https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3856

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KWALE** **ELCL (JR) NO. E006 OF 2025** **IN THE MATTER OF: THE FAIR ADMINISTRATIVE ACTION ACT, 2015 (CAP. 7L LAWS OF KENYA)** **AND** **IN THE MATTER OF: THE LAND DISPUTES TRIBUNALS ACT, 1990 (CAP. 303A LAWS OF KENYA), NOW REPEALED** **AND** **IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF CERTIORARI TO BRING INTO THIS HONOURABLE COURT FOR PURPOSES OF BEING QUASHED THE ENTIRE DECISION AND ENSUING ORDERS OF THE SENIOR RESIDENT MAGISTRATE’S COURT AT KWALE MADE ON 26TH FEBRUARY, 2009 IN KWALE SENIOR RESIDENT MAGISTRATE’S COURT LAND CASE NUMBER 8 OF 2009 ADOPTING AS A JUDGMENT OF THE COURT THE DECISION MADE BY THE LAND DISPUTES TRIBUNAL ON 8TH JULY, 2008 IN MSAMBWENI LAND DISPUTES TRIBUNAL CASE NUMBER 30 OF 2005 FILED BY MOHAMED ISSA AND RAMA HUSSEIN BWAFUMO** **IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF PROHIBITION PROHIBITING THE COUNTY LANDS REGISTRAR, KWALE FROM IMPLEMENTING THE SAID ENTIRE DECISION AND ORDERS OF THE SENIOR RESIDENT MAGISTRATES COURT AT KWALE IN KWALE SENIOR RESIDENT MAGISTRATE’S COURT LAND CASE NO. 8 OF 2009 DELIVERED ON 26TH FEBRUARY, 2009 FILED BY MOHAMED ISSA AND RAMA HUSSEIN BWAFUMO WITH RESPECT TO THE PROPERTY KNOWN AS LAND TITLE NO. KWALE/MSAMBWENI ‘A’/2830** **IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF PROHIBITION PROHIBITING THE COUNTY LANDS REGISTRAR, KWALE FROM IMPLEMENTING THE ENTIRE DECISION AND ENSUING ORDERS OF THE MSAMBWENI LAND DISPUTES TRIBUNAL DELIVERED ON 8TH JULY, 2008 IN MSAMBWENI LAND DISPUTES TRIBUNAL CASE NO. 30 OF 2005 FILED BY MOHAMED ISSA AND RAMA HUSSEIN BWAFUMO WITH RESPECT TO THE PROPERTY KNOWN AS LAND TITLE NO. KWALE/MSAMBWENI ‘A’/2830** **BETWEEN** **IBRAHIM TSUMO HAMISI (*as the*** ***Personal Representative of the estate*** ***of the Late KADIRI HAMISI TSUMO* ...................................................... APPLICANT** * **VERSUS –** **MSAMBWENI LAND DISPUTES TRIBUNAL ................. 1ST RESPONDENT** **SENIOR RESIDENT MAGISTRATE’S COURT** **AT KWALE …………………..…………………………………… 2ND RESPONDENT** **COUNTY LANDS REGISTRAR, KWALE ....................... 3RD RESPONDENT** **HONOURABLE ATTORNEY GENERAL ........................ 4TH RESPONDENT** **AND** **RAMA HUSSEIN BWAFUMO ............................. 1ST INTERESTED PARTY** **MOHAMED ISSA .............................................. 2ND INTERESTED PARTY** **JUDGEMENT** 1. **Preliminaries** 2. The Judgement of this Honourable Court pertains to the a civil suit instituted by IBRAHIM TSUMO HAMISI (*as the Personal Representative of the estate of the Late KADIRI HAMISI TSUMO),* the Ex – Parte Applicant herein. It was filed in form of an Originating Motion dated 5th June, 2025 for Judicial Review. The Applicant moved Court in his capacity as the Personal Representative of the estate of the late Kadiri Hamisi Tsumo (Hereinafter referred to as "The Deceased") grounded under the provisions of Sections 7(a), 9(1), 10 and 12 of the Fair Administrative Action Act, 2015 (Cap. 7L) and Rules 4, 6(1), (2), (3) as read together with Rules 11, 13(1) and (2) of the Fair Administrative Action Rules, 2024. 3. The Applicant sought for orders of Certiorari to quash, the decision of the Msambweni Land Disputes Tribunal delivered on 8th July 2008 in Tribunal Case No. 30 of 2005; and the adoption of that award as a Judgment of the Senior Resident Magistrate's Court at Kwale on 26th February 2009 in Land Case No. 8 of 2009 – both concerning the parcel known as Land Title No. Kwale/Msambweni 'A'/2830 (Hereinafter referred to "The Suit Property"). Further, the Applicant sought an order of Prohibition restraining the 3rd Respondent, the County Lands Registrar, Kwale, from implementing the said impugned decisions. 4. Despite of service being properly effected, it will be noted that the Respondents never filed any replies nor written submissions whatsoever. However, the Interested Parties, filed a Notice of Preliminary Objection dated 24th October 2025, together with written submissions in support thereof. Subsequently, the Applicant filed written submissions in response both to the Preliminary Objection and on the merits of the Judicial Review Application, and also filed a List of Authorities. 5. Therefore, the matter proceeded for determination on the basis of the Preliminary Objection and submissions of the Interested Parties; and the written submissions and authorities of the Applicant. Ideally, taking that there were no replies filed by any party, the factual depositions of the Applicant stood uncontroverted. 6. **Background** 7. The Applicant, Ibrahim Tsumo Hamisi, is the son and Personal Representative of the estate of the late Kadiri Hamisi Tsumo. He obtained a Limited Grant of Letters of Administration Ad Litem from the Chief Magistrate's Court at Kwale in Succession Miscellaneous Cause No. E001 of 2021, issued on 27th September 2021 (Annexure herein and marked as "ITH - 1"), granting him authority to file suit on behalf of the Deceased's estate for purposes of these proceedings. 8. The Suit Property, Land Title No. Kwale/Msambweni 'A'/2830, comprising approximately 2.2 hectares, was first registered in the name of the late Kadiri Hamisi Tsumo (also referred to as "Abdulkadir" or "Abdulkadir Hamisi Tsumo") on 2nd July 1979 during the land adjudication exercise conducted in the Kwale/Msambweni area. This is confirmed by both the Land Adjudication Records (Annexure marked as "ITH - 2(a)") and the Green Card for the Suit Property (Annexure marked as "ITH 2(b)"), which show registration in the name of Kadiri Hamisi, with the nature of title being Absolute. 9. The proceedings by the Tribunal (Annexure marked as "ITH - 3(a)") reveal that in the year 2005, the Interested Parties – *Mohamed Issa and Rama Hussein Bwafumo* – filed a complaint in the Msambweni Land Disputes Tribunal as Case No. 30 of 2005 (Dispute No. 30/05), claiming ownership of the Suit Property. The dispute was heard over six ( 6 ) hearings commencing on 6th December, 2005 and culminating in a site visit (“***Locus in Quo”***) conducted on 24th August, 2006. The Claimants – the Interested Parties herein, contended that the Suit Property, which borders the Msambweni District Hospital, originally belonged to the Bwafumo family, and that it had been set aside for use as a burial site for unclaimed bodies from the hospital's mortuary; that during the year 1974 land adjudication exercise, the Deceased's family, specifically Abdulkadir Hamisi Tsumo, who held positions both as village chairman and as chairman of the Adjudication Committee, caused the land to be registered in the name of Kadiri Hamisi rather than in the Bwafumo family's name. 10. The Respondents/Objectors in the Tribunal proceedings, as the members of the Tsumo family, contested these claims. They deposed that the Suit Property was legitimately inherited from their father, Hamisi Mwamaingu, who was the original owner; that the land was indeed registered in Kadiri Hamisi's name after he identified its boundaries during adjudication; and that the Bwafumo family had no proprietary interest therein. The Objector Masoud Khamis Tsumo testified that the Suit Property belonged to his father Tsumo Kadiri Hamisi, who inherited it from Hamisi Mwamaingu, and that Hamisi Mwamaingu was the one who had donated a portion of land for the Msambweni District Hospital's construction in the year 1929, which was completed in February, 1932. He stated that Msambweni A/2830 was adjudicated genuinely by his grandfather and was registered in Kadiri Hamisi's name. 11. During the Tribunal's site visit conducted on 24th August 2006, the Tribunal found there were ten (10) houses on site, two ( 2 ) of which were under construction, occupied by Kadiri's family members. There were four ( 4 ) graves were seen on site with fresh mounds of sand. The Tribunal also noted that the Claimants could identify eleven (11) coconut trees on the disputed site while the Objectors counted only five (5). Only one small grave was identified by the Objectors. 12. On 8th July, 2008, the Msambweni Land Disputes Tribunal, comprising Musa Makoroma (Chairman), Juma Mbwata, James Mulinge, Juma Kivugo and Ali Mohamed (Members), delivered its Judgment (Annexure marked as "ITH - 3(a)"). In the Judgment, the Tribunal found fault with the objection, noting that the family members of the Tsumo/Kadiri lineage had enjoyed an upper hand in local administrative leadership – including that Rindano Hamisi was Chief, Abdulkadir Hamisi was both Adjudication Committee Chairman and village head, Mwakidziru Tsumo was formerly the District Officer's Secretary, and Masudi Tsumo was Chief until the year 1997. The Tribunal stated that these positions provided ample ground for manipulation and that this was clearly seen when the Claimant submitted that during adjudication HALFAN SALIM MWACHARO wished to be registered for the plot but Kadir Hamisi objected, and Halfan was registered in a different plot. The Tribunal declared that the parcel of land Kwale/Msambweni/2830 be reinstated back to the Bwafumo family, ordered the Kwale Lands Registrar to withdraw all documents/title deed issued to the Objectors, revoke the allocation, and issue a fresh title to the Claimants Mohamed Issa and Rama Hussein Bwafumo without any encumbrances immediately. 