1.By a plaint dated 10th May, 2021 and filed on 17th May 2021, the appellant herein instituted a suit in the lower court to wit Kabarnet SPMC ELC Case No.13 of 2021 seeking judgment against the respondent for a declaration that he, the appellant, is the owner of the parcels of land known as L.R Nos. 314, 315 and 316 (suit lands) within Sagasak Adjudication Section in Baringo county measuring approximately 20 acres; an eviction order against the defendant, its agents and/or representatives from the suit lands; costs of the suit and any other or further relief the court may deem fit and just to grant.
2.Vide paragraph three (3) of the plaint, the appellant pleaded that at all times material to the suit, he was the owner of the suit lands having inherited them from his father, mzee Ruto Cherutich (deceased). The appellant accused the respondent of trespassing into the suit lands thereby causing him and his family great loss and damage.
3.The respondent filed a statement of defence through which it denied the allegations levelled against it and inter alia contended that the appellant’s suit is bad in law, fatally defective and mala fides. The respondent intimated its intention to raise a preliminary objection challenging the appellant’s suit on those grounds.
4.In keeping with its notified intention of challenging the appellant’s suit, the respondent filed the notice of preliminary objection dated 30th November, 2011 challenging the appellant’s suit on the grounds that it offended the provisions of Sections 21, 22, 26 and 29 of the Land Adjudication Act, Cap 284 laws of Kenya; that the suit is frivolous; vexatious, fatally defective and an abuse of the process of the court.
5.Upon hearing and considering the cases/submissions urged by the parties in respect of the preliminary objection, the learned trial magistrate inter alia held:-
6.Dissatisfied with the decision of the learned trial magistrate, the appellant appealed to this court on four (4) grounds which can be reduced to one broad ground namely, the learned trial magistrate erred by upholding the preliminary objection.
7.Pursuant to directions given on 28th February 2023, to the effect that the appeal be disposed off by way of written submissions, parties filed submissions which I have read and considered.
8.The sole issue arising from the appeal and the submissions is whether the learned trial magistrate erred by upholding the respondent’s preliminary objection.
9.Concerning that issue, the appellant has submitted that the issues raised in the preliminary objection were not pure issues of law. Terming the issues raised in the preliminary objection mere legal technicalities, the appellant claims that the learned trial magistrate failed to appreciate that he had obtained the consent required under Section 30(1) and (2) of the Land Adjudication Act before instituting the suit.
10.In reply, the respondent submits that the appellant improperly invoked the jurisdiction of the court by filing a suit in court before exhausting the dispute resolution mechanisms provided for under the Land Adjudication Act. In that regard reliance is placed on the case of Geoffrey Muthinja & another vs. Samuel Muguna Henry & 1756 others (2015)e KLR where it was held:-
11.The appellant is also said to have approached the court through a mechanism which is not contemplated under the Land Adjudication Act, a civil suit (plaint) as opposed to an application for judicial review.
Analysis and determination
12.As pointed out above, the appellant instituted this suit seeking to be declared the lawful owner of the parcels of land known as L.R Nos. 314, 315 and 316 (suit lands) within Sagasak Adjudication Section in Baringo county measuring approximately 20 acres and an eviction order against the respondent.
13.It is not in dispute or even controverted that the appellant obtained the consent required under Section 30 of Land Adjudication Act, Cap 84 Laws of Kenya, before instituting the suit hereto; what is in issue is whether, in the circumstances of this case, where the dispute concerns ownership of land that has been subject of the process of ascertaining rights over it under the Land adjudication Act, the court was properly seized of the dispute brought before it.
14.Faced with an appeal arises from circumstances similar to those leading to the instant appeal, in the case of David Mwithirwa M’Ibaya v. Geoffrey Kibaara M’Ibaya (2021) e KLR Cherono J held:-
15.A similar holding was made in the case of Daniel Musili Nyeki & 49 others vs. Cabinet Secretary of Lands & Settlement & another; Benard Malonza Musya & 30 Others (Interested Parties) (2021) e KLR where the court inter alia held:-
16.In Bhaijee & another v Nondi & another (Civil Appeal 139 of 2019)  KECA 119 (KLR) (18 February 2022) (Judgment), it was held:-The rationale for Section 30 of the Land Adjudication Act was that there was an elaborate process that was laid down by the Land Adjudication Act, on how to determine which persons were, and the extent to which, they were entitled to interests in the land under adjudication. It was therefore necessary that section 30 was first employed before resort was made to the courts, and also shielded from unnecessary and unjustified abuses. Where a dispute resolution mechanism existed outside courts, it had to be exhausted before the jurisdiction of the courts was invoked.”
17.In applying the principles enunciated in the cases cited above to the circumstances of this case where the suit was not dismissed for failure to obtain the consent required under Section 30 of the Land Adjudication Act but for failure to exhaust the dispute resolution mechanism provided for in the Land Adjudication Act; in particular, on account of the appellant’s failure to challenge the decision of the Land Adjudication Officer if aggrieved by it, I find and hold that the learned trial magistrate did not err by upholding the preliminary objection on account of the appellant’s failure to exhaust the dispute resolution mechanism provided under the Land Adjudication Act. It is the considering view of this court that the action of the appellant of filing a suit to raise issues that had being determined by the Land Adjudication Officer was tantamount to appealing or challenging the decision of the Land Adjudication Officer in respect of the suit properties through the back door hence an abuse of the process of the court.
18.The upshot of the foregoing is that the appeal is found to be lacking in merits and dismissed it with costs to the respondent.