463, who took possession of it.
3. The parcel was later subdivided into 32 smaller portions which are occupied by the Defendants. The late Valentinus Ondere Nyambaria and other Kirina family members had earlier on in 1968 invaded the (undivided) land which they cleared and started claiming ownership. That happened after the death of the Plaintiff's grandfather, in 1964.
4. It was the Plaintiff’s further claim that the father to the Plaintiff took the matter to Ndhiwa African District Court being Land Case No. 34 of 1968. It was heard and judgment delivered. In the said judgment, the Court ordered that the land be shared equally. It was demarcated, giving each party his own portion.
5. In 1992, Dismas Odudo Obembo, and other Kirina family members constructed homes at night on the Plaintiff's family land without their permission or/consent. They were arrested and charged at Homabay Chief Magistrates Court. They were found guilty of forcible detainer and fined Ksh. 400/= or 6 months imprisonment. Further, the court found that the family of Lila Opere was in occupation of the suit land legally having occupied it since the year 1914.
6. Further, the 29th and 30th Defendants brought back the families of the 12th and 16th Defendants who were brothers to the then accused, one Dismus Obembo and also 4th, 13th, 26th and 28th who were sons of Domnick Kirina Ongungu. The 29th and 30th Defendants also brought back the 24th defendant who was the son of Mabura Otieno. That was despite the outcome of the Criminal case 1502 of 2019 by which the said persons had been found to be trespassers. In or about the year 2011, Samwel Kiabwe Opere filed an eviction suit against Valentinus Ondere and Damaris Mabura before the Magistrate’s Court in Homabay. The Court visited the suit land and observed vide MISC 64 OF 2011 that Valentine Ondere was not in occupation of the Land. He was aggrieved with the decision of the Magistrate court and filed a Judicial Review No.76 of 2011.
7. He pleaded further that between the years 2011 and 2018, the Suba Land Adjudication Officer and the Land Registrar, Homabay County caused a number of illegal entries to be made in the register of the said land. He particularized three of the alleged entries. He added that the Adjudication officer took advantage of the death of Opere Lila who had passed away in the year 2004 and registered the whole of land parcel SUBA/KITAWA/2463in the names of Nyambaria's Family. The Plaintiff’s attempt to file an Appeal was frustrated by the fact that, the Adjudication officer refused to issue them with a letter instituting the Appeal.
8. In or about 2018, the land Registrar, Homabay County, caused two allegedly Illegal and fraudulent entries, which he particularized, to be made in the register of the suit land. These were the registration of the suit land in the names of the 1st to 28th defendants, and issuing title deeds thereof. He pleaded that this was illegal, null and void for want of succession in respect of the estate of Opere Lila. He particularized the illegality and nullity. He added that the acts and/omissions of the 1st to 28th Defendants, the Land Adjudication Officer, and the Land Registrar were fraudulent, negligent and/or reckless. He gave the particulars of the fraud and/or negligence or recklessness. They were four. Further, he pleaded the particulars of fraud and/or negligence or recklessness on the part of the 29th and 30th Defendants which were six in number. He then sought the reliefs that there be issued against the Defendants jointly and severally:
a) A declaration that all entries made in the original register of land parcel No. SUBA/KITAWA/2463 and the resulting title numbers were irregular, illegal, unlawful and therefore null and void.
b) An order directing the Land Adjudication officer, Suba to revoke the earlier demarcation which was done in favour of the Valentinus Ondere (deceased) or any other Defendants herein.
c) An order directing the Land Adjudication officer, Suba herein to conduct fresh demarcation on the suit parcel of land in favour of the plaintiff herein.
d) An order directing the Land Registrar, Homabay to rectify the original register of Land Parcel No. SUBA/KITAWA/2463 by revoking al subdivisions and/or resulting title numbers and reconstructing the mother title,
e) An order directing the 1st to 28th defendants to deliver vacant possession of the suit properties registered in their names to the plaintiff.
f) An Order directing that the Land Registrar, Homabay registers the whole of the suit property, including the resultant parcel which retained the original number in the name of the Plaintiff herein to hold in trust for the family of Opere Lila.
g) A permanent injunction be issued restraining the defendants by themselves, their agents, servants, employees, assigns, personal representatives and any other person claiming authority from building on, disposing off or dealing with the suit property(s) in any manner whatsoever.
h) An eviction order against the defendants evicting them from part of the suit parcel where they have trespassed onto and are currently using.
i) General damages for trespass and loss of proprietary rights for the period.
j) Costs of the suit.
k) Interest on (d) above.
l) Any other reliefs that the Court may deem fit to grant.