13. On 26th February, 2009, the Senior Resident Magistrate's Court at Kwale, before A.M. Onura (Mrs) R.M., in Land Case No. 8 of 2009, with both Claimants and the Objector present, considered the proceedings and decision of the Land Disputes Tribunal in Dispute No. 30/05 in respect of Kwale/Msambweni 'A'/2830, and adopted the same as a Judgment of the Court (Annexure marked as "ITH - 3 (b)"). The adoption was recorded in a single paragraph by S.R.M. Orembo D.O. 14. Subsequently, Mombasa ELC Civil Suit No. 465 of 2011 was filed by Masudi Tsumo Hamisi and Tima Kadiri Tsumo (as Plaintiffs, being children/heirs of the Deceased) against Rama Hussein Bwafumo and Mohamed Issa (Defendants/Interested Parties herein) over the ownership of the Suit Property. The 1st and 2nd Defendants raised a Notice of Preliminary Objection on grounds of there being a breach of the Res Judicata. By a Ruling of Justice L.L. Naikuni dated 22nd February, 2022 (Annexure marked as "ITH - 4"), the Mombasa ELC struck out the suit on the grounds that it was res judicata to Kwale SRM Land Case No. 8 of 2009 (which had adopted the Tribunal's award), finding that the parties, subject matter, and issues were the same as those previously determined. The Court applied the five-limb test from ***Independent Electoral and Boundaries Commission – Versus - Maina Kiai & 5 Others [2017] eKLR”*** and Section 7 of the Civil Procedure Act, Cap. 21. 15. The Applicant avers in his Supporting Affidavit that internal mechanisms for appeal or review had been exhausted or were unavailable to him, save for this Judicial Review Application, and that to date he and his family remained in actual physical possession, control and occupation of the Suit Property. Additionally, it was submitted that the 3rd Respondent - County Lands Registrar was poised to implement the impugned decisions unless restrained. 16. **The Originating Motion Application** 17. The Applicant sought for the following orders: 18. ***Spent.*** 19. ***Spent.*** 20. ***Spent.*** 21. ***That an Order of Prohibition be issued prohibiting the County Land Registrar Kwale (3rd Respondent) from implementing and enforcing the entire Decision and ensuing Orders of the Msambweni Land Disputes Tribunal delivered on 8th July, 2008 in Msambweni Land Disputes Tribunal Case No. 30 Of 2005 filed by Mohamed Issa and Rama Hussein Bwafumo over the Property Known as Land Title No. Kwale/Msambweni ‘A’/2830 together with the ensuing Judgment of the Senior Resident Magistrate’s Court at Kwale made on 26th February, 2009 in the Kwale Senior Resident Magistrate’s Court Land Case No. 8 of 2009 filed by Mohamed Issa and Rama Hussein.*** 22. ***That an Order of Certiorari be issued to bring into this Honourable Court for purposes of being quashed the entire Decision and ensuing Orders of the Msambweni Land Disputes Tribunal delivered on 8th July, 2008 in Msambweni Land Disputes Tribunal Case No. 30 Of 2005 filed by Mohamed Issa and Rama Hussein Bwafumo over the Property Known as Land Title No. Kwale/Msambweni ‘A’/2830.*** 23. ***That an Order of Certiorari be issued to bring into this Honourable Court for purposes of being quashed the entire Decision and ensuing Orders of the Senior Resident Magistrate’s Court at Kwale made on 26th February, 2009 in Kwale Senior Resident Magistrate’s Court Land Case No. 8 of 2009 filed by Mohamed Issa and Rama Hussein Bwafumo over the property known as Land Title No. Kwale/Msambweni ‘A’/2830.*** 24. ***That the Applicant be granted the costs of this Application.*** 25. The Originating Motion was premised on the grounds, testimonial facts and the averments made out under the 13 Paragraphed affidavit sworn by IBRAHIM TSUMO HAMISI dated the 5th June, 2025 together with four ( 4 ) annextures marked as “ITH 1 – 4” annexed thereto. The Affiant averred, inter alia, that: - 26. He was the Applicant herein and was competent to swear this Affidavit. 27. He obtained a Grant of Letters of Administration ad litem from the Chief Magistrate’s Court at Kwale in Succession Miscellaneous Cause No. E001 of 2021 in the matter of the estate of the Late Kadiri Hamisi Tsumo. Annexed hereto and marked as “ITH - 1” was a copy of the said Grant of Letters of Administration ad Litem issued to him. 28. At all material times to this Suit, and even prior to the making of the impugned Decision of the Land Disputes Tribunal, the Suit property Land Title Number Kwale/Msambweni ‘A’/2830 was and is still registered in the name of the Late Kadiri Hamisi registered as such on 2nd July, 1979. Annexed hereto and marked as “ITH - 2(a)”, and “ITH - 2(b)” were copies of the Land Adjudication Records and Green Card for the Suit property respectively. 29. The subject matter of this Application were 2 Decisions, namely:- 30. the entire Decision and ensuing Orders of the Msambweni Land Disputes Tribunal delivered on 8th July, 2008 in Msambweni Land Disputes Tribunal Case No. 30 of 2005 filed by Mohamed Issa and Rama Hussein Bwafumo over the Property Known as Land Title No. Kwale/Msambweni ‘A’/2830 (hereinafter referred to as “the impugned Decision of the Land Disputes Tribunal”), and; 31. the entire Decision and ensuing Orders of the Senior Resident Magistrate’s Court at Kwale in Kwale Senior Resident Magistrate’s Court Land Case No. 8 of 2009 filed by Mohamed Issa and Rama Hussein Bwafumo over the property known as Land Title No. Kwale/Msambweni ‘A’/2830 adopting the impugned Decision of the Land Disputes Tribunal as a Judgment of the Court. annexed hereto and marked as “ITH - 3(a)” was a copy of the impugned Decision made by the 1st Respondent on 8th July, 2008, and annexed hereto and marked as “ITH - 3(b)” was a copy of the impugned Decision of the 2nd Respondent. 32. In the impugned Decision of the Land Disputes Tribunal, the 1st Respondent ruled and decided that the title allocated to and held by the Deceased Kadiri Hamisi over the Suit property Land Title No. Kwale/ Msambweni ‘A’/2830 be revoked/cancelled and awarded ownership thereof to the Interested Parties. 33. Subsequently, the Interested Parties filed the Kwale Senior Resident Magistrate’s Court Land Case No. 8 of 2009 where the Court adopted the impugned Decision of the Land Disputes Tribunal as a Judgment of the Honourable Court. 34. He was aggrieved by the impugned Decision of the Land Disputes Tribunal made as well as the said Decision of the Kwale Senior Resident Magistrate’s Court thus rendering this Application necessary, and more particularly on the following grounds: 35. The 1st Respondent Msambweni Land Disputes Tribunal had no jurisdiction to purport to determine the ownership and to cancel the title of the Deceased herein over the Suit property Land Title Number Kwale/Msambweni ‘A’/2830. 36. The impugned Decision of the 1st Respondent Msambweni Land Disputes Tribunal was made without jurisdiction, remains ultra vires and was therefore illegal, a nullity, and void ab initio. 37. The impugned Decision of the 1st Respondent Msambweni Land Disputes Tribunal was a nullity, void ab initio, and could not found a legal basis for its adoption as a Judgment of the Court by the 2nd Respondent Senior Resident Magistrate’s Court at Kwale. 38. The adoption of the impugned Decision of the Land Disputes Tribunal by the Senior Resident Magistrate’s Court at Kwale in the Kwale Senior Resident Magistrate’s Court Land Case No. 8 of 2009 was a nullity, void ab initio and of no legal effect. 39. Meantime, the 3rd Respondent shall proceed to implement and enforce the impugned Decision of the Land Disputes Tribunal made by the 1st Respondent and adopted as a Judgment of the Court by the 2nd Respondent Kwale Senior Resident Magistrate’s Court, unless restrained and prohibited by this Honourable Court. 40. To date, his family and himself remained in the actual physical possession, control and occupation of the Suit property. 41. Another Suit touching on the Suit property was Mombasa ELC Civil Suit Number 465 of 2011 but the same was struck out on 22nd February, 2022 on account of being res judicata the aforementioned Msambweni Land Disputes Tribunal Case No. 30 of 2008 and the ensuing Kwale Senior Resident Magistrate’s Court Land Case Number 8 of 2009. Annexed hereto and marked as “ITH - 4” was a copy of the Ruling delivered by the ELC Court at Mombasa in Mombasa ELC Civil Suit Number 465 of 2011. 42. Internal mechanisms for appeal or review and any other remedy under any written law had been exhausted or unavailable to the Applicant, save for this Judicial Review Application. 43. It was therefore in the interests of justice and fairness that the Court hears this Application and allow it as presented, or as the Honourable Court shall deem fit in the circumstances. 44. **The Preliminary Objection by the Interested Parties** 45. The Interested Parties in response to the Originating Motion raised a Notice of Preliminary Objection through the Law Firm of Otieno Odundo and Company Advocates dated 24th October 2025 on points of law seeking the Applicant’s Originating Summons dated 5th June, 2025 be struck out and/or dismissed in limine, on the following grounds that: 46. the Application was fatally defective, incompetent, misconceived, and bad in law, having been instituted in flagrant contravention of express statutory provisions and settled legal principles governing judicial review. 