https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5045

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** # ELCL MISC E022 OF 2026 **IN THE MATTER OF APPLICATION FOR JUDICIAL REVIEW REMEDIES OF MANDAMUS, CERTIORARI & PROHIBITION** **BETWEEN** **DAN MAURICE HAYA** **TOM MBOYA NYAWANDA** ##### ESTHER MORAA MIRORO.................................EX PARTE APPLICANTS **AND** **THE LAND REGISTRAR, KISUMU................................1ST RESPONDENT** **THE REGIONAL/COUNTY SURVEYOR,** **KISUMU COUNTY...............................................................2ND RESPONDENT** **MAURICE ODUOR OMONDIH.........................................3RD RESPONDENT** **RULING** **Introduction** [1] Before this Court is a Chamber Summons dated 4th May 2026, brought by the ex parte Applicants, Dan Maurice Haya, Tom Mboya Nyawanda, and Esther Moraa Miroro. The application is grounded in Sections 1A, 1B, and 3A of the Civil Procedure Act (Chapter 21 of the Laws of Kenya), Order 53 Rules 1(1), 1(2), and 4 of the Civil Procedure Rules 2010, and the Law Reform Act (Chapter 26 of the Laws of Kenya). By this application, the ex parte Applicants seek the following orders: 1. [spent] 2. That leave be granted to the Applicants to apply for the following judicial review orders: - 3. An order of judicial review proceedings in the nature of certiorari do issue to quash the Respondents' decision and prohibit the Respondents from proceeding with implementation of the report made on 2/10/2025 referenced ground report on parcel numbers Ksm/Konya/9444, 7778 and 7780 and the report made on 22/4/2026 referenced ground report on parcels Nos. 9444 vs. 9443, 9101, 7780, 7778. 4. Leave be granted to the Applicants to apply for judicial review orders of prohibition barring the Respondents from interfering with the applicants’ land titles numbers Kisumu/Konya 7778, 7779 and 7789 and other rights that the applicants are entitled to by virtue of being the bona fide registered owners of the said land parcels. 5. Leave be granted to the applicants to apply for a judicial review order of prohibition prohibiting the Respondents from relying on and/or effecting the decision contained in the report made on 2/10/2025 referenced ground report on parcels Nos. 9444 Vs. 9443, 9101, 7780, 7778 and/or from changing the relevant land registration records in their respective departments. 6. That leave be granted to the Applicants to apply for a judicial review order of prohibition, prohibiting the 3rd Respondent from exercising proprietary rights over the alleged disputed boundary between the 3rd Respondent and the ex parte Applicants. 7. An Order of mandamus compelling the 1st and 2nd Respondents to make available to the Applicants the minutes of the defunct meetings held regarding the boundaries herein, indicating all the relevant processes followed in reaching the reports dated 2/10/2025 and 22/4/2026. 8. That grant of leave to apply for orders of certiorari, prohibition and mandamus as prayed for herein do operate as stay of the reports of the 1st and 2nd Respondents made on 2/10/2025 and 22/4/2026 and any other decision/report pertaining to the land parcels named above and sought to be impugned by these proceedings. 9. That the Court be pleased to issue further orders as may be necessary to ensure compliance with any orders issued herein, specifically. 10. Costs of this application be borne by the Respondents. **The Application** [2] The application is supported by the grounds stated in the chamber summons, the statutory statement, and the supporting affidavit sworn on 4th May 2026 by the Ex Parte Applicants, and by a supplementary affidavit sworn on. They depone that they are the registered owners of land parcel numbers Kisumu/Konya/7778, Kisumu/Konya/7779, and Kisumu/Konya/7780. They aver that these three parcels arose from a subdivision of a larger tract, Kisumu/Konya/5200. This parent parcel was originally owned by the late Walter Richard Nyawanda Ajugu, who is the father of the three Applicants. The Applicants depone that they were gifted their respective subdivisions by their late father. [3] The Applicants aver that on various dates, specifically the 2nd of October 2025 and the 22nd of April 2026, the Respondents held meetings and deliberated on a purported land boundary dispute between the Applicants and the 3rd Respondent, who claims ownership of the neighbouring parcel, Kisumu/Konya/9444. [4] The Applicants state that on 22nd April 2026 they became aware of an adverse report dated 2nd October 2025. The report records that the 1st and 2nd Respondents, together with their agents and security personnel, visited the suit properties. The visit was to place beacons marking the boundaries between the Applicants’ parcels 7778, 7779, and 7780 and parcel 9444, claimed by the 3rd Respondent. The Applicants assert that the 1st and 2nd