9. The 1st – 28th filed a “Defendants' Statement of Defence” by which they denied all the allegations of the Plaintiff.
The Preliminary Objection
10. THE 1ST-28th defendants filed a notice of preliminary objection dated 14th October 20025. Their preliminary objection was premised on the following grounds:
1. The Honourable Court is Devoid and/or Bereft of Jurisdiction to entertain and/or adjudicate upon the subject Dispute pursuant to Sections 26 and 29 of Land Adjudication Act Cap 284 Laws of Kenya.
2. In any event, the instant suit is barred by the provisions of Section 4(2) of the Limitations of Actions Act, Chapter 22 and Section 3 of Public Authorities Act Cap 39 Laws of Kenya
3. At any rate, the instant suit does not Disclose and/or capture any reasonable cause of action against the Ist - 28th Defendants.
4. The instant suit amounts to and/or constitutes an abuse of the due process of Court.
5. The suit herein is Res-judicata by dint of KISII HC MISC. APPLICATION NO. 76 OF 2011(JR) and OBJECTIONS PROCEEDINGS NO.'S 44-48 OF 2014
6. The suit herein amounts to forum shopping.
Response to the Preliminary Objection
11. The plaintiff filed a reply to the Preliminary Objection and an affidavit in support of his reply to the preliminary objection, both dated 11th December 2025. Since the determination of a preliminary objection does not depend on factual issues, all the facts deponed in the supporting affidavit sworn on 11th December 2025 are irrelevant for the purpose herein and there is no need to reproduced them at this stage, for consideration as that would invite the court to determine the merits of facts at a preliminary objection stage hence making a grave error because they would not have been subjected to the test, process and standard of adduction of evidence by way of examination in chief, cross examination and re examination. Regarding the response titled, “PLAINTIFF'S REPLY TO NOTICE OF PRELIMINARY OBJECTION” which too is dated 11th December 2026 is a document whose content is pretty the same as the party’s written submissions. First, it is a document not known in law regarding how Preliminary Objections are take. Secondly, as it appears to me, it basically is a set of submissions or arguments in support of the Plaintiff’s view on the Objection, and its content will be considered together with the submissions.
Submissions
12. The preliminary objection was canvassed by way of written submissions. The defendants filed their submission dated 10th December 2025. They identified one issue for determination, being, whether the preliminary objection was merited. ]They cited the case of Mukisa Biscuits Manufacturing Co. Limited v West End Distributors [1969] EA 696 to outline the parameters of a preliminary objection. They submitted that a preliminary objection should only address pure points of law and cannot be raised where facts have to be ascertained or where what is being sought is a matter of the discretion of the court.
13. The defendant submitted that plot number 2463 Kitawa Adjudication Section was lawfully and procedurally adjudicated and demarcated and registered in the name of Valentinus Ondere Nyambaria, who is now deceased. They added that the plaintiff never challenged the said adjudication proceedings, despite the plaintiff being fully aware of the said adjudication process. They contended that the plaintiff lodged a miscellaneous application in Homa bay DRMC MISC NO 64 OF 2011 seeking to evict the defendants. besides, they contended that the plaintiff did not appeal against the aforesaid adjudication proceedings. As such, the defendants maintained that the plaintiff did not exhaust all the possible legal avenues before approaching this court. on this basis, the defendants concluded that this court does not have jurisdiction to hear and determine the instant suit pursuant to sections 26 and 29 of the Land Adjudication Act. They relied on of Speaker of the National Assembly v Karume (Civil Application 92 Of 1992) [1992] KECA 42 (KLR) (Ruling) to buttress the argument that parties must exhaust available remedies where mechanisms of redress are prescribed in law.
14. Further, the defendants relied on In the Matter of Interim Independent Electoral Commission [2011] eKLR and the decision in Owners of Motor Vessel 'Lillian S' v. Caltex Oil (Kenya) Limited [1989] KLR 1, to highlight the basis of courts’ jurisdiction, which they maintained must flow from the law.
