Mwagoyo v Kwale District Survey Department & 3 others (Judicial Review Miscellaneous Application 68B of 2010) [2026] KEHC 11329 (KLR) (24 July 2026) (Ruling)

Mwagoyo v Kwale District Survey Department & 3 others (Judicial Review Miscellaneous Application 68B of 2010) [2026] KEHC 11329 (KLR) (24 July 2026) (Ruling) Neutral citation: [2026] KEHC 11329 (KLR) Republic of Kenya In the High Court at Mombasa Judicial Review Miscellaneous Application 68B of 2010 J Ngaah, J July 24, 2026 Between Hassan Juma Mwagoyo Applicant and Kwale District Survey Department 1st Respondent The Hon. Attorney General 2nd Respondent and The Land Registrar, Kwale 1st Interested Party Pauma Investment Company Limited 2nd Interested Party Ruling 1.The application that is the subject of this ruling is the notice of motion dated 26 August 2025 filed by Pauma Investment Company Limited, which describes itself in the motion as the "applicant/intended 2nd interested party" and to which I shall refer simply as "the applicant". The motion is expressed to be brought under sections 1A, 1B, 3A and 80 of the Civil Procedure Act, Order 1 rule 10, Order 45 rule 1 and Order 51 of the Civil Procedure Rules, and section 4(4) of the Limitation of Actions Act, chapter 22 of the Laws of Kenya. Shorn of the prayers that are spent, the substantive orders sought are, first, that this court grants leave for the joinder of the applicant to these proceedings; secondly, that upon such joinder being effected, the court reviews, varies and/or sets aside in its entirety the ruling delivered on 22 November 2010 by Hon. Justice M. K. Ibrahim (as he then was), together with all consequential orders emanating therefrom; and, thirdly, in the alternative, that the court declares the said ruling and the order dated 1 April 2014 invalid, or declares any further execution or implementation of the resulting order or decree presented after twelve years invalid for being caught up by limitation under section 4(4) of the Limitation of Actions Act. The applicant also asks for the costs of the application. 2.The motion is supported by the grounds on its face and the affidavit of Pauline Njeri Matu sworn in support of it. The applicant’s case, in summary, is that it purchased the parcel of land known as Kwale/Diani/SS/144 from one John Mwangi Mbua for valuable consideration of Kshs. 1,200,000 pursuant to an agreement for sale dated 4 November 2009 and was registered as its proprietor; that it thereafter applied for and obtained subdivision of the parcel into the resultant parcels Kwale/Diani/SS/2147 to 2166; that it was neither joined nor served in the judicial review proceedings instituted in this cause by Hassan Juma Mwagoyo (now deceased), which proceedings were heard ex parte and culminated in the ruling of 22 November 2010; that it only became aware of that ruling in April 2025 when the legal representative of the deceased ex parte applicant, one Salim Hassan Mwagoyo, procured a new title over the suit property on the strength of the impugned orders; and that the ruling was obtained through material non-disclosure and suppression of facts and in violation of the applicant’s right to be heard under Article 50 of the Constitution. It is on this account that the applicant seeks to be joined to these proceedings and to have the ruling reviewed and set aside. 3.The background against which the motion is brought may be shortly stated. By a notice of motion dated 20 April 2010, Hassan Juma Mwagoyo, the ex parte applicant, moved this court for judicial review orders challenging the subdivision of his property, Kwale/Diani/SS/144, as reflected in a Registry Index Map dated 1 March 2010. Leave to institute the proceedings had been granted on 19 April 2010. Although the respondents and the interested party were served, none of them entered appearance or participated in the proceedings, and the matter proceeded ex parte. In the ruling delivered on 22 November 2010, the court issued an order of certiorari quashing the Registry Index Map dated 1 March 2010 purporting to subdivide the parcel into Kwale/Diani/SS/2147 to 2166; directed that the land revert to its original registration as Kwale/Diani/SS/144 in the name of the ex parte applicant; prohibited the respondents, their agents or any government department from recognising, dealing with or acting on the basis of the impugned subdivisions; directed the Land Registrar, Kwale, to cancel any entries or titles relating to the subdivisions and to reinstate the original record in the name of the ex parte applicant; and awarded him the costs of the application. 4.The applicant/respondent opposed the motion by way of a notice of preliminary objection dated 21 October 2025 in which he contended, first, that the application contravenes section 7 of the Limitation of Actions Act and, secondly, that it is res judicata the suit property having been substantially dealt with in Kwale ELC Case No. E045 of 2025, Pauma Investment Company Limited v Salim Hassan Mwagoyo & The Land Registrar, Kwale District. The objection and the motion were canvassed by way of written submissions. 