47. the impugned decisions sought to be quashed were rendered by the Msambweni Land Disputes Tribunal on or about 8th July, 2008 and subsequently adopted as a judgment of the Senior Resident Magistrate’s Court at Kwale in Land Case No. 8 of 2009. 48. the present Application, having been filed over fifteen (15) years after delivery of the said decisions, is time-barred under Order 53 Rule 2 of the Civil Procedure Rules, 2010 which mandates that an application for an order of certiorari be made within six (6) months from the date of the decision sought to be quashed. 49. the limitation period under the provision of Order 53 was substantive and jurisdictional, and this Honourable Court has no discretion to enlarge or extend it. Consequently, the Application is statute-barred, void ab initio, and liable to be struck out. 50. the Application was res judicata pursuant to Section 7 of the Civil Procedure Act, Cap. 21 the subject matter having been conclusively determined between the same parties and over the same parcel of land — Kwale/Msambweni ‘A’/2830 — in Msambweni Land Disputes Tribunal Case No. 30 of 2005, Kwale SRM Land Case No. 8 of 2009, and subsequently in Mombasa ELC Civil Suit No. 465 of 2011, which was struck out on 22nd February, 2022 on grounds of res judicata. 51. the Applicant now sought, through this Judicial Review, to re - open and re-litigate matters conclusively settled by competent courts, thereby offending the doctrine of finality of litigation. 52. there existed a pending appeal before the Court of Appeal at Mombasa, being Civil Appeal No. E061 of 2022, arising from the said ELC Civil Suit No. 465 of 2011, involving the same parties, the same subject matter, and the same issues. 53. the present Application offended the provision of Section 6 of the Civil Procedure Act, Cap. 21 on the doctrine of sub judice, in that it invited this Honourable Court to entertain a matter directly and substantially in issue in a pending appeal before a superior court. 54. Judicial Review was concerned solely with the decision-making process and not with the merits of the decision itself. The grievances advanced by the Applicant pertain to ownership, title, and proprietary interests, which are issues of fact and merit not amenable to judicial review jurisdiction. 55. the Application amounted to a disguised appeal under the guise of judicial review, contrary to established jurisprudence, including the case of:- “***Republic – Versus - Kenya Revenue Authority Ex - Parte Yaya Towers Limited [2008] eKLR and Pastoli – Versus - Kabale District Local Government Council & Others [2008] 2 EA 300”.*** 56. the prayers for prohibition were misconceived, as the decisions sought to be prohibited have long been implemented and adopted as final judgments. Prohibition cannot issue to undo completed acts or reverse concluded judicial or administrative processes. 57. the Application before Court was incompetent, time-barred, res judicata, sub judice, and an abuse of the court process, and ought to be dismissed with costs. 58. **Submissions** 59. On 5th November, 2025, the Honourable Court while in the presence of the Applicant and the Interested parties, directed that to save on judicial time the Preliminary Objection dated 25th October 2025 and the Notice of Motion Application dated 5th May 2025 be canvassed simultaneously and an omnibus Judgement rendered. 60. Pursuant to that the Ex – Parte Applicant and the Interested Parties herein complied and filed their respective submissions. 61. **The Written Submissions by the Interested Parties/Objectors** 62. The Interested Parties submitted that the Applicant’s Judicial Review proceedings were incurably defective for having been instituted over fifteen (15) years after the impugned decisions were rendered. They argued that Order 53 Rule 2 of the Civil Procedure Rules, 2010 expressly barred applications for certiorari filed outside six months from the date of the impugned decision and that the Court lacked jurisdiction to entertain the present proceedings. Reliance was placed on the case of:- “***Republic – Versus - Public Procurement Administrative Review Board & 2 Others ex parte Syner-Chemie Limited [2016] eKLR*** and ***Aga Khan Education Service Kenya – Versus - Republic ex parte Ali Seif & 3 Others [2012] eKLR.*** 63. The Interested Parties further submitted that the doctrine of res judicata squarely applied since the ownership dispute over Land Parcel No. Kwale/Msambweni “A”/2830 had allegedly been conclusively litigated before the Msambweni Land Disputes Tribunal, adopted in Kwale SRM Land Case No. 8 of 2009, and later litigated in Mombasa ELC Civil Suit No. 465 of 2011 which was struck out on grounds of res judicata. The Interested Parties relied on the Supreme Court decision in the case of:- “***John Florence Maritime Services Limited & Another – Versus - Cabinet Secretary for Transport & Infrastructure & 3 Others [2021] KESC 39 (KLR)”*** for the proposition that litigation must come to an end and parties should not be permitted to relitigate matters already determined by competent courts. 64. On the case being sub judice, the Interested Parties submitted that there existed a pending appeal before the Court of Appeal being Civil Appeal No. E061 of 2022 arising from the striking out of Mombasa ELC Civil Suit No. 465 of 2011. They argued that entertaining the present proceedings while the appeal remained pending would risk conflicting judicial determinations over the same subject matter and offended the provision of Section 6 of the Civil Procedure Act, Cap. 21. Reliance was placed on the case of “***Republic – Versus - Paul Kihara Kariuki, Attorney General & 2 Others ex parte Law Society of Kenya [2020] eKLR”.*** 65. The Interested Parties additionally argued that Judicial Review proceedings were concerned with the legality of the decision-making process and not the merits or ownership disputes relating to land. They contended that the Applicant’s grievances revolved around ownership and proprietary interests over the suit land and therefore fell outside the proper scope of Judicial Review. To buttress on this point, they cited the case of:- “***Republic – Versus - Kenya Revenue Authority ex parte Yaya Towers Limited [2008] eKLR*** and ***Pastoli – Versus - Kabale District Local Government Council & Others [2008] 2 EA 300 (Supra).*** 66. Lastly, the Interested Parties submitted that an order of prohibition could not issue against completed acts or concluded decisions. To support their case, they relied on the case of:- “***Republic – Versus - Kenya National Examinations Council Ex - Parte Gathenji & Others [1997] eKLR”*** for the proposition that prohibition is prospective in nature and could not undo what has already been done. Consequently, the Interested Parties urged the Court to uphold the Preliminary Objection and strike out the Judicial Review proceedings with costs. 67. **The Written Submissions by the Ex – Parte Applicant** 68. The Applicant submitted that the Interested Parties’ Preliminary Objection did not meet the legal threshold established in the celebrated case of “***Mukisa Biscuit Manufacturing Co. Limited – Versus - West End Distributors Limited”,*** as it allegedly raised contested factual issues requiring evidentiary interrogation. The Applicant argued that the issues of res judicata and sub judice necessitated examination of pleadings, proceedings, and prior judgments, which could not properly be undertaken within the confines of a preliminary objection. The Learned Counsel made reference to the case of:- “***Yusuf Salim Kutwaa – Versus - Riziki Kassim Masudi [2016] eKLR”*** where the Court held that res judicata could not ordinarily be raised by way of a preliminary objection. 69. On the doctrine of res judicata. The Learned Counsel asserted that the parties in the previous proceedings were materially different from the parties in the present Judicial Review proceedings and that the estate of the deceased proprietor had not been properly represented in the earlier suits. The Applicant further argued that a void decision rendered without jurisdiction could not constitute a lawful basis for invoking the doctrine of res judicata. In support thereof, the Applicant cited the case of:- “***Joseph Wanjala Oduba – Versus - Pascal Okumu Kaburu & 2 Others [2021] eKLR”***, where the Court observed that res judicata could only arise where the earlier matter had been determined by a court or tribunal of competent jurisdiction. 70. With regard to the limitation under the provision of Order 53 Rule 2 of the Civil Procedure Rules, 2010. The Learned Counsel contended that the six-month limitation period could not apply where the impugned decision was a jurisdictional nullity. The Applicant maintained that the Msambweni Land Disputes Tribunal lacked jurisdiction to cancel title deeds or determine ownership of registered land and therefore its decision was void ab initio. On this legal supposition, the Applicant heavily relied on the Court of Appeal decision in the case of:- “***Stephen Kibowen – Versus - Chief Magistrate’s Court Nakuru & 2 Others [2017] eKLR”***, wherein the Court held that a nullity could not trigger statutory limitation periods. 