15. The defendants also submitted that the plaintiff’s suit is time-barred on account of the plaintiff having been aware of the fact of adjudication of the suit property since 2011. They contended that the court lacks jurisdiction to hear and determine the suit since the plaintiff filed the suit outside the statutory limitation, considering that the plaintiff has been aware of the alleged fraud since the year 2011. They relied on Jubilee Insurance Company Limited v Nyaema & 4 others (Civil Appeal E124 of 2022) [2024] KEHC 6803 (KLR) (Commercial and Tax) (16 May 2024) (Judgment) to emphasize that time an action founded on fraud must be brought within three years, and that time begins running when the alleged fraud is discovered. They concluded that the matter was filed out of time, irrespective of whether the alleged fraud was discovered in 2011 or 2018 because, in both cases, the three-year limitation period was exceeded. This, they maintained, is against the provisions of section 4 of the limitations of actions Act.
16. Lastly, the defendants maintained that they had demonstrated that their preliminary objection was merited and prayed that the same be allowed.
17. The plaintiff filed written Submissions dated 16th December 2025.They will be considered herein in the determination, as required by procedure and law.
18. In his Reply to the Preliminary Objection, the plaintiff stated that he is not challenging the adjudication process itself. Rather, he is challenging the fraudulent registration of land following the completion of the adjudication process. He faulted the said registration on the following grounds:
a) this registration was done contrary to the existing 1968 judgment the Ndhiwa African District Court (Land Case No. 34 of 1968) which had already determined ownership and ordered equal sharing of the suit property;
b) The criminal conviction in Homabay Chief Magistrates Court Criminal Case No. 1502 of 1993 which found the Defendants guilty of forcible detainer and confirmed the Plaintiff's family's legal occupation since 1914;
c) The principles of natural justice and fair administrative action as guaranteed under Article 47 of the Constitution of Kenya, 2010.
19. The plaintiff further argued that section 26 and 29 of the land adjudication Act relates to objections during the adjudication process and the finality of the adjudication decisions. He emphasized that these provisions do not oust the jurisdiction of this court to address fraud in land registration, illegal demarcation and subdivisions contrary to existing 1court orders, and breach of statutory duty on the part of public officers as well as violation of constitutional rights to property.
20. The plaintiff relied on section 24 of the Land Registration Act as well as the Supreme Court decision in Samuel Kamau Macharia & 2 Others v Kenya Commercial Bank Limited & 2 Others [2012] eKLR to state that this court has inherent jurisdiction to rectify the register where registration was obtained by way of fraud. He further stated that in Samuel Kamau Macharia(supra), the supreme court held that all courts have inherent powers to set aside transactions tainted with illegality irrespective of statutory limitation provisions.
21. On the basis of the above, the Plaintiff concluded that the defendant’s reliance on sections 26 and 29 of the Land Adjudication Act was misplaced, because the said sections do not bar the court from addressing issues relating to fraud, illegality and violation of existing court orders that occurred after adjudication. For this reason, the plaintiff concluded that this ground of objection is not merited.
22. In response to the second ground on limitation of actions, the Plaintiff stated that, the suit is not statutorily barred on account of section 4 (2) of the limitation of actions act and section 3 of the Public Authorities Limitation Act Cap 39 laws of Kenya. The plaintiff maintained that section 4(2) of the limitation of actions act cannot be deemed a bar to his action because the cause of action herein occurred progressively from the year 2011 to 2018 when fraudulent registrations were made by the land registrar and the land adjudication officer. He stated that the suit was filed in 2018, which timeframe he stated to be within the 12 years statutory period.
23. The plaintiff also stated that section 4(2) of the limitation of actions act does not apply because his family has been in continuous occupation of the suit property since the year 1914. He stated that his family’s alleged occupation of the suit property can be confirmed by the 1968 judgment in the 1968 Judgment of Ndhiwa African District Court (Land Case No. 34
of 1968); and the 1993 conviction of Defendants for forcible detainer (Homabay CR 1502/1993). The plaintiff maintained that statutory time limitation does not run against a person who is in occupation of land and relied on relied on Karimi v Njuguna [1974] EA 136 to buttress this position.
