Hassan Mwachamago Ali & 205 Others v County Government of Mombasa & 5 Others; National Land Commission (Interested Party)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notice of Preliminary Objection dated 23rd July 2025 meets the threshold of a proper preliminary objection
- 2.Whether the Petition offends the doctrine of constitutional avoidance
- 3.Whether the existence of an alternative remedy, if any, is adequate and effective in the circumstances of this case
- 4.What orders ought to follow
Key legal issues
#Whether the objection met the threshold of a proper preliminary objection
It did; the objection that the Petition offends constitutional avoidance is a pure point of law requiring no factual ascertainment.
Applying the Mukisa Biscuit test, the court found the objection requires only examination of the pleadings to ask whether the remedies sought could be pursued elsewhere, with no contested fact to resolve, so it is properly before the court.
Whether the Petition offends the doctrine of constitutional avoidance
No, not at this preliminary stage; the pleadings raise a substantive constitutional dimension concerning a State-administered settlement process and institutional inaction.
Classification follows the gravamen, not the caption. The Petition challenges the legality, equality and procedural fairness of a State-administered settlement process and the failure of public bodies to act on an NLC recommendation, which engages constitutional jurisdiction and defeats summary termination.
Whether the alternative remedies pointed to are adequate and effective
A triable question exists as to their adequacy; the NLC's unimplemented 2017 recommendation renders the suggested remedies potentially futile.
The NLC, the body mandated under Article 67(2)(e) and Section 15 of the NLC Act to investigate historical land injustices, recommended nullification in January 2017 but nothing was done for nearly a decade. Directing petitioners back to the same bodies would send them in a circle with no exit.
Legal principles established
#- Constitutional avoidance is a rule of prudence, not a jurisdictional bar; it cannot be deployed where the alternative remedy is illusory or rendered no remedy at all by institutional inaction.
- A remedy that exists only on paper, unexercised for years despite a clear recommendation by the constitutionally mandated body, is not an adequate alternative remedy.
Court orders
#- 1.The Notice of Preliminary Objection dated 23rd July 2025 dismissed
- 2.Any party wishing to file supplementary documents to do so within 14 days from the date of the Ruling
- 3.Parties to file their trial bundles within 7 days of the supplementary documents order
- 4.Mention on 23rd November 2026 to confirm compliance and fix a Hearing date
- 5.Costs of the Notice of Preliminary Objection to be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 23, 165 and 258 of the Constitution of Kenya, 2010
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The doctrine is a rule of prudence, not a jurisdictional bar; it counsels restraint, but restraint is not abdication.
A remedy that exists only on paper, unexercised for nine years despite a clear recommendation by the very Commission constitutionally mandated to act, is not an adequate alternative remedy in any meaningful sense; it is a door marked open that has, in practice, remained locked.
For the reasons set out above, the Notice of Preliminary Objection dated 23rd July 2025 fails and is hereby dismissed.
Costs of the Notice of Preliminary Objection shall be in the cause.
Substance, not nomenclature, governs.
Issues in the judgment
#Paragraph numbering is duplicated and out of sequence in the analysis and conclusion.
Order list omits letter (e), jumping from (d) to (f).
Affidavit name appears as 'assan Mwachamago Ali' in one passage, inconsistent with 'Hassan Mwachamago Ali'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hassan Mwachamago Ali & 205 Others v County Government of Mombasa & 5 Others; National Land Commission (Interested Party)", Case Analysis (2026). ELC Constitutional Petition No. E004 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5792/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.