71. On the plea of the Doctrine of sub – judice. The Learned Counsel averred that the pending appeal arising from Mombasa ELC Civil Suit No. 465 of 2011 concerned different issues from those presently before this Court. It was argued that the pending appeal merely challenged the striking out of a civil suit and never raised the public law issues presently before the Court concerning jurisdiction, legality, and availability of judicial review remedies. The Applicant further argued that no pleadings or proceedings from the alleged appeal had been annexed to demonstrate that the matters in issue were directly and substantially the same. 72. On the substantive Judicial Review motion. The Applicant submitted that the Land Disputes Tribunal acted ultra vires by cancelling a registered title and awarding ownership of registered land, powers which it never possessed under the repealed Land Disputes Tribunals Act. The Applicant argued that the subsequent adoption of the award by the subordinate court could not validate an illegality or confer jurisdiction where none existed. Consequently, the Applicant urged the Court to issue orders of Certiorari quashing both the Tribunal award and the subordinate court judgment together with an order of Prohibition restraining the County Land Registrar from implementing the impugned decisions. 73. **Analysis and Determination** 74. I have carefully considered the Notice of Motion Application dated 5th June 2025, the Supporting Affidavit sworn by the Applicant, the annextures thereto, the Notice of Preliminary Objection dated 24th October 2025, together with the rival written submissions and the myriad of authorities cited by the parties, the relevant provision of the Constitution of Kenya, 2010 and the statures. 75. For the Honourable Court to reach an informed, just, fair and reasonable decision, it has condensed the subject matter into the following five ( 5 ) salient issues for its determination: - ***a) Whether the Interested Parties’ Notice of Preliminary Objection raises pure points of law and precedents capable of determination at a preliminary stage.*** ***b) Whether the present Judicial Review proceedings are statute-barred under Order 53 Rule 2 of the Civil Procedure Rules.*** ***c) Whether the present proceedings are res judicata and/or sub judice.*** ***d) Whether the Msambweni Land Disputes Tribunal acted without jurisdiction in cancelling title and awarding ownership of Land Parcel No. Kwale/Msambweni “A”/2830.*** ***e) Whether the Applicant has satisfied the threshold for grant of the Judicial Review orders sought.*** ***ISSUE No. a). Whether the Interested Parties’ Notice of Preliminary Objection raises pure points of law and precedents capable of determination at a preliminary stage.*** 1. Under this sub – title, the Honourable Court shall endeavour to extrapolate on the meaning, scope and nature of the concept of **“Preliminary Objection”**. According to the Black Law Dictionary a preliminary objection is defined as: ***In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”*** 1. The legal position on preliminary objection was properly laid out in the now *Classicus locus* case of “***Mukisa Biscuits Manufacturing Co Limited – Versus - West End Distributors Limited (1969) EA 696***described a preliminary objection as hereunder:- ***'So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.'*** ***Sir Charles Newbold, JA in the same case stated that: -*** ***'A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does not nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.'*** 1. Additionally, several Superior courts have dealt with the subject matter. The Supreme Court addressed its mind on this issue in the case of:- *“****Aviation & Allied Workers Union Kenya – Versus - Kenya******Airways Limited & 3 Others [2015] eKLR”***and stated: ***“Thus, a Preliminary Objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts.”*** 1. Further, in the case of:- *“****Nitin Properties Limited – Versus - Singh Kalsi & Another [1995] eKLR”***the court stated thus:- - ***'A Preliminary Objection raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.'*** 1. Similarly, the Tanzanian Court of Appeal sitting in Dar es Salaam, in the case of *“****Karata Ernest & Others – Versus – Attorney General (Civil Revision No 10 of 2020) [2010] TZCA 30 (29 December 2010)*,** (Luanda, JA, Ramadhani, CJ, Rutakangwa, JJA), expounded the issue of preliminary objections in a more exhaustive manner as follows: - ***“At the outset we showed that it is trite law that a point of preliminary objection cannot be raised if any fact has to be ascertained in the course of deciding it. It only "consists o f a point of law which has been pleaded, or which arises by dear implication out of the pleading obvious examples include: objection to the jurisdiction of the court; a plea of limitation; when the court has been wrongly moved either by non-citation or wrong citation of the enabling provisions of the law; where an appeal is lodged when there is no right of appeal; where an appeal is instituted without a valid notice of appeal or without leave or a certificate where one is statutorily required; where the appeal is supported by a patently incurably defective copy of the decree appealed from; etc. All these are clear pure points of law. All the same, where a taken point of objection is premised on issues of mixed facts and law that point does not deserve consideration at all as a preliminary point of objection. It ought to be argued in the "normal manner" when deliberating on the merits or otherwise of the concerned legal proceedings.’*** 1. Arising from the above, it is clear that a preliminary objection should raise pure points of law and which are argued on the assumption that all facts are correct. However, a preliminary objection cannot be raised if any facts have to be ascertained from elsewhere or if the court is called upon to exercise judicial discretion. 2. The Applicant submitted that the issues of res judicata and sub judice raised by the Interested Parties required examination of pleadings, proceedings, records, and judgments from previous proceedings and therefore could not properly be raised as pure points of law. The Applicant relied on the case of:- ***“Yusuf Salim Kutwaa – Versus - Riziki Kassim Masudi [2016] eKLR”*** where the Court held that res judicata ordinarily requires interrogation of pleadings and evidence and was therefore unsuitable for determination by way of preliminary objection. 3. This Court has carefully examined the Notice of Preliminary Objection together with the material placed before it. The Court notes that the Interested Parties anchored their plea of res judicata upon previous proceedings allegedly conducted before the Msambweni Land Disputes Tribunal, the Kwale Senior Resident Magistrate’s Court, and Mombasa ELC Civil Suit No. 465 of 2011. 4. However, for a Court to conclusively determine whether a matter is res judicata under Section 7 of the Civil Procedure Act, the Court must ascertain whether: 5. **the parties are the same or litigating under the same title;** 6. **the subject matter is directly and substantially the same;** 7. **the previous suit was heard and finally determined; and** 8. **the earlier decision was rendered by a court or tribunal of competent jurisdiction.** 9. These are not matters capable of automatic ascertainment merely from the face of the pleadings. Indeed, they require scrutiny of prior pleadings, proceedings, and judgments. The Court further notes that the Applicant has challenged the jurisdiction of the Tribunal itself, arguing that the Tribunal lacked jurisdiction ab initio to determine ownership and cancel title to registered land. 10. Equally, the plea of sub judice raised by the Interested Parties is anchored upon the alleged pendency of Civil Appeal No. E061 of 2022 before the Court of Appeal at Mombasa. However, no pleadings from the said appeal were annexed to enable this Court ascertain whether the issues therein are directly and substantially the same as those presently before the Court. 11. Consequently, this Court is persuaded by the submission by the Learned Counsel for the Applicant that the pleas of res judicata and sub judice as framed by the Interested Parties require evidentiary interrogation and are therefore unsuitable for determination as pure preliminary objections. 12. Be that as it may, I hold the view that the plea relating to limitation under Order 53 Rule 2 of the Civil Procedure Rules, 2010 raises a jurisdictional question of law capable of determination at a preliminary stage since the dates of the impugned decisions are not disputed. The Court shall therefore proceed to determine it accordingly. ***ISSUE No. b). Whether the present Judicial Review proceedings are statute-barred under Order 53 Rule 2 of the Civil Procedure Rules.*** 1. It is not disputed that the impugned decision of the Msambweni Land Disputes Tribunal was delivered on 8th July, 2008 while the award was subsequently adopted as a judgment of the Senior Resident Magistrate’s Court at Kwale on 26th February, 2009. The present Judicial Review proceedings were instituted on 5th June ,2025 approximately fifteen (15) years after the impugned decisions. The Interested Parties submitted that the proceedings are statute-barred under Order 53 Rule 2 of the Civil Procedure Rules which requires an application for certiorari to be instituted within six ( 6 ) months from the date of the impugned decision. 