24. On the issue of statutory time limitation pursuant to the Public Authorities Limitations Act, the plaintiff maintained that whereas Section 2 of the said Act provides for a three year limitation period for actions against public authorities, there are exceptions to this provision. He maintained that these exceptions apply in the event of fraud pursuant to section 26 of the limitation of actions Act, concealment and continuing cause of action. He relied on Kamau v Waweru [2005] 1 EA 109, to state that where fraud or concealment in in issue, time begins running from the date of the discovery of the fraud. He also cited the case of Samuel Kamau Macharia (supra) to state that limitation provisions do not apply where fraud is established. He therefore concluded that this ground lacs merit and should be dismissed.
25. On the third ground concerning non-disclosure of cause of action, the plaintiff maintained that the plaint disclosed that the land adjudication officer together with the land registrar, between the year 2011 to 2018 fraudulently demarcated the suit land in favour of the defendants against the 1968 court order which had already determined ownership. He also stated that the said officials registered the suit property in the names of the defendants herein, illegally subdivided the original parcel SUBA/KITAWA/2463 into 33smaller parcels and registered them in the names of the defendants. He added that the said officials also issued title deeds for the suit properties in favor of the Defendants.
26. The plaintiff also maintained that the plaint discloses the fact of illegal occupation of the suit land by the defendants, whom he stated to have built their homes on the plaintiff’s parcel of land at night in 1992. As a consequence of this, the plaintiff stated that the defendants were prosecuted and convicted for forcible detainer in Homa Bay criminal case no 1502 of 1993.
27. The plaintiff therefore concluded that his plaint discloses essential facts that demonstrate his legal right to the suit property since the year 1914, being the aforesaid judgment and the 1995 criminal conviction of the defendants. He also maintained that he has demonstrated the defendants’ wrongful acts, being the fraudulent registration and illegal occupation of the suit property as well as the damage he has suffered owing to the defendants’ actions.
28. On the basis of the aforesaid, the plaintiff prayed that this court finds that this ground in unmerited and urged the court to dismiss the same.
29. The plaintiff contended that the defendants’ fourth ground on abuse of court process is unmerited. He relied on the case of Butt v Rent Restriction Tribunal [1982] KLR 417, where the court of appeal defined what amounts to abuse of court process. He argued that his suit does not amount to abuse of court process because he is seeking to enforce a legitimate 1968 judgment which has never been reversed or set aside. The plaintiff equally stated that he is challenging fraudulent registration that occurred after the adjudication process, and which registration happened from the year 2011 to 2018. Finally, he stated that his suit aims at protecting his right to property guaranteed under article 40 of the Constitution.
30. The plaintiff equally dismissed the defendants’ claim that that his suit is res judicata on account of Kisii HC Misc. Application No. 76 of 2011(Jr) and Objections Proceedings No.'S 44-48 Of 2014. He distinguished the case in Kisii HC Misc Application no. 76 of 2011 from the instant suit by stating that the former was a judicial review application seeking to quash the decision of the lower court in Homa Bay magistrate Misc. case no. 64 of 2011. On the contrary, the instant case, he stated, seeks to challenge fraudulent registration made from 2011-2018, the illegal subdivision of the land as well as the issuance of title deeded to the defendant’s contrary to a court order. The plaintiff also stated that the two matters relate to two different causes of action, and as such, his suit is not res judicata.
31. On the issue of Objections Proceedings No.s 44-48 Of 2014, the plaintiff maintained that the same had neither produced nor explained their nature to the court to enable the court to determine whether the same would be a bar to the instant matter or otherwise. As such, the plaintiff concluded that the defendants had not discharged their burden of proof and urged the court to find this ground to be without merit.
32. Lastly, on the last ground that the plaintiff is forum shopping, the plaintiff relied on Owners of Motor Vessel 'Lillian S' v Caltex Oil Kenya Ltd [1989] KLR 1 to submit that forum shopping occurs where a party institutes multiple proceeding in different courts over the same subject matter with a view to obtaining a favourable judgement. He concluded that this ground is baseless because there are no other proceedings pending before courts between the same parties over the same subject matter. He also indicated that the suit land is located in Homa bay and that the parties also reside in Homa Bay. Lastly, the plaintiff maintained that the cause of action arose in Homa Bay and insisted that he had properly invoked this court’s jurisdiction pursuant to article 162 (2) (b) of the Constitution.