Respondents attempted to review, redefine, and alter these boundaries, which would likely reduce the size of their parcels and, in effect, increase the size of the 3rd Respondent’s parcel. They also note that the 2nd October 2025 report does not mention several nearby parcels, including central Kisumu/Konya/7779, 9101, and 9443, yet it purports to modify the boundaries affecting their properties. [5] The Applicants averred that the Respondents did not issue any prior statutory notice of their intention to alter the boundary, nor were they afforded a hearing or any opportunity to defend their proprietary rights before the adverse decisions were reached and the reports compiled. [6] The Applicants further highlight that the 3rd Respondent filed a Notice of Motion dated 15th January 2026, seeking to enforce the earlier decision of the 1st and 2nd Respondents in the Winam Law Courts, in Miscellaneous Civil Case Number E005 of 2026. They contest the jurisdiction of the Magistrate’s Court to entertain land boundary disputes. In a supplementary affidavit sworn on the 8th of July 2026, the Applicants amplify this jurisdictional challenge. **Summary of the Reply** [6] The 3rd Respondent responded on 15thMay 2026, with a replying affidavit, asserting that he is the registered owner of Kisumu/Konya/9444. He explained that he wished to build a fence around his property but was uncertain about the exact physical boundaries on the ground. Consequently, he applied to the Winam Magistrate’s Court, requesting that the County Land Registrar and the County Land Surveyor visit the site to officially establish the boundaries between his parcel (9444) and the neighbouring parcels (7778 and 7780), owned by the Applicants. He highlighted that the Magistrate’s order mandated the presence and participation of all involved parties during the boundary determination exercise. [7] The 3rd Respondent asserted that the orders sought by the Applicants cannot be granted because the application is time-barred under Order 53 Rule 2 of the Civil Procedure Rules, 2012, as it fell well outside the mandatory six-month statutory window, particularly in relation to the initial surveyor’s report, which he traces to the site visit conducted on the 2nd of October 2025. [8] The 3rd Respondent argued that the application is unfounded, legally invalid, and an abuse of the court process because the issue is already before another court. He states that the Applicants have concurrently filed an application in the Magistrate’s Court to overturn the orders issued by the trial court that led to the surveyor’s reports. Accordingly, the 3rd Respondent requests that the application be dismissed with costs. **Analysis and Determination** [9] The primary issue for determination is whether the leave sought by the ex parte Applicants to commence judicial review proceedings should be granted, and whether such leave should operate as a stay of the impugned administrative actions. ### **The Threshold for Leave in Judicial Review** [10] The general principle guiding the grant of leave to apply for Judicial Review in an application brought under Sections 8 and 9 of the Law Reform Act and Order 53 Rules 1 and 2 of the Civil Procedure Rules 2010 is well established in our jurisprudence. Leave is a mandatory statutory prerequisite before commencing substantive judicial review proceedings. At this preliminary stage, the Court is tasked with determining whether the Applicant has established an arguable case. An arguable case does not mean a case that must necessarily succeed at the end of the day, but one that merits the full attention of the Court upon the filing of the substantive motion. [11] Before examining whether an arguable case exists, the Court must first address the preliminary point raised by the 3rd Respondent, which, if successful, would render the entire application fatal. The 3rd Respondent contends that the orders sought cannot be granted because the application is time-barred. The 3rd Respondent grounds this argument on the fact that the surveyor’s initial physical site visit occurred on the 2nd of October 2025. [12] The Court’s jurisdiction to grant leave to file an application for an order of certiorari is limited by the provisions of Order 53 Rule 2 of the Civil Procedure Rules, which provides as follows: *“Leave shall not be granted to apply for an order of certiorari to remove any Judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the Judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”* [13] According to the supporting and supplementary affidavits, while the Regional Survey Office, Kisumu, conducted its fieldwork on the 2nd of October 2025, the surveyor did not prepare a report that day. The cover letter from the Regional Surveyor, addressed to the Principal Magistrate, Kisumu, indicates that this report was submitted on the 12th of