2. On the other hand, the Applicant contended that the six-month limitation period cannot apply where the impugned decision is a jurisdictional nullity. The Applicant relied on the Court of Appeal decision in the case of:- “***Stephen Kibowen – Versus - Chief Magistrate’s Court Nakuru (Supra)”*** where the Court held that nullities cannot be immunized by limitation periods. 3. The requirement for filing an application seeking the prerogative writ of “***Certiorari”*** within six months from the date of the decision is a mandatory requirement of both the provision of Section 9 (3) of the Law Reform Act, Cap. 26 and Order 53 Rule 2 of the Civil Procedure Rules, 21. The provision of Order 53 Rule 2 provides in material part: **"leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purposes of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding."** 1. The word 'shall' is unequivocal. In saying so, this Court is guided by the holding of the Court of Appeal in the case of:- “***Ako – Versus - Special District Commissioner Kisumu & Another, Civil Appeal No. 27 of 1989”***, where it was held that:- ***"The prohibition is statutory and is not therefore challengeable under procedural provisions of the Civil Procedure Rules... We have no doubt that the prohibition is absolute and any other interpretation or view of the particular provision would be doing violence to the very clear provision of sub - section (3) of Section 9 of the Law Reform Act."*** 1. The statement of principle has stood for over three decades, undisturbed by the Supreme Court and unamended by Parliament. 2. It is instructive to reflect on why the law imposes a fixed outer limit of this kind. The courts of England, from whose practice the six-month period derives, have consistently explained the rationale in terms of three overlapping principles. The first is the need for finality in public law decisions. As the House of Lords recognised in the decision of:- “***R – Versus - Dairy Produce Quotas Tribunal Ex - Parte Caswell [1990] 2 AC 738”***, public authorities must be able to act on their decisions without indefinite threat of judicial undoing, and good administration requires a cut-off point. The second is protection of third-party reliance. In the case of:- “***R – Versus - Secretary of State for Health Ex - Parte Furneaux [1994] 2 All ER 652”***, the Court of Appeal elaborated that the question is not whether the delay caused the prejudice but whether granting the remedy now would cause harm, a materially different and more demanding inquiry for the applicant. The third principle is inherent in the nature of the remedy itself: certiorari is an extraordinary discretionary writ, not a right, and coming late to court is itself a reason to withhold it. These principles apply with full force in the Kenyan context and inform why Section 9 (3) is framed in mandatory rather than permissive terms. 3. Further, in “***the Court of Appeal in Civil Appeal No. E019 of 2021, Rift Valley Enterprises Limited – Versus - Nakuru District Land Disputes Tribunal & Others (Warsame, Mativo & Gachoka, JJ.A., delivered 17th March, 2026),*** confirmed the rationale underlying the six-month rule in terms of three overlapping principles: the need for finality in public law decisions; protection of third-party reliance; and the inherent nature of certiorari as an extraordinary discretionary writ, not a right. 4. This Court acknowledges that the Applicant seeks to invoke the exception recognised in the case of:- “***Stephen Kibowen”***, to the effect that a void decision made without jurisdiction is incapable of commencing a reckoning of time. However, the Court of Appeal in “***Rift Valley Enterprises (Supra)”*** — which was decided after and with full knowledge of Stephen Kibowen case — has clarified that even assuming the Tribunal's decision was a nullity, that assumption does not by itself carry an applicant to the relief sought. The appeal in Rift Valley Enterprises case failed even on the assumption most favourable to the appellant in that case. 5. The decisive reason is this. Assuming without deciding that the 1st Respondent's decision of 8th July, 2008 was made without jurisdiction and was therefore void, that nullity cannot travel forward and infect the Judgment of the Senior Resident Magistrate's Court made on 26th February, 2009. Under the provision of Section 7 of the repealed Land Disputes Tribunals Act, upon transmission of the Tribunal's award to the Magistrate's Court, that court was obliged to adopt the award as its own judgment. Upon adoption, the award ceased to exist as an independent legal instrument — it was subsumed into and became the Judgment of the court. 6. As the Court of Appeal held in the case of:- “***Catherine C. Kittony – Versus - Jonathan Muindi Dome & 2 Others [2019] KECA 84 (KLR***)” the Court of Appeal affirmed that a party who fails to challenge the court judgment through the mechanisms provided under statute forecloses any further avenue of challenge, regardless of the jurisdictional complaints directed at the underlying award. The court held: ***"The Land Dispute Tribunal had mechanisms to deal with outcomes such as the one rendered by the 2nd respondent. The award by the 2nd respondent ceased to exist upon adoption by the court as its judgment and a decree. The award cannot be challenged by filing a fresh suit as it is trite law that where a statute establishes a dispute resolution mechanism that mechanism must be followed and exhausted, where a party fails to do so he cannot be heard to say that his rights were denied."*** 1. Likewise, in the case of:- “***Florence Nyaboke Machani – Versus - Mogere Amosi Ombui & 2 Others [2014] KECA 384 (KLR***)”, the Court of Appeal upheld that:- ***“It is trite law that a valid Judgment of a court unless overturned by an appellate court remains a Judgment of court and is enforceable, the issue of jurisdiction notwithstanding. The Plaintiff had all avenues to impugn the award as well as the Judgment. He did nothing. As sarcastically put by counsel for the Defendants in his submissions, the Plaintiff chose to sleep on his rights like the Alaskan fox which went into hibernation and forgot that winter was over. In the meantime, the 1st Defendant’s rights to the suit premises crystallized. Equity assists the vigilant and not the indolent. The Plaintiff has come to court too late in the day and accordingly, the declaratory relief must fail. I doubt that even the remedy of the declaration is available to the Plaintiff to impugn a valid court Judgment and decree”.*** 1. In the present case, the Magistrate's Court adoption Judgment of 26th February, 2009 has never been appealed, reviewed, varied or set aside. It remains operative. An order of Certiorari directed exclusively at the antecedent Tribunal award cannot reach that Judgment. The consequence, as articulated by the Court of Appeal in the case of:- ***“Rift Valley Enterprises and in Mathenge – Versus - Gatua & Another [2024] KECA 341 (KLR)”,*** is that by invalidating the Tribunal's decision whilst the Magistrate's Court judgment remains in place, this Court would create a structural impossibility — setting aside by implication a valid court judgment through a collateral process. 2. Similarly, the Court of Appeal in the case of:- “***Mathenge – Versus - Gatua & Another [2024] KECA 341 (KLR)”*** stated that:- ***“We are cognizant of the fact that jurisdiction cannot be granted to the court or the tribunal by an agreement between the parties, if no jurisdiction is granted by law. We are not therefore to be understood to be saying that the tribunal had jurisdiction or lacked jurisdiction. The position is that a Judgment had been entered, and the same has not been challenged through any process known in law.*** ***By invalidating the decision of the tribunal whilst the Judgment of the Magistrates’ court remains in place, the Learned Judge has created a situation in which the judgment has been set aside by implication yet the said Judgment had been entered properly. We find ourselves unable to uphold the consequential anarchy brought about by the decision in issue herein.*** 1. Legally speaking, and based on “***the Principles of Stare Decisis”*** this Honourable Court is bound by and respectfully applies those authorities. The relief sought in the present Application, orders of certiorari targeted at the Tribunal's award of 8th July, 2008 and its adoption on 26th February, 2009, cannot afford the Applicant the outcome it requires without first setting aside the Magistrate's Court judgment through an appropriate process. The remedy sought is structurally incapable of achieving the Applicant's objective. 2. Moreover, the Application was filed some fifteen (15) years after the impugned decisions. Extensive third-party interests have arisen in that period. The 3rd Respondent is in the process of implementing decisions that have remained on foot since the year 2009. As the Court of Appeal in ***Rift Valley Enterprises (Supra)*** observed, this is precisely the situation the six-month rule is designed to protect against, not as a procedural technicality envisaged under the provision of Article 159 ( 2 ) ( d) of the Constitution of Kenya, 2010, but as a principled recognition that the law cannot be kept permanently in suspense at the instance of a party who chose not to invoke the remedies available within the time the law prescribed. 