33. The plaintiff in his submissions identified six issues for determination, being, whether this Honourable Court has jurisdiction to entertain the present suit; whether the Plaintiff’s suit is barred by limitation of actions; whether the Plaint discloses a cause of action against the Defendants; whether the suit constitutes an abuse of the court process? Whether the doctrine of res judicata applies to bar the present suit; and whether the Plaintiff is guilty of forum shopping.
34. On whether the court has jurisdiction, the plaintiff relied on section 13 of the Environment and Land Court as well as article 162 (2) (b)of the Constitution to invoke this court’s jurisdiction. He submitted that the jurisdiction of the court cannot be ousted by failure to follow administrative procedures. He relied on the case of Owners of Motor Vessel Lilian ‘S’’ supra to buttress this position. The plaintiff also submitted that section 26 and 29 of the Land Adjudication Act cannot oust the jurisdiction of the court as the said provisions only apply to disputes arising during the adjudication process and not to issues that may arise post adjudication.
35. On the issue of time limitation, the plaintiff submitted that section 26 of the limitation of actions act provides that time does not begin running until the alleged fraud is discovered. He submitted that the fraud occurred from 2011 to 2018 and the same was concealed. He maintained that he attempted to file an appeal against the fraudulent registration but the land adjudication officer frustrated his efforts by declining to issue his with a letter for purposes of instituting the said appeal.
36. The plaintiff further submitted that time does not start running for a litigant who has been in continuous occupation of the suit property.
37. On the issue of non-disclosure of the cause action, the plaintiff reiterated that his plaint clearly demonstrates that he has legal right, the same was violated and he suffered damage as a consequence.
38. On the question of the suit herein being res judicata, the plaintiff reiterated that the suit involves a different fresh cause of action which is completely different from the case referred to by the respondents.
39. Lastly, the plaintiff dismissed the issue of forum shopping raised by the defendants. He argued that there are no other suits between the same parties over the same subject matter as the suit herein. He reiterated that the cause of action arose in Homa bay, the suit land is situated in Homa Bay and the defendants reside in Homa bay. On these bases, he denied the allegations on forum shopping.
Issues, analysis and determination
40. The relevant issues that arise for determination in the instant preliminary objection are: whether the preliminary objection has merit; and, who should bear the costs of the application.
41. The principles governing preliminary objections were outlined in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors. (1969) EA 696 where the court held that:
“A Preliminary Objection consists of appoint of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as preliminary point may dispose of the suit. example is 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 that used to be called 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.’
42. In Odeny (Formerly Victor Onyango Odeny) v Attorney General (Petition E415 of 2022) [2024] KEHC 5627 (KLR) (Constitutional and Human Rights) (23 May 2024) (Ruling) the court cited Oraro v Mbaja [2005] 1KLR and observed that:
‘‘19. Furthermore, the observation in the Oraro vs. Mbaja Court stated as follows: [2005] 1 KLR offers significant insight. The court stated as follows:
“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 demurrer. It raises a pure point of law, which is argued on the assumption that all facts pleaded by the opposite side are correct. It cannot be raised if any fact is to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion confuse issues and this improper practice should stop… The principle is abundantly clear. 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…….”
20. From the reading of the above authorities, the essential characteristics of a preliminary objection can be succinctly stated as follows:
i. It must be on a pure point of law, not factual matters.
ii. It is argued on assumption that all facts pleaded by the party against whom that objection is targeted are correct.
iii. If any fact has to be ascertained or if what is sought in the objection is an exercise of judicial discretion, it cannot be raised.
iv. If successful, it must be capable of disposing the suit without the need of proceeding to full trial.
43. This Court has carefully analyzed the plaintiff’s plaint, the preliminary objection filed by the defendants as well as the submissions filed by the parties. the first ground raise by the defendants is that the suit is that the court does not have jurisdiction to hear and determine the plaintiff’s suit on account of sections 26 and 29 of the land adjudication Act.
44. The plaintiff, in argument, dismissed this ground and instead urged that the court has jurisdiction to hear and determine his suit since he is not seeking to challenge the adjudication process itself. Rather, he is seeking to challenged fraudulent dealings that occurred after the adjudication process.
