https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10910

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT HOMA BAY** **JUDICIAL REVIEW DIVISION** **JUDICIAL REVIEW APPLICATION NO. E008 OF 2026** **ABONG OKUMU EDWARD ::::::::::::::::::::::::::::::::::::::::::::::::::: 1ST APPLICANT** **AMOS OTIENO ABONG :::::::::::::::::::::::::::::::::::::::::::::::::::: 2ND APPLICANT** **WILSON OKWAYO ABONG :::::::::::::::::::::::::::::::::::::::::::::: 3RD APPLICANT** **KALEB OCHIENG ABONG ::::::::::::::::::::::::::::::::::::::::::::::::: 4TH APPLICANT** **MOSES ODHIAMBO ABONG ::::::::::::::::::::::::::::::::::::::::::::: 5TH APPLICANT** **THOMAS OGALO ABONG ::::::::::::::::::::::::::::::::::::::::::::::::: 6TH APPLICANT** **VERSUS** **CHIEF MAGISTRATES COURT, MBITA LAW COURTS :::::::::: 1ST RESPONDENT** **DIRECTOR OF PUBLIC PROSECUTION ::::::::::::::::::::::::::::: 2ND RESPONDENT** **KOKORE POLICE STATION :::::::::::::::::::::::::::::::::::::::::::::: 3RD RESPONDENT** **AND** **HEADMOND JAMES KOBILL ::::::::::::::::::::::::::::::::::::: 1ST INTERESTED PARTY** **NELSON OCHIENG OUNGA ::::::::::::::::::::::::::::::::::::: 1ST INTERESTED PARTY** **RULING** **[1]** This matter was commenced by the Notice of Motion dated 5th February, 2026, in which the six(6) ex-parte applicants sought leave to apply for judicial review orders of certiorari and prohibition against the three(3) respondents, being the Chief Magistrate Court at Mbita, the director of Public Prosecution and Kokore police station. Two individuals, **Headmond James Kobil** and **Nelson Ochieng Ounga**, were respectively enjoined as interested parties in the matter. **[2]** Basically, the order of certiorari is sought to move into this court for purposes of quashing and to quash the decision of the second respondent **(DPP)** to charge them with the offence of forcible detainer, contrary to Section 91 of the Penal Code. The Order of Probation is sought for purposes of prohibiting and to prohibit the first respondent **(Chief Magistrates Court)** and the second respondent from charging, hearing, prosecuting and determining the charge and/or taking further actions that will adversely affect the rights and fundamental freedom of the applicants. **[3]** The applicants further sought an order that the grant of leave do operate as a stay of the proceedings scheduled to commence on the 9th February, 2026, before the first respondent pending hearing and determination of this application which is anchored on the grounds set out in the Notice of Motion as fortified by the averment in the supporting and verifying affidavits deponed by the second applicant **(Amos)**on the 5th February 2026 together with the statement of facts dated 5th February 2026. **[4]** Briefly, the statement of facts indicates that the second applicant was arrested on 31st January 2026 without any probable cause, harassed, intimidated and released on 1st February 2026 on a police cash bail of ksh.10,000/- from Kokore Sindo police station. He was in the process asked by the police station Commander **(OCS)** to avail his co-applicant brother and agree to leave their father’s home situated on the parcel of land described as No. Suba/Kaksingri West B/1379 measuring 2.78 HA which the interested parties have been claiming from the applicant’s since the month of November, 2021. **[5]** The applicants imply that the interested parties claim to the land is dishonest, fraudulent and discriminatory against them and all other persons perceived to be outsiders in that area. They contend that the interested parties have connived with police officers based at Kokore police station to circumvent the wheels of justice in order to coerce the applicants to withdraw their claim to the material parcel of land. It is also contended by the applicants that the actions against them by the interested parties and the respondent amounts to abuse of the second respondents prosecutorial powers meant to push the malicious agenda of the interested parties in cajoling them. **[6]** It is for all the foregoing reasons that the applicant sought leave to apply for judicial review orders against the respondents and by extension the interested parties. Pursuant to the application this court, differently constituted, granted necessary leave to the applicants and an order that the grant of leave do operate as stay in terms of prayer (3)(A) of the Motion. The applicants were directed to fie and serve the substantive application within seven(7) days from the 6th February, 2026. **[7]** The first interested party belatedly filed his grounds of opposition to the application dated 19th February 2026 accompanied by his replying affidavit deponed on the same date. As at that time, the impugned application had already been granted by the court. Hence, the objection thereto had already been overtaken by events. **[8]** Be that a it may, when the matter was mentioned on 16th February 2026 as directed by the court the first interested party appeared in person while **Mr. Wanyanga**, learned counsel appeared for the applicants. The respondents and the second interested party did not appear. The matter was therefore carried forward to the 23rd February 2026 for further directions on which date only the applicants through learned counsel **Mr. Mwange** and the first interested party appeared. Again, the respondents and the second interested party did not appear. A further mention date was stated for 17th March 2026. **[9]** The applicants through their legal counsel, **M/s Makaba** appeared virtually in court on that 17th March 2026. The first interested party also appeared. It was then that the applicants indicated that the substantive judicial review application dated 9th March 2026 was filed. However, this record does not contain that application. Nevertheless, the court directed that the application be canvassed by way of written submissions, even though the first interested party proposed that a ‘viva-voce” hearing be conducted. **[10]** The court further directed that the responses to the substantive application be filed and served as well as further affidavits with the specified timelines. The matter was therefore filed for further directions on 5th May 2026, when the only appearance before this court was by the first interested party. The rest of the parties did not appear. The court therefore directed that the matter be further mentioned on 30th June 2026, on which date only the first interested party appeared and confirmed that he filed grounds of opposition and a replying affidavit to the application dated 5th February 2026. **[11]** He (first interested party) indicated that he did not intend to file submissions and was relying on his grounds of opposition. He confirmed that the applicant’s submissions were served upon him. Notably, whether the respondents’ nor the second interested party filed their responses and/or submissions respecting the application dated 5th February 2026 and the alleged substantive application dated 9th March 2026. **[12]** It is instructive to note that as at