3. For these reasons, therefore, the application must fail as the objection is sustained. **ISSUE No. c). *Whether the present proceedings are res judicata and/or sub judice.*** 1. Under this sub – heading, the Honourable Court will be examining whether the there has been any breach of the Doctrine of Sub – Judice as alleged. Having found above that the Application cannot succeed on the basis of the structural impossibility of the relief sought, this Court does not strictly need to determine the pleas of res judicata and sub judice. However, for completeness, the Court notes the following. 2. From the record, the Mombasa ELC struck out Mombasa ELC Civil Suit No. 465 of 2011 on the ground that it was res judicata to Kwale SRM Land Case No. 8 of 2009. It is imperative to note that ruling is now the subject of a pending appeal before the Court of Appeal, being Civil Appeal No. E061 of 2022. 3. The pendency of that appeal, involving the same parties and the same suit property, raises a serious sub judice concern which this Court is unable to ignore. To grant the relief now sought would be to make a determination collateral to and potentially inconsistent with whatever outcome the Court of Appeal reaches in Civil Appeal No. E061 of 2022. 4. Independently, the doctrine of res judicata under the provision of Section 7 of the Civil Procedure Act, Cap. 21 applies where the parties, subject matter, and issues are the same as in a previous suit that was finally determined by a court of competent jurisdiction. The Applicant argues that the present proceedings are different in nature — being public law proceedings challenging jurisdiction — and that a void decision cannot found the Doctrine of Res Judicata. This Court acknowledges the theoretical force of that argument, but notes that the Applicant's family members litigated ownership of this very parcel and failed. Hence, allowing a fresh collateral challenge through judicial review, fifteen (15) years down the line, risks precisely the perpetual litigation that the doctrine of res judicata is designed to prevent. I am informed on the legal maxim – **“Litigation must come to an end”**. I need say no more. ***ISSUE No. c). Whether the Msambweni Land Disputes Tribunal acted without jurisdiction in cancelling title and awarding ownership of Land Parcel No. Kwale/Msambweni “A”/2830.*** 1. The Applicant's substantive case is that the Msambweni Land Disputes Tribunal lacked jurisdiction under provision of Section 3(1) of the repealed Land Disputes Tribunals Act to cancel a registered title and direct the transfer of registered land. The Court acknowledges the strength of this jurisdictional argument, and notes that similar arguments have found favour in other decisions of this Court and the Court of Appeal. 2. However, as the Court of Appeal explicitly stated in “***Rift Valley Enterprises (supra)”***, it was not necessary to resolve whether the 1st Respondent acted without jurisdiction, because the appeal failed on an entirely separate and complete ground — namely the structural impossibility of the relief sought. This Court adopts the same approach. Even assuming the Tribunal acted without jurisdiction, and even assuming its decision was void ab initio, the challenge fails because the adoption of Judgment of the Magistrate's Court is an independent legal instrument that has never been set aside, reviewed nor varied through any lawful process, and certiorari directed at the Tribunal's award cannot reach or undo that Judgment. 3. Once more the application and the entire suit cannot succeed. ***ISSUE No. e). Whether the Applicant has satisfied the threshold for grant of the Judicial Review orders sought.*** 1. First and foremost, it is important to appreciate the meaning of Judicial Review. The concept is based on the fact that administrative excesses must be checked through Judicial intervention. Administrative law relates to decision of offices or organs of Central Government or Public Authorities which may affect the rights or liberties of the citizens and which are enforceable in or organized by the courts of law. Therefore, judicial review is an integral component of administration law. 2. The Black’s Law Dictionary, 9th Edition defines **“Judicial Review”** as: ***“A court’s power to review the actions of other branches or levels of government; esp., the court’s power to invalidate legislative and executive actions as being unconstitutional. 2. The constitutional doctrine providing for this power. 3. A court’s review of a lower courts or an administrative body’s factual or legal findings”.*** 1. **Mark Ryan**, in his book, **‘Unlocking Constitutional and Administrative Law’**, (3rd Routledge/Taylor & Francis Group, 2014) on page 506 defines Judicial Review as: ***“The constitutionally justified as a legal control on the misuse of public law“The constitutionally justified as a legal control on the misuse of public law powers, including both statutory and common law prerogative powers.”*** 1. Judicial review establishes the court's authority to hold the government as well as the subordinate courts and bodies exercising quasi-judicial authority accountable to the law. **Michael Fordham** in his book “***Judicial Review Handbook, 6th Edition, Hart Publishing,******2012”****,* defines judicial review as:- ***“…. The court’s way of enforcing the rule of law: ensuring that public authorities ‟functions are undertaken according to law and that they are accountable to law. Ensuring, in other words that public bodies are not ‘above the law’”*** 1. Before the promulgation of the Constitution 2010, judicial review was governed by the principles of common law largely borrowed from the United Kingdom. The jurisdiction to entertain applications for judicial review remedies was vested in the High Court. The basis of judicial review in Kenya was derived from the Law Reform Act (Cap. 26) Laws of Kenya and Order 53 of the Civil Procedure Rules, 2010 as better developed by case law on the area. Sections 8 and 9 of the Law Reform Act provided the substantive basis while Order 53 provided the procedural basis. The remedies in judicial review were three Prerogative Writs, namely; “***Certiorari”, “Prohibition”*** and ***“Mandamus”.*** The grounds upon which one could base an application for judicial review were under the heads of illegality, irrationality, procedural impropriety and proportionality. 2. The law in this regard was fairly settled as the High Court in the case of:- “***Keroche Industries Limited – Versus - Kenya Revenue Authority & 5 Others, Misc. Civ Appli 743 of 2006; (2007) eKLR”*** had set out what a party needed to demonstrate in order to prove illegality, irrationality, procedural impropriety and proportionality. The Court of Appeal in the case of “***Commissioner of Lands – Versus - Kunste Hotel Limited, Civil Appeal No. 234 of 1995; [1997] eKLR***” had settled that judicial review was only concerned with the decision-making process. In doing so, the Court was paying homage to the words of Lord Hailsham of St. Marylebone in “***Chief Constable of the North Wales Police – Versus - Evans (1982) 1WLR 1155”*** as follows:- ***“The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized by law to decide for itself a conclusion which is correct in the eyes of the Court.”*** 1. After the Promulgation of the Kenyan Constitution 2010 Judicial Review was no longer a common law prerogative, but was now entrenched in the Constitution to safeguard the constitutional principles, values and purposes. In particular, the provision of Article 23 (3)(f) provides for the orders of judicial review as one of the available remedies concerning the enforcement of the bill of rights. Article 47(1) of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 165(6) grants the High Court 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. In 2015, Parliament in adherence to Article 47 of the Constitution enacted the Fair Administrative Action Act, No. 4 of 2014, Laws of Kenya (FAA Act). 2. Also instructive to the application of judicial review, is that Article 10 of the Constitution sets out the national values and principles of governance, key among them being the rule of law. These values and principles bind all State organs, State officers, public officers and all persons whenever any of them applies or interprets this Constitution; enacts, applies or interprets any law; or makes or implements public policy decisions. 3. In the case of:- “[***Dande & 3 others – Versus - Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) (16th June, 2023) (Judgment)***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/40/eng%402023-06-16)***”*** the Supreme Court provided as follows:- ***“[76] We note that judicial review was introduced to Kenya from England in 1956 through Sections 8 and 9 of the Law Reform Act, Cap 26. The jurisdiction to hear and determine judicial review was then vested in the High Court of Kenya. Under this system, the High Court could issue orders of mandamus, prohibition, and certiorari. The grounds for the issuance of such orders were borrowed from common law.