45. Sections 26 and 29 of the Land Adjudication Act provides as follows:
26 Objection to adjudication register
(1) Any person named in or affected by the adjudication register who considers it to be incorrect or incomplete in any respect may, within sixty days of the date upon which the notice of completion of the adjudication register is published, object to the adjudication officer in writing, saying in what respect he considers the adjudication register to be incorrect or incomplete.
(2) The adjudication officer shall consider any objection made to him under subsection (1) of this section, and after such further consultation and inquiries as he thinks fit he shall determine the objection.
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 Cabinet Secretary by—
(a)delivering to the Cabinet Secretary an appeal in writing specifying the grounds of appeal; and
(b)sending a copy of the appeal to the Director of Land Adjudication, and the Cabinet Secretary shall determine the appeal and make such order thereon as he thinks just and the order shall be final.
(2) The Cabinet Secretary 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.
(4)Notwithstanding the provisions of section 38(2) of the Interpretation and General Provisions Act (Cap. 2) or any other written law, the Cabinet Secretary may delegate, by notice in the Gazette, his powers to hear appeals and his duties and functions under this section to any public office by name, or to the person for the time being holding any public office specified in such notice, and the determination, order and acts of any such public officer shall be deemed for all purposes to be that of the Cabinet Secretary.
46. Although the plaintiff maintained that this court has jurisdiction to heart and determine his matter by dint of article 162 (2) (b) of the Constitution as well as section 13 of the Environment and Land Court Act, it is my humble view that the plaintiff has not demonstrated that he followed the procedure stipulated in section 26 of the Land Adjudication Act. The plaintiff only mentioned in his submissions that he could not appeal the outcome of the adjudication process since the land adjudicator refused to write him a letter which was necessary for pursuing an appeal. This information was not expressed in the plaint. Since submissions are not pleadings, the same argument cannot succeed, especially when it is introduced during submissions (see Mwangi Stephen Muriithi v Daniel Toroitich Arap Moi & another [2014] KECA 273 (KLR).
47. In any event from the time the decision on the objection was concluded to the time he now files this suit, it is so many years passed that it does not make since at all why if indeed he wished to appeal the decision he never took the steps to even move the court by way of judicial review to compel the said Adjudication Officer to act. Moreover, an appeal from the decision of the Land Adjudication Officer to the Minister lies for a party as of right. There is nowhere the Plaintiff demonstrates that he execrcised that right. He cannot be heard to go around it now, almost 14 years from the year 2011 as pleaded in paragraph 33 of the Plaint, move the Court, albeit unprocedurally.
48. It is the court’s finding that section 26 and 29 of the Land Adjudication Act presents the relief which a litigant who is dissatisfied by the adjudication process can receive before he approaches the court. Should the plaintiff have exhausted this remedy before approaching the court as argued by the plaintiff? Yes. The doctrine of exhaustion of the processes, remedies or reliefs as contained in Section 9 of the Fair Administrative Actions Act (2015) is mandatory. Only exceptions can be made, and even then, with leave of the Court. That has not been done in relation to the instant case. The Section provides that:
which provides that: -
“ (1) Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.
(2) The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
(3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under subsection (1).
(4) Notwithstanding subsection (3), the High Court or a subordinate Court may,in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.”
49. In Mumba & 7 others (Sued on their own behalf and on behalf of predecessors and or successors in title in their capacities as the Registered Trustees of Kenya Ports Authority Pensions) v Munyao & 148 others (Suing on their own behalf and on behalf of the plaintiffs and other members/beneficiaries of the Kenya Ports Authority Pensions Scheme)) [2019] KESC 83 (KLR), the supreme court held as hereunder concerning exhaustion of remedies:
‘‘116. The foregoing verdict also finds support in an adage principle in administrative law of “Exhaustion of Administrative Remedies” and from the jurisprudence emanating from this court and the lower Courts, which has been restated with notoriety to the effect that, where there exists an alternative method of dispute resolution established by legislation, the courts must exercise restraint in exercising their Jurisdiction conferred by the constitution and must give deference to the dispute resolution bodies established by statutes with the mandate to deal with such specific disputes in the first instance. see Alphonse Mwangemi Munga & 10 Others v African Safari Club Ltd [2008] eKLR Narok County Council case v Trans Mara County Council [2000] 1 EA 161 Kones vs Republic & Another ex parte Kimani wa Nyoike & 4 Others (2008)3 KLR (EP); Speaker of the National Assembly vs Njenga Karume (2008)1 KLR (EP) 425, Francis Mutuku vs Wiper Democratic Movement - Kenya & others [2015] eKLR David Ochieng Babu v Lorna Achieng Ochieng & 2 others [2017] eKLR among other cases not referred to. The Court of Appeal in Geoffrey Muthinja & another vs Emanuel Muguna Henry & 1756 others [2015] eKLR held that:
“We see this as the crux of the matter in this and similar cases. It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanism in place for resolution outside of courts. This accords with article 159 of the constitution which commands Courts to encourage alternative means of dispute resolution.”
