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ELCDismissedPetition dated 1st October, 2024 (Makueni ELC)

Kiungua v Kimilu & 4 others (Environment and Land Petition E005 of 2024) [2025] KEELC 5465 (KLR)

Environment and Land Court
23 July 2025
1,105 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Makueni dismissed a landowner's attempt to throw out a constitutional land rights petition, and ordered them to pay the petitioner's legal costs.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Makueni (Obaga J) determines a preliminary objection dated 3rd March 2025 raised by the 1st Respondent against a constitutional petition filed on 1st October 2024. The petition sought declarations that the Petitioner's rights under Articles 47, 50(1) and 40 of the Constitution were violated, an order of certiorari to quash the decision of the Cabinet Secretary for Lands delivered through the Deputy County Commissioner, Mbooni East, in appeal case number 55 of 2001, revocation of the 1st Respondent's registration as proprietor of title number Kisau/Nduluku/6X5, an order that the title belongs to the Petitioner, registration of the Petitioner's interest, and costs. The 1st Respondent raised three grounds: non-justiciability under Article 159, res judicata by reference to an earlier judicial review application, and breach of Sections 29 and 30 of the Land Adjudication Act. The court applied the classic definition of a preliminary objection in Mukisa Biscuit, found that counsel had confused non-justiciability with the exhaustion doctrine, held that allegations of constitutional rights violations squarely fall within the court's jurisdiction, and found no res judicata because the prior application was dismissed without a determination on the merits. On Sections 29 and 30, the court held the adjudication process had been completed and titles issued, so the statutory bar did not apply. The preliminary objection was dismissed with costs to the Petitioner; the petition itself proceeds to hearing.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the petition offends the doctrine of non-justiciability under Article 159 of the Constitution
  2. 2.Whether the petition is res judicata having been dealt with in Makueni ELC Judicial Review Application No. E001 of 2023
  3. 3.Whether the petition offends Sections 29 and 30 of the Land Adjudication Act Cap 284 and amounts to an abuse of the process of the court

Key legal issues

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01

Non-justiciability versus exhaustion of statutory remedies

Holding

Counsel for the 1st Respondent confused non-justiciability with the exhaustion principle; a constitutional rights petition is justiciable

Reasoning

The court distinguished non-justiciability, which concerns matters unsuitable for judicial determination and better left to other branches of government, from the exhaustion doctrine requiring use of statutory mechanisms first. Because the Petitioner alleged violations of Articles 47, 50(1) and 40, the matter fell within the court's jurisdiction and non-justiciability had no application.

p. 3
02

Res judicata

Holding

The petition is not res judicata because the prior judicial review application was dismissed without determination on the merits

Reasoning

The Petitioner's earlier application in Judicial Review No. E001 of 2021 sought extension of time to bring judicial review proceedings against the Minister's decision and was dismissed. Since the Petitioner's issues were never addressed on the merits, the elements of res judicata were not satisfied.

p. 3
03

Sections 29 and 30 of the Land Adjudication Act

Holding

The petition does not offend these sections; the adjudication process was completed and titles issued, so the bar in Section 30 no longer applies

Reasoning

The court found that Section 29 concerns appeals under the Act and alteration of the register by the Chief Land Registrar, processes already completed. Section 30 stays suits during an ongoing adjudication, but here adjudication had been completed and titles issued, making the objection untenable. The court also noted the 1st Respondent did not specify how the sections were offended.

p. 3

Legal principles established

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  • A preliminary objection consists of a point of law which has been pleaded or arises by clear implication out of pleadings and which may dispose of the suit
  • Alleged violation of constitutional rights falls squarely within the jurisdiction of the court and the doctrine of non-justiciability cannot be invoked
  • A petition is not res judicata where the prior application was dismissed without a determination on the merits

Court orders

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  1. 1.The preliminary objection dated 3rd March, 2025 by the 1st Respondent is dismissed
  2. 2.Costs of the preliminary objection to the Petitioner

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 47 and Article 50(1) of the Constitution of Kenya 2010 (constitutional petition for violation of rights), Article 159

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

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
p. 3Definition of a preliminary objection
This is a matter which squarely falls within the jurisdiction of the court and there is no way the doctrine of non-justiciability can be invoked here
p. 3Justiciability of constitutional rights claims
I therefore find that the preliminary objection by the 1st Respondent is devoid of merit. The same is dismissed with costs to the Petitioner.
p. 3Final orders - dismissal of preliminary objection with costs

Issues in the judgment

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minor

Internal inconsistency in the number of the prior judicial review application: the preliminary objection refers to 'Makueni ELC Judicial Review Application No. E001 of 2023' while the submissions and holding refer to 'ELC Judicial Review No. E001 of 2021'/'No. E001 of 2021'

minor

The date of the Cabinet Secretary's decision is inconsistently stated in the reliefs as '9th November, 2018 in appeal case number 55 of 2001'

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kiungua v Kimilu & 4 others (Environment and Land Petition E005 of 2024) [2025] KEELC 5465 (KLR)", Case Analysis (2025). Petition dated 1st October, 2024 (Makueni ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5465/eng@2025-07-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.