Kisini (Suing as an administrator of the Estate of Gideon Kisini Musau - Deceased for the benefit of the Estate and its beneficiaries and on his own behalf as a beneficiary of the Estate) & 2 others v Muasya & 3 others

b. The plaintis’ suit herein be struck out with costs forthwith as this court lacks the jurisdiction to hear and determine this matter in light of section 29 of the Land Adjudication Act, CAP. 284. 2. The motion is based on the grounds listed on the face thereof and on the supporting adavit of the 1st defendant, sworn on the instant date. Before proceeding with the summary, it is necessary to mention that it is unfortunate that the grounds and supporting adavit delved into submissions and cited judicial precedents, which this court nds inapt. 3. Succinctly, the 1st defendant makes several statements. That the court cannot review or overturn decisions made by the Minister under the Land Adjudication Act, as such decisions are nal. In this case, the land dispute was already resolved by the Minister’s Appeals Committee in 2018, with the plaintis involved in the process and acknowledging the outcome. The plaintis’ attempt to challenge this decision through the current suit is improper, as the only valid way to contest the Minister's decision is judicial review, which they did not pursue. She contends that this suit attempts to bypass the legally established process. 4. In opposition, the plaintis led the PO alluded to earlier and raise the following points of law: - 5. a. That the application is res judicata in view of the ruling of this honourable Court delivered herein on 30 July 2021. b. That the said application is in gross breach of the mandatory provisions of Section 7 of the Civil Procedure Act, Cap 21 Laws of Kenya. c. That, in eect, the application is wrongfully seeking that this honourable Court sit on appeal on its own said ruling, or on a review of the ruling, when the court has not been moved accordingly. d. That no appeal was led by the said defendants against the said ruling, and no review was sought by any of the said defendants as and when stipulated in law, and in any event, both processes are now time-barred. e. That following the said ruling, the suit has been heard on various applications by this honourable court, dierently constituted, and is now partly heard on the plaintis' evidence. f. That by dint of the foregoing, the application is bad in law for being scandalous, frivolous or vexatious, and otherwise an abuse of the process of the court, merely seeking to delay the fair trial of the suit. g. That on the basis of the foregoing, the application ought to be struck out with costs to the plaintis. Apart from the PO, the plaintis challenge the motion through the replying adavit of the 2nd plainti sworn on 4 February 2026. He makes numerous assertions. Briey, he largely reiterates the points of law in the PO as factual matters. Additionally, he avers the defendants led a notice of appeal against the ruling of 30 July 2021 but never followed through with the actual appeal. The purported appeal to the minister was invalid because it was led more than 13 years after the land adjudication ocer's (LAO) decision, well beyond the permitted 60-day limit. The minister’s decision was ultra vires. The plaintis were never notied of the minister’s decision and only obtained a copy in 2018 after signicant eort. This lack of notication prevented the plaintis from challenging the decision as permitted by law; hence this suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5907/eng@2026-09-29 2

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6. In rejoinder, the 1st defendant led a supplementary adavit sworn on 25 February 2026. She made several averments, some of which dig into submissions that this Court considers improper. Concisely, she states that this court, in its decision of 30 July 2021, declined to uphold the POs because they raised issues of fact that required the court to examine evidence. As a result, the POs did not meet the legal requirements. 7. This court directed the parties to canvass the motion through comprehensive written submissions. In compliance with the court’s directions, the 1st defendant’s law rm on record, Ms. AndereOtieno & Co. Advocates, led written submissions dated 23 March 2026, which frame the issues for determination as: i) whether this court has jurisdiction to hear this matter contrary to Section 29 of the Land Adjudication Act, CAP. 284, and ii) who should bear costs. 8. In regard to the plaintis, their law rm on record, Ms. Florence Mwangangi & Co. Advocates, led written submissions dated 24 April 2026, in which they identify the following issues for determination: i) whether the motion is res judicata, and ii) whether this honourable court has jurisdiction to hear and determine the suit herein. Accordingly, having carefully considered the motion, grounds, adavits, annexures, rival submissions, the legal framework, and prevailing jurisprudence, including those relied upon by the counsel, this court adopts the issues as framed by the plaintis, which are inter alia; a. Whether the motion is res judicata; and b. Whether this honourable court has jurisdiction to hear and determine the suit herein. 9. As a preliminary issue, it is important to note that, in appreciation of the fact that the points of law in the PO raise factual matters and do not meet the legal threshold, the plaintis addressed them in the replying adavit. We now proceed to deal with the substantive issues cumulatively. 10. Regarding the rst limb, the legal framework is found in our Section 7 of the Civil Procedure Act, in the following terms: “ No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and nally decided by such Court.” 11. Concerning the principles of res judicata and their conjunctive application, the Court of Appeal decision in Independent Electoral and Boundaries Commission v Kiai & 5 others [2017] KECA 477 (KLR) held; “ 74. Thus, for the bar of res judicata to be eectively raised and upheld on account of a former suit, the following elements must all be satised, as they are rendered not in disjunctive, but conjunctive terms; (a) The suit or issue was directly and substantially in issue in the former suit. (b) That former suit was between the same parties or parties under whom they or any of them claim. (c) Those parties were litigating under the same title. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5907/eng@2026-09-29 3