117.Of precise relevance to this case is Bethwell Allan Omondi Okal v Telkom (K) Ltd (Founder) & 9 others [2017] eKLR. In that case, the appellants who were former employees of Telkom (K) Ltd felt aggrieved and discriminated against following the implementation of what was referred to as “Trivial Pension Payout”, by the Authority which they accused of fraud, corruption and mismanagement and for paying some categories of retirees less increments in their pension payments than others. The trial court made a finding that since the complaints were against the Authority, that there were other statutory inbuilt administrative dispute resolution mechanisms under the RBA Act that ought to have been followed before recourse to the High Court. He opined that any dispute should have been referred to arbitration in the first instance pursuant to Rule 36 of the Consolidated Deed of Trust and Rules, made under the RBA Act and that if the appellant was dissatisfied with the decision of the arbitrator, then he could appeal to the Retirement Benefits Appeals Tribunal established under the RBA Act. On Appeal, the Court of Appeal dismissed the appeal stating that:
“The Appellant might want to argue that he has a constitutional right of access to justice, and we agree that he does, but the High Court and this Court have pronounced themselves many times to the effect that a party must first exhaust the other processes availed by other statutory dispute resolution organs, which are by law established, before moving to the High court by way of constitutional petitions. See International Centre for Policy and Conflict & 4 others vs The Hon. Uhuru Kenyatta and others, Petition No 552 of 2012, and Speaker of National Assembly v Njenga Karume [2008] 1KLR 425.We hold that if indeed the appellant had any dispute with the RBA, he ought to have followed the route prescribed by the RBA, before proceeding to the High Court. We hold like the court below, and for the reasons we have given, that the appellant’s petition lacked merit and was for dismissal.”
118.In the pursuit of such sound legal principles, it is our disposition that disputes disguised and pleaded with the erroneous intention of attracting the jurisdiction of superior courts is not a substitute for known legal procedures. Even where superior courts had jurisdiction to determine profound questions of law, first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi-judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute.
119.Such a deferred jurisdiction and the postponement of judicial intervention and reliefs until the mandated statutory or constitutional bodies take action rests, not alone on the disinclination of the judiciary to interfere with the exercise of the statutory or any administrative powers, but on the fact of a legal presumption that no harm can result if the decision maker acts upon a claim or grievance. Such formulation underlies the analogous cases, frequently cited for the exhaustion doctrine, in which the court refuses to enjoin an administrative official from performing his statutory duties on the ground that until he has acted the complainant can show no more than an apprehension that he will perform his duty wrongly, a fear that courts will not allay. Such cases may be expressed in the formula that judicial intervention is premature in the absence of administrative action.
120.On the foregoing basis, we are in agreement with the submissions of the learned counsel for the appellants, and further fault the learned Judges of Appeal and hold that the in-built review and appellate mechanisms established under sections 46 and 48 respectively of the RBA Act should have been exhausted first by the respondents before any other recourse is taken to the superior courts. In our view, section 46 of the RBA Act therefore vests original jurisdiction upon the CEO; thus, the proper forum for the respondents to launch their case was to first write to the CEO then if dissatisfied with the decision of the CEO appeal to the Retirement Benefits Appeals Tribunal.
50. This Court, as stated at paragraph 48, appreciates that the doctrine of exhaustion of remedies has some exceptions as was held in Othim v Kilimani Hospital Limited & 4 others (Constitutional Petition E026 of 2025) [2026] KEHC 1911 (KLR) (19 February 2026) (Ruling) where it was held:
‘‘60. As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.