5.In his submissions dated 8 December 2025, the applicant/respondent urged that the applicant’s claim, being one for recovery of land, was caught by the twelve-year limitation period prescribed by section 7 of the Limitation of Actions Act; that it was inconceivable that a party claiming proprietary rights over the suit property would have remained ignorant of the ruling for a period of fifteen years; that, in any event, on the applicant’s own account it learnt of the ruling in April 2025 yet waited a further four months before filing its application; and that the applicant is a busybody bent on abusing the court process. On res judicata, counsel relied on section 7 of the Civil Procedure Act and the decisions in DSV Silo v The Owners of Sennar [1985] 2 All ER 104, Bernard Mugo Ndegwa v James Nderitu Githae & 2 others [2010] eKLR, Henderson v Henderson [1843] 67 ER 313 and Omondi v National Bank of Kenya Ltd & others [2001] EA 177, submitting that the issues raised in the motion had already been raised and substantially dealt with in the Kwale ELC case, and invoking Order 2 rule 15 of the Civil Procedure Rules on striking out of pleadings that are scandalous, frivolous, vexatious or otherwise an abuse of the process of the court. 6.The applicant, on its part, submitted that the preliminary objection did not meet the threshold of a proper preliminary objection as defined in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 because both limitation and res judicata, as raised, called for the investigation of contested facts; that section 7 of the Limitation of Actions Act was inapplicable because the motion does not seek to recover land but to set aside an ex parte judicial review order obtained through non-disclosure and in violation of the right to be heard; that an irregular judgment entered against a party that was never served is set aside ex debito justitiae, for which proposition counsel cited, among others, Mbogo & another v Shah [1968] EA 93 and James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] eKLR; that by dint of section 26 of the Limitation of Actions Act time did not begin to run until April 2025 when the fraud was discovered, upon which the motion was filed; and that the plea of res judicata must fail because the applicant was never a party to, or heard in, these proceedings and because Kwale ELC Case No. E045 of 2025 is still pending before the Environment and Land Court and cannot, therefore, constitute a former suit that has been heard and finally determined. 7.I have considered the motion, the preliminary objection and the rival submissions. Although the objection was argued on the twin grounds of limitation and res judicata, there is, in my view, a question that logically precedes both of those grounds and which goes to the very competence of the motion: it is whether the orders sought in the motion are available to the applicant in law at all. The question is jurisdictional in nature, and it is trite that a question of jurisdiction may be raised at any stage of the proceedings and that the court is entitled, indeed bound, to consider it at the earliest opportunity, even of its own motion. As it was famously put in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, jurisdiction is everything, and without it a court has no power to make one more step; it must down its tools the moment it holds that it is without jurisdiction. 8.The ruling sought to be reviewed was made in the exercise of this court’s judicial review jurisdiction. At the time the judgment sought to be reviewed was rendered, that jurisdiction was donated by sections 8 and 9 of the Law Reform Act, chapter 26 of the Laws of Kenya; Order 53 of the Civil Procedure Rules did no more than regulate the procedure by which the jurisdiction was invoked and exercised. It follows that the question of what remedies are open to a person dissatisfied with an order made in the exercise of that jurisdiction must be answered by reference to that statute, it being the law that applied at the material time. Section 8(5) of the Law Reform Act provides as follows:“Any person aggrieved by an order made in the exercise of the civil jurisdiction of the High Court under this section may appeal therefrom to the Court of Appeal.” 