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12. (d) The issue was heard and nally determined in the former suit. (e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.” In the decision of 31 July 2021, this court stated as follows: “ 20. To determine whether this suit is res judicata or not, this court has to consider the proceedings that were before the Minister, and the decision of the Minister thereof. Those proceedings could only be brought to the attention of this court by way of an Application and not a Preliminary Objection. 21. Considering that a preliminary point only raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct, and in view of the fact that a preliminary point cannot succeed if any fact has to be ascertained or if what is sought is the exercise of judicial discretion, I decline to allow the two Preliminary Objections.” 13. Guided by law and jurisprudence, it is evident that this decision that this court did not hear and determine the issue of this court’s jurisdiction on the merits, as the applicants therein approached the court incorrectly. They have now properly initiated the motion and tendered factual evidence, thereby enabling this court to determine whether it has jurisdiction to hear the matter. Accordingly, this court nds that this application is not res judicata and nds that the present motion is properly before it. 14. Respecting the second limb, and as correctly submitted by the 1st defendant, it is now settled law that if a court lacks jurisdiction, it must lay down its tools. Justice Nyarangi, JA (as he then was), in the Court of Appeal decision of Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) held thus: “ 30 … I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:” 15. In agreement with the 1st defendant, the court intervenes in exceptional circumstances in matters concerning parcels of land that are the subject of adjudication. For clarity, the statutory procedures governing the suit land prior to the issuance of the title deed nos. LR.nos. Machakos Nguluni 2803, 2804, and 2805 (“suit land”) were prescribed under the Land Adjudication Act. The process set out therein is comprehensive, conducted in public and permits the parties to present their grievances at various stages. 16. Typically, adjudicative proceedings are commenced before the land adjudication committee (LAC). Should a party be dissatised with the outcome, they may escalate the matter to the arbitration board (AB). If the grievance remains unresolved, the party may petition the land adjudication ocer (LAO) https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5907/eng@2026-09-29 4

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before appealing to the Minister. Refer to Sections 20, 21, 22, 26, and 29(1) and (2) of the Land Adjudication Act. 17. Under the Land Adjudication Act, the ultimate authority for resolving land ownership or title disputes is the minister, whose decision, according to Section 29(1) of the Act, is conclusive. Furthermore, it is only in extraordinary circumstances, as provided for in Section 30, that a party may commence proceedings before the court. 18. Additionally, Section 13 of the Environment and Land Court Act No. 19 of 2011 does not override the provisions of Section 29(1)(b) of the Land Adjudication Act, and courts have consistently held that the ELC can only interfere with the nality of the minister’s decision in two instances: by invoking the court’s judicial review jurisdiction and where a new cause of action is being raised. In the Court of Appeal decision of Amarnath (Suing on Behalf of the Estate of the Late Amarnath Gupta) v Kazungu & 2 others [2023] KECA 1280 (KLR), the court, in arming a decision of the ELC, held: “ The process of land adjudication had eectively come to its logical conclusion and could not be re-opened otherwise than in the manner contemplated by the law. In the circumstances, the ELC properly struck out the Appellant’s suit. The Appellant did not have any separate cause of action against the 1st Respondent other than the matters which were adjudicated upon and determined by the Ministerial Appeals Committee during the appeal to the decision of the objection proceedings. That decision was nal.” 19. Further, the Court of Appeal in Nicholas Njeru v Attorney General & 8 others [2013] KECA 217 (KLR), held as follows: “ However we do not entirely agree with the learned Judge’s observation that the court had no jurisdiction to grant a declaratory order… We agree with the trial Judge that during the various proceedings the issues in this appeal were perhaps thrashed almost to the pulp and the dispute over which clan owned the suit property had long been determined. We will also look at what the appellants referred as ‘the new cause of action.” 20. It is apparent from these proceedings that the plaintis are not invoking the court’s special jurisdiction of judicial review under the Civil Procedure Rules, the Fair Administrative Actions Act, or the Constitution of 2010, as they have led a plaint dated 27 November 2020. Consequently, the question that this court will consider when examining the plaint and the minister’s decision is whether the plaintis’ suit presents a new cause of action distinct from those previously considered by the minister. 21. From the record, appeal no. 345 of 2008 was lodged before the minister by Josephat Mulwa and Katua Muasya, sons of James Muasya Malile(deceased), against the 1st and 2nd plaintis (the Kisini family). From the proceedings, it is clear that the subject matter was whether the appellants’ brother, James Muasya Malile, legally sold land parcel no. 797 to the respondents’ family. The court heard the matter on the merits, including the agreement's legality and ownership of the land. In its decision and following the subdivision of the land parcel no. 797, which was the disputed land, the Kisini family were given land parcel no. 2805, whereas land parcel no. 2803 and 2805 were allocated to the deceased’s beneciaries (some of the defendants herein). These are largely the same factual issues raised in the plaint, and it is apparent from the plaint that some of the particulars the plaintis seek are judicial review orders, which are untenable in these proceedings. 22. For the reasons set out above, this court nds that it lacks jurisdiction to entertain this matter. The application dated 4 December 2025 is found merited. The preliminary objection dated 27 January https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5907/eng@2026-09-29 5

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2026 is found not merited. The plaintis’ suit is struck out with costs to the defendants. This le is hereby marked as closed. Orders accordingly. DELIVERED AND DATED AT MACHAKOS THIS 29TH DAY OF SEPTEMBER, 2026. HON. A. Y. KOROSS JUDGE 29.09.2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform; In the presence of; Ms. Kanja Court Assistant. Miss Mwangangi for the plainti/respondent. Mr. Andere for 1st defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5907/eng@2026-09-29 6

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