61. The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.’’
As was held in Othim v Kilimani Hospital Limited (Supra) this court finds that the plaintiff herein did not plead for the exception of the remedies provided under sections 26 and 29 of the Land Adjudication Act. As such, the ground that the court does not have jurisdiction on account of non-exhaustion of the remedies provided in the above stated sections succeeds. In other words, the plaintiff is trying to invoke a process which he did not exhaust as per the processes laid down in the two Sections of the Land Adjudication Act. The suit is incompetent and wrongly before the court.
51. The defendants also stated that the plaintiff’s suit is time barred since the same was not brought within three years after the discovery of the alleged fraud. The plaintiff in his plaint stated that the alleged fraud was committed from the year 2011 to 2018 but never specified the specific time when he discovered the fraud. However, at paragraph 33 he stated that the 24th Defendant’s father colluded with the Land Adjudication Officer to register the land in Valentinus’ name. Further, paragraph 43 he Plaintiff pleaded that there was a Criminal Case No. 1502 of 2019 while also at paragraph 44 he alluded to an eviction case filed in 2011 by Samwel Kiabwe Opere, being Homabay Misc. 64 of 2011 and Judicial Review No. 76 of 2011. He then pleaded fraud at paragraphs 46 where he alleged it took place between 2011 and 2018, at para 49 where he alleged it took place in 2018 besides paragraphs 50 and 51 of the Plaint. In his submissions, the plaintiff stated that the fraud was discovered sometimes in 2018.
52. Section 4(2) provides that actions founded on tort must be brought within three years. The plaintiff had an obligation of specifying when he discovered the alleged fraud. He did not precisely do it. But the totality of his pleadings show that it took place between 2011 and 2018. What then dis the Plaintiff do in that regard during all that period. He never sued the Defendants. He discovered the fraud but kept quiet about it during those periods. And even if he did not discover it, with the pleadings on a number of cases having been takin place during that period, namely Homabay Misc. 64 of 2011, and JR No. 76 of 2011 it is clear to me that the Plaintiff could have reasonably and with due diligence discovered that fraud during that time and moved the court within the time provided by the law. He did not. Further, even if the same were discovered in 2018, the instant suit was filed on 12th June 2025. That was about seven years afterwards. There is no explanation for the said delay. The Plaintiff never sought extension in terms of Section 26(1) of the Limitation of Actions Act, if at all it could have been available for him to do so, which this Court doubts. But of importance, he did not at all demonstrate, as per the provision, that time did not start running for him from when he could have reasonably discovered the fraud, which was from 2011, or in between then and 2018. For this reason, the court finds that the suit is time barred and the ground on time limitation equally succeeds.
53. The ground that the suit does not disclose a reasonable cause of action against the 1st -28th defendants fails for the reason that the cause of action herein is disclosed: it is fraud, and it has been specifically pleaded. Save for the reason of limitation of time that has been taken up against that ground and has succeeded, this suit would have been litigated on that ground or claim. In J.A.O. v Homepack Caterers ltd & 2 others [2004] Eklr, a reasonable cause of action was defined as an action with some chance of success when only the allegations in the plaint are considered.
54. The ground on abuse of court process does not succeed because the defendants have not explained how the suit amounts the court process.
55. Equally, the ground that the suit is res judicata fails because the court is called upon the review evidence to determine whether the suit is indeed res judicata.
56. Lastly, the defendants’ contention that the filing of the suit amounts to forum shopping does not succeed because it has not been demonstrated how that has happened.
57. The upshot of the foregoing is that the defendants’ preliminary objection succeeds on account of grounds 1 and 2 as outlined in the notice of preliminary objection. Thus, the suit is dismissed with costs but only to the 1st to 28th Defendants.
58. Orders accordingly.
Ruling dated, signed and delivered via the Teams Platform this 30th day of April 2026
HON. DR. IUR NYAGAKA
JUDGE
In the presence of,
Ms. Odhiambo Advocate for Mwamu Advocates for the Plaintiff
59. Mulisa Advocate for the 1st to 28th Defendants
60. No appearance for the 29th and 30th Defendants