January 2026. Further, the County Land Registrar scheduled a meeting for boundary determination on the 22nd of April 2026. [14] Calculating the statutory six-month period from either the date of the formal surveyor's report (12th January 2026) or the subsequent statutory summons (30th March 2026), this Court concludes that the instant application, filed on 4th May 2026, was presented to this Court well within the time mandated by Order 53 Rule 2. [15] Having surmounted the hurdle of the time limitation, the Court now turns to assess whether the ex parte Applicants have presented an arguable case that warrants the grant of leave. The Applicants advance two legal arguments. Firstly, they argue that a Magistrate’s Court inherently lacked jurisdiction to entertain the boundary disputes and to issue orders compelling the Land Registrar to demarcate land. [16] Secondly, the Applicants allege a fundamental breach of natural justice, as they were denied the right to be heard before their property rights were adversely affected. They argue that they were never given statutory notice or a fair hearing before decisions were made to physically alter the boundaries. The Court is thus satisfied that the Applicants have met the threshold for an arguable case and are entitled to pass through the gateway of leave to present their substantive motion. ### **Leave Operating as a Stay** [17] The final issue concerns the Applicants’ ex parte prayer that the grant of leave should operate as a stay of the impugned reports and intended administrative actions. The law on the grant of leave to operate as a stay is now well established. The central pillar of this doctrine is the preservation of the substratum of the suit to ensure that the court's final decision is not rendered an exercise in futility. In ***James Mburu Gitau t/a Jambo Merchant v Subcounty Public Health Officer, Kiambu County [2013] eKLR,*** the court held that leave to operate as a stay may be granted only if the Applicants show that the application will be rendered nugatory, or that the outcome of the judicial review will be rendered nugatory. [18] The Court in ***James Mburu*** cited ***Miscellaneous Application No. 363 of 2013 In Re: Meridian Medical Centre,*** where it was held that: ***“....it is only where the imminent outcome of the decision challenged is likely to render the success of the judicial review nugatory or an academic exercise that the Court would stay the said proceedings the strength or otherwise of the applicant’s case notwithstanding......It must be shown that the probability of a determination being made in the challenged proceedings, are high and such probability cannot be said to have been achieved on mere conjecture and speculation. It follows that the stage at which the said proceedings have reached may be crucial in determining whether or not to grant the stay sought though that is not the determinant factor.”*** [19] The position in this matter is that if this Court were to grant leave but decline to issue a stay, the Respondents would be at liberty to execute their administrative decisions immediately. By the time the substantive judicial review motion is filed, heard, and determined, the substratum of the application may have been irrevocably altered. Should the Applicants eventually succeed in their substantive judicial review application, the issuance of an order of certiorari quashing the surveyor’s decision would be purely academic. ## **Final Orders** [20] In the final analysis, having considered the application, the statutory framework, and the precedents governing judicial review, the Court finds the application merited and that leave should be granted. Consequently, I make the following final orders: 1. Leave is hereby granted to the ex parte Applicants to apply for the judicial review orders of certiorari, prohibition, and mandamus as specifically prayed for in paragraphs 2(a) through 2(e) of the application. 2. The grant of leave herein shall operate as a stay of the implementation of the reports of the 1st and 2nd Respondents dated 2nd October 2025 and 22nd April 2026, and shall further operate as a stay of any consequent administrative actions, beacon placements, or boundary alterations relating to land parcels Kisumu/Konya/7778, 7779, 7780, and 9444, pending the hearing and final determination of the substantive judicial review application. 3. The substantive Notice of Motion for Judicial Review shall be filed and served upon all Respondents within twenty-one (21) days from the date of this ruling. 4. The costs of this application shall abide the final outcome of the substantive application. **Delivered virtually, signed and dated this 30th day of July 2026** **C.C. Oluoch** **Judge** In the presence of: Ms Oyugi holding brief for Mr Jonyo for the Applicant Faith Court Assistant In the absence of the Respondent