9.Two things are immediately apparent from this provision. The first is that the remedy which the legislature provided to a person dissatisfied with an order made in the exercise of the court’s judicial review jurisdiction is an appeal to the Court of Appeal, and nothing else. The Law Reform Act does not provide for review of an order made granting or rejecting an application for judicial review reliefs. The second, which is of particular significance on the facts of this application, is that the right of appeal conferred by section 8(5) is not restricted to the parties to the suit in the High Court; it is available to “any person aggrieved” by the order, which necessarily includes a person who, like the applicant, was not a party to the proceedings in which the order was made. The legislature, in other words, anticipated the very complaint upon which this motion is founded. A person whose interests are adversely affected by a judicial review order made in proceedings to which he was not a party is not left without a remedy; his remedy lies in an appeal to the Court of Appeal. 10.Where the law has prescribed the avenue for the redress of a grievance, that avenue must be followed. The principle was stated by the Court of Appeal in Speaker of the National Assembly v James Njenga Karume [1992] KLR 21 in the following terms:“…where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.” 11.On the applicant’s own account, it learnt of the impugned ruling in April 2025. From that moment, nothing stood in the way of its pursuing the remedy that the law gave it, namely, an appeal to the Court of Appeal, accompanied, if need be, by an application for extension of time within which to appeal. No reason has been provided by the applicant as to why it could not comply with the law and appeal; instead, it has elected to seek to be joined to a suit that was heard and concluded close to fifteen years before its motion was presented. 12.That election is untenable for a further reason. Joinder of a party presupposes the existence of pending proceedings in which the party joined will be heard in the determination of the questions in issue. These proceedings terminated upon the delivery of the ruling on 22 November 2010, subject only to the appeal that the statute contemplates. There is, therefore, no suit pending before this court to which the applicant can be joined. Where the questions in a suit have been finally determined, joinder can serve no purpose other than the impermissible one of reopening the concluded decision through a route that the law does not provide. 13.The provisions of the Civil Procedure Act and the Civil Procedure Rules upon which the motion is anchored cannot fill this gap. Section 80 of the Act and Order 45 of the Rules confer and regulate the review jurisdiction in respect of decrees and orders made under the Civil Procedure Act; the ruling in question was made under the Law Reform Act, whose only prescribed recourse is the appeal under section 8(5). Neither can sections 1A, 1B and 3A of the Civil Procedure Act — the overriding objective and the inherent power of the court — be pressed into service for the purpose; the inherent power of the court is exercised in aid of a jurisdiction that exists, and is not itself a source of a jurisdiction that the applicable statute has withheld. 14.Even if a review jurisdiction were available, which, for the reasons I have given, it is not, the time factors attending this application would weigh decisively against the applicant. The judgment sought to be reviewed was delivered on 22 November 2010; the application was not made until 26 August 2025, a period of close to fifteen years. An application of this nature must, on any view, be made without unreasonable delay. Even taking the applicant’s account at its face value, that it became aware of the ruling in April 2025, it has offered no explanation whatsoever for the further period of four months that it took to approach the court, a delay which the applicant/respondent was entitled to characterise as unexplained. 15.The alternative prayer, by which the applicant seeks a declaration that the ruling and the order dated 1 April 2014 are invalid, or that any execution or implementation of the resulting order or decree after the lapse of twelve years is barred by section 4(4) of the Limitation of Actions Act, stands on no better footing. It is sought within these concluded proceedings by a person who is not a party to them, and it presupposes the joinder which, for the reasons already given, is not available. Whether the decree arising from the ruling can lawfully be executed after the lapse of time is a question that can only be raised by a person properly before the court and in appropriate proceedings; it cannot be reached through an incompetent motion. 16.The conclusion I have come to is that the notice of motion dated 26 August 2025 is incompetent and this court has no jurisdiction to grant the orders sought in it. Having reached that conclusion, it is unnecessary to determine the grounds upon which the preliminary objection was argued, namely, limitation under section 7 of the Limitation of Actions Act and res judicata; those grounds would only have fallen for consideration had the motion been otherwise properly before the court. 17.In the result, the notice of motion dated 26 August 2025 is hereby struck out with costs to the applicant/respondent. It is so ordered. SIGNED, DATED AND DELIVERED ON 24 JULY 2026NGAAH JAIRUSJUDGE