*** ***[77] Prior to the promulgation of the Constitution in 2010 there were two legal foundations for the exercise of the judicial review jurisdiction by the Kenyan Courts found in Sections 8 and 9 of the Law Reform Act Cap. 26, which constituted the substantive basis for judicial review of administrative actions on the one hand, and, Order 53 of the Civil Procedure Rules which was the procedural basis of judicial review of administrative actions, on the other hand.*** ***[78] However, the entrenchment of judicial review under the Constitution of Kenya 2010 elevated it to a substantive and justiciable right under the Constitution. Accordingly, judicial review is no longer a strict administrative law remedy but also a constitutional fundamental right enshrined in the Constitution. Thus, Article 47 provides that “every person has a right to an administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.*** ***[79] Furthermore, Section 7 of the Fair Administrative Actions Act provides that:*** ***(1) Any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision to–*** ***(a) a court in accordance with section 8; or*** ***(b) a tribunal in exercise of its jurisdiction conferred in that regard under any written law.*** ***[80] Fundamentally also, Article 23 (3) of the Constitution provides that:*** ***(3) In any proceedings brought under Article 2, a court may grant appropriate relief, including-*** ***(a) a declaration of rights;*** ***(b) an injunction;*** ***(c) a conservatory order;*** ***(d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;*** ***(e) an order for compensation; and*** ***(f) an order of judicial review.*** 1. The role of the Court in Judicial Review is supervisory. Judicial Review is the review by a Judge of the High Court of a decision; proposed decision; or refusal to exercise a power of decision to determine whether that decision or action is unauthorized or invalid. It is referred to as supervisory jurisdiction - reflecting the role of the Courts to supervise the exercise of power by those who hold it to ensure that it has been lawfully exercised. In considering the said issues, it is imperative at the outset to delineate the parameters of this Court’s powers in judicial review. 2. Judicial Review currently is concerned with the manner in which a decision is made and the merits or otherwise of the ultimate decision. As long as the processes followed by the decision-maker are proper, without any biasness, capriciousness, fairness, not acted ultra vires, bad faith, favour and the decision is within the confines of the law, a Court will not interfere. Likewise, if the decision is not proper the court will grant the appropriate remedy. As was held in the case of “***Republic – Versus - Attorney General & 4 others Ex - Parte Diamond Hashim Lalji and Ahmed Hasham Lalji [2014] eKLR”***:- ***“Judicial review applications do not deal with the merits of the case but only with the process. In other words judicial review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters. It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect urges the Court to determine the merits of two or more different versions presented by the parties the Court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved. Therefore judicial review proceedings are not the proper forum in which the innocence or otherwise of the applicant is to be determined and a party ought not to institute judicial review proceedings with a view to having the Court determine his innocence or otherwise. To do so in my view amounts to abuse of the judicial process. The Court in judicial review proceedings is mainly concerned with the question of fairness to the applicant.......”*** 1. The broad grounds for the exercise of judicial review jurisdiction were stated in the case of ***Pastoli – Versus - Kabale District Local Government Council (Supra)***at pages 303 to 304 thus: ***“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety: See Council of Civil Service Union – Versus - Minister for the Civil Service [1985] AC 2; and also Francis Bahikirwe Muntu and others – Versus - Kyambogo University, High Court, Kampala, miscellaneous application number 643 of 2005 (UR).*** ***Illegality is when the decision making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality…..*** ***Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.*** ***Procedural impropriety is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi – Versus - Secretary of State for the Home Department [1990] AC 876).”*** 1. In addition, the parameters of judicial review were addressed by the Court of Appeal in the case of ***Municipal Council of Mombasa – Versus - Republic & Umoja Consultants Limited,******Nairobi Civil Appeal No. 185 of 2001, [2002] eKLR*** as follows: ***“The court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who made the decision have the power, i.e. the jurisdiction to make it? Were the persons affected by the decision heard before it was made? In making the decision, did the decision - maker take into account relevant matters or did he take into account irrelevant matters? These are the kind of questions a court hearing a matter by way of judicial review is concerned with, and such court is not entitled to act as a court of appeal over the decider; acting as an appeal court over the decider would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision – and that, as we have said, is not the province of judicial review.”*** 1. In the case of “***the Dande Case (Supra)”*** the Supreme Court highlighted that:- ***“[85] It is clear from the above decisions that when a party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party files a suit under the provisions of Order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the Court can only limit itself to the process and manner in which the decision complained of was reached or action taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se.*** 1. Broadly, in order to succeed in a Judicial Review proceeding, the applicant will need to show either:- ***“a.the person or body is under a legal duty to act or make a decision in certain way and is unlawfully refusing or failing to do so; or*** ***b. a decision or action that has been taken is 'beyond the powers’ (in latin, ‘ultra vires’) of the person or body responsible for it.”*** 1. In an application for Judicial review the Applicant must be a person with a sufficient interest – (***Locus Standi)*** and who commences proceedings promptly. To support this legal concept on judicial review, I have made indepth references to several literature review and court decisions – “***Pharmaceutical manufacturers Association of South Africa in re- exparte president of Republic of South Africa*** - 2000 S.A. 674 CC at 33 ***Republic – Versus - Speaker of the Senate and Another Ex - Parte Afrison Export Import Limited 2018 eKLR Republic –Versus- Stanley Mambo Amuti (2018) eKLR.”; the Kenya National Examination Council – Versus - Republic (Ex - Parte - Geoffrey Gathenji & Another Nairobi Civil Appeal No. 266 of 1996.*** 2. The Court does not issue orders in vain even where it has jurisdiction to issue the prayed orders and would refuse to grant judicial review remedy when it is not necessary, or where issues have become academic exercise; or serves no useful or practical significance. Since the court exercises a discretionary jurisdiction in granting prerogative order it can withhold the gravity of the order where among other reasons there has been delay and where a public body has done all that it can be expected to do to fulfil its duty or where the remedy is not necessary or where its path is strewn with blockage or where it would cause administrative chaos and public inconvenience or where the object for which application is made has already been realized. 3. An administrative or quasi-judicial decision can only be challenged for its ***illegality, irrationality****and****procedural impropriety.***An administrative decision is flawed if it is illegal. A decision is illegal if it: - ***(a) contravenes or exceeds the terms of the power which authorizes the making of the decision;*** ***(b) pursues an objective other than that for which the power to make the decision was conferred;*** ***(c) is not authorized by any power;*** ***(d) contravenes or fails to implement a public duty.*** 1. As stated above, this court has powers under the provision of Sections 8 and 9 of the Law Reform Act, Cap. 26 of the Laws of Kenya to issue prerogative writ of Certiorari, which brings into this court to quash a decision which is ultra vires. A writ of prohibition intended to forbid or prevent an action by a public officer from taking place is granted alongside Certiorari, since it’s a similar remedy but more prospective than retrospective. While certiorari looks at the past, prohibition looks at the future. The provision of Section 8 of the Law Reform Act, also provides for a writ of prohibition which primarily prohibits a tribunals, judicial bodies or subordinate courts from doing or taking an action in excess of its jurisdiction. In the book of “**Administrative Law”, Sir. W. Wade and C. Forsyth, Page 605 noted that:-** ***“I can see no difference in principle between Certiorari and Prohibition, except that the latter may be invoked at an earlier stage. If the proceedings establish that the body complained of is exceeding its jurisdiction by entertaining matters which would result in its final decision being subject to being brought up and quashed on certiorari. I think that prohibition will lie to restrain it from so exceeding its jurisdiction.