the 30th June 2026, the alleged substantive application dated 9th March 2026 was not on record, yet it was the one for which the court gave directions on 17th March 2026 that it be heard or canvassed by way of written submissions. So, what the court expected were responses and/or submissions respecting the alleged substantive application dated 9th March 2026 and not that dated 5th February, 2026 which in any event was dealt with and determined on 6th February, 2026, hence fully spent. **[13]** Contrary to what is stated in the applicant’s submissions dated 24th April 2026, the substantive application is not the Notice of Motion dated 5th February 2026, which was essentially for leave to apply for judicial review orders, and is since spent. In sum, the responses and/or submissions filed herein by the applicants and the first interested party are irrelevant for purposes of the alleged substantive application dated 9th March 2026 and are hereby struck out and dismissed for want of competence. **[14]** As a matter of fact, all filed documents in this record are in relation to the application for leave dated 5th February 2026. There is no document in relation to the alleged substantive application dated 9th March 2026, which is also not in this record meaning that it was never duly filed and served as directed by the court on 6th February 2026. Its absence therefore, indicated that the leave granted to the applicant’s ceased to have any effect together with the accruing stay order. **[15]** Although the applicants’ submissions herein imply that the alleged substantive application exists, the submissions are in relation to the spent application dated 5th February 2026. But the main context of the submissions relate to the alleged application, in which case the first respondent’s grounds of opposition and replying affidavit would be misconceived and irrelevant in so far as they relate to the spent application for leave. **[16]** It is clear from all the foregoing factors that this court cannot render or purport to render a ruling on a non-existent application or on an application which is already spent. Nonetheless, the leave granted to the applicants was for them to file a substantive application for judicial review orders of **Certiorari** and **Prohibition.** Such orders are issued in exercise of the court’s supervisory powers under **Article (165)(6)** of the **Constitution** which provides as follows: **“The High Court has supervisory jurisdiction over the subordinate courts and over any person body or authority exercising a judicial or quasi – judicial function, but not over a superior court”.** **[17]** An order of certiorari nullifies or quashes the decision of a public body or officer made in excess of jurisdiction or without jurisdiction or generally in violation of fundamental principles of due process. Hence, certiorari looks into the process of arriving at a decision rather than the merits of a decision and an application for such an order must be made within six(6) months of the date the decision was made. In short, an order of certiorari quashes an unlawful decision. **[18]** On the other hand, an order of prohibition restrain a person or body from commencing or continuing an account perceived to be unlawful. Such judicial review orders can also be granted under **Section 11** of the **Fair Administrative Action Act.** In this case, the applicants were granted leave to apply for an order of certiorari to quash the decision of the second respondent **(DPP)** to charge them with the offence of forcible detainer, contrary to Section 91 of the Penal Cod and also an order of prohibition to prohibit the first respondent **(CM court)** and the second respondent from charging the applicants or prosecuting, hearing and determining the charge or taking any action that would adversely affect the rights and fundamental freedoms of the applicants. **[19]** In the application for leave, the applicants relied on the grounds set out in the Notice of Motion dated 5th February 2026, as buttressed by the averments in the supporting affidavits deponed by the second applicant **(Amos)** and the accompanying statement of facts all of which raised serious doubts as to whether the actual application for the material judicial review orders would be tenable or meritable. **[20]** This is informed by the facts that, **Firstly**, as for the order of certiorari the state of the decision sought to be quashed were not specified in the supporting documents, hereby creating uncertainty as to whether the application was in conformity with the prescribed period of six(6) months. **Secondly**, the alleged date of the decision i.e 1st February 2026, could not be established and proved by a police bond and bail bond form dated 1st April 2026 and not 1stFebruary 2026, which form is not a charge sheet and is normally issued in the course of police investigations of a complaint by an aggrieved citizen. **[21]** At the very least, a police bond and bail bond is simply an expression to prefer a charge against a person rather than the charge itself. The facts of this matter clearly indicated that the police received a complaint against the applicants and were in the process of investigating the complaint before forwarding the matter to the office of the director of Public Prosecution for a decision on whether or not to charge the applicants with a criminal offence. **[22]** Herein, there is no charge sheet to demonstrate that the second respondent made a decision to charge and actually charged the applicants with the offence of forceful detainer. In the absence of the charge, the applicants could not be arraigned in court for plea taking, prosecution and hearing of the charge by the court for a determination. consequently, the applicants had no legal basis to seek for orders of certiorari and /or prohibition against the respondents and by extension; the interested parties. **[23]** In the circumstances, a substantive application for the judicial review orders aforementioned would be unmerited, untenable and indeed an abuse of the court process, if not pre-mature. Apparently, the dispute in question between the applicants and the interested parties involves ownership of land, hence falling within the jurisdiction of the environment and land Court and out of the domain of police investigations unless a criminal offence is suspected. **[24]** Therefore, the present proceedings are clearly an attempt to litigate land disputes under the guise of judicial review. Nonetheless, the application for leave dated 5th February 2026 is since spent and there is no substantive application for the judicial review orders and if it were there, then it was filed past the period directed by the court, hence, null and void “ab-initio”. In sum, there entire proceedings are null and void and are hereby dismissed with each party bearing their own costs. Ordered accordingly. **[**Dated, Delivered, this **7TH** day of **JULY, 2026]** ­­­­\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ **HON. J.R. KARANJAH** **JUDGE**