1.This ruling is in respect of a Preliminary objection dated 3rd February 2022 by the 5th defendant’s on the following grounds;
2.Counsel for the 5th defendant submitted that the decision by the Ministerial Panel can only be challenged by way of judicial review process and therefore the petition is an abuse of the court process which is an attempt to circumvent the findings of the Ministerial Panel. Counsel urged the court to allow the preliminary objection as prayed.
3.Counsel for the petitioners submitted that this court has the jurisdiction to handle this matter by virtue of Article 162 (2) of the Constitution of Kenya and that the preliminary objection arises out of the interpretation of the ruling by Hon. Justice Olola relating to the Petitioners’ Application dated 27th July 2020 that the issues raised in the petition can only be dealt with in a Judicial review as opposed to a petition.
4.Counsel further submitted that the petition raises constitutional issues which the defendants have violated and cited the case of Mumo Matemu v Trusted Society of Human Rights alliance & 5 others  eKLR and South African Case of Fredricks & Others V MEC for Education and Training, Eastern Cape & Others.
ANALYSIS AND DETERMINATION
5.The issue for determination is whether the preliminary objection has merit as per the grounds that Section 29 of the Land Adjudication Act which provides that the verdict of the Ministerial Panel is final unless reviewed vide a Judicial Review process.
6.This matter came up for hearing of the Petitioners’ Notice of Motion dated 27th July 2020 whereby the applicant sought for an order of injunction restraining the respondents from interfering with the suit land.
7.Vide a ruling dated 30th April 2021 the court held at paragraph 15 which is relevant to this application that:
8.The court proceeded to dismiss the Petitioner’s application for injunction.
9.The issues that the Petitioner is raising in the Petition emanate for the decision of the Ministerial Panel which heard the matter and determined it. If the Petitioners were aggrieved, then they should have filed a Judicial Review to challenge the process if there was any impropriety.
10.Section 29 of the Land Adjudication Act sets out the process and procedure that appeals before the Minister should take and provides thus: -
11.In the case of Tsuwi Mkare Tsuwi v Alex Nzaro Chai  eKLR the court held that:
12.I agree with the Olola J that this court cannot reopen the case that was finalized by the Ministerial Panel and re- litigate afresh. The upshot is that the 5th Respondent’s preliminary objection has merit and the petition is struck out with costs to the respondent.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 19TH DAY OF APRIL, 2023.M.A. ODENYJUDGEMalindi ELC Petition No. 34 of 2019 - Ruling Page 3