*** ***Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of that power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself.”*** 1. The legal efficacy and scope of the statutory order of Mandamus, Prohibition and Certiorari are remedies granted by High Court to persons inferred by the exercise of administrative of judicial powers. These prerogative orders are only available against public bodies. Their origins lie in the expansion of common law in England and the jurisdiction of the Court of King Bench to acquire Superintendence over the observance of law by officials. These orders are predicated upon the fact that without law, society cannot function with fundamental values such as social order, social justice and personal freedom. Today public authorities determine an overwhelming extent how much of these values are enjoyed. Their decision affect vast numbers of people collectively and individually “***Ipso Facto”*** unlawfully decision, must be available to Judicial Scrutiny hence judicial Review. The social need for how and the protection of legality is violated when a public official exceeds his/her authority or does not use his/her power in the prescribed manner. **The writ of Certiorari.** 1. The prerogative writs of ***“Certiorari”*** derives from the Latin word ***“Certiorari”*** which means to be certified, informed, appraised or shown. Both in its embryonic days and today, the order, initially and prerogative writ was inferior courts and required the proceedings of that to be transferred to the High Court and examined for validity. It meant the decision would be quashed. From the Provisions of Order 53 of the Civil Procedure Rules the Applicant ought to move court within a period of six (6) months from the time the order, decree, judgment, conviction or other proceeding was made. Under the provision of Order 53 Rule 7 of Civil Procedure Rules, which provides:- 2. **In the case of an application for an order of certiorari to remove any proceedings for the purpose of their being quashed, the applicant shall not question the validity of any order, warrant, commitment, conviction, inquisition or record, unless before the hearing of the motion he has lodged a copy thereof verified by affidavit with the registrar, or accounts for his failure to do so to the satisfaction of the High Court.** 3. **Where an order of certiorari is made in any such case as aforesaid, the order shall direct that the proceedings shall be quashed forthwith on their removal into the High Court.** 4. This provision, requires that any party seeking an order of Certiorari must annex to his application a copy of the order or decision he seeks to challenge or if does not, he must give to court a satisfactory reason for that failure. Order 53 Rule 7 is a precondition to seeking an order of Certiorari and failure to comply renders the entire application incompetent since the court is not in a position to determine whether there in fact existed an order capable of being quashed. The rationale behind it is to enable court satisfy itself of the existence of the orders or decision their contents and whether the application was filed in time. **The Writ of Prohibition** 1. The Order of ***“Prohibition”*** issues where there are assumption of unlawful jurisdiction or excess of jurisdiction. It’s an order from the High Court directed to an inferior tribunal or body. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction. 2. In a nutshell Judicial Review is the means by which High Court judges scrutinize public law functions intervening as a matter of discretion to quash, prevent, require and/or classify not because they disagree with the judgment but so as to right a recognizable public law wrong. This public law wrong could be unlawfulness, unreasonableness or irrationality, unfair hearing, ultra vires bad faith, unfairness, made or arrived at out of excess powers (ultra vires) biasness, capriciousness or un Judicially. 3. Having exhaustively set out the legal framework governing Judicial Review and the nature and scope of the prerogative writs of Certiorari and Prohibition, this Honourable Court now turns to the application of the said principles to the facts and circumstances of the present case and whether the same can be issued. 4. For the reasons set out above, this Court finds that the orders of Certiorari sought cannot, without more, provide the Applicant with the substantive relief he desires. The adoption judgment of the Senior Resident Magistrate's Court of 26th February 2009, which is the operative instrument on which any implementation by the 3rd Respondent would be founded, stands unchallenged by any competent appellate process. Until that judgment is set aside, quashing the underlying Tribunal award by certiorari would produce an incoherent legal outcome. In the words of the Court of Appeal in Rift Valley Enterprises, a court does not grant remedies that cannot afford the relief sought. 5. On the prayer for Prohibition, this Court further notes that prohibition is prospective in nature — it cannot restrain the implementation of an unchallenged court judgment. The 3rd Respondent would be entitled to implement the Magistrate's Court judgment of 26th February, 2009 regardless of any order prohibiting reliance on the Tribunal's award, since that judgment is an independent source of authority. 6. In the circumstances, the Applicant has not satisfied the threshold for grant of the Judicial Review orders sought. ***ISSUE No. f). Who will bear the costs of this suit*** 1. It is now well established that the issue of Costs is at the discretion of the Court. Costs mean the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The Black Law Dictionary defines cost to means:- **“the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”.** 1. The proviso of Section 27 of the Civil Procedure Act, Cap. 21 provides as follows:- **“(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.”** 1. By the event, it means the outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of ***“Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR*** and ***“Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR***, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of ***“Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR***, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 2. In***“Machakos ELC Pet No. 6 of 2013 Party of Independent Candidate of Kenya & another – Versus - Mutula Kilonzo & 2 others [2013] eKLR”***quoted the case of ***“Levben Products – Versus -Alexander Films (SA) (PTY)Ltd 1957 (4) SA 225 (SR) at 227”***the Court held:- ***“It is clear from authorities that the fundamental principle underlying the award of costs is two-fold. In the first place the award of costs is matter in which the trial Judge is given discretion (Fripp – Versus - Gibbon & Co., 1913 AD D 354). But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could have come to the conclusion arrived at….In the second place the general rule that costs should be awarded to the successful party, a rule which should not be departed from without the exercise of good grounds for doing so.”*** 1. In the present case, although the Interested Parties have succeeded, the dispute concerns ancestral land and raises important jurisdictional questions regarding the powers of the former Land Disputes Tribunals. 2. Taking into account the history of the dispute and in order to promote substantive justice, the Court directs that each party shall bear its own costs. In the circumstances, this Court is persuaded that this is a proper case to depart from the general rule that costs follow the event. In the interests of justice, fairness, and finality, each party shall bear its own costs of the suit and of the Preliminary Objection. 3. **Conclusion and disposition**. 4. Ultimately, having caused such an in-depth analysis to the framed issues herein, for avoidance of doubt, the Honourable Court accordingly proceeds to issue the following specific orders: - 5. **THAT the Notice of Preliminary Objection dated 24th October 2025 filed by the Interested Parties be and is hereby upheld to the extent that the Application is not competent in its present form. The Preliminary Objection on limitation, structural impossibility of relief, and the sub judice nature of the proceedings succeeds.** 6. **THAT Judgement be and is hereby entered to the effect that the Originating Motion for Judicial Review dated 5th June 2025, together with all orders sought therein hence it is dismissed.** 7. **THAT given the long history of this dispute and the nature of the issues raised, each party shall bear its own costs of the Judicial Review proceedings and the Preliminary Objection.** **IT IS ORDERED ACCORDINGLY.** **JUDGEMENT DELIVERED VIRTUALLY THROUGH THE MICRO SOFT TEAMS, SIGNED AND DATED AT KWALE THIS .........15TH.....DAY OF .... JUNE .... 2026** **……………………………….** **HON. MR. JUSTICE L.L NAIKUNI** **ENVIRONMENT AND LAND COURT,** **AT** **KWALE** **Judgement delivered in the presence of:** 1. Mr. Daniel Disii, the Court Assistant. 2. Mr. Omondi Advocate for the Ex – Parte Applicant. 3. Mr. Otieno Advocate for the 1st, and 2nd Interested Parties. 4. No appearance for the 1st, 2nd, 3rd and 4th Respondents.