https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4700

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MAKUENI** **ELCLJR NO. E016 OF 2025** ***IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT*** ***-AND-*** ***IN THE MATTER OF THE LAND ADJUDICATION ACT CAP 284 LAWS OF KENYA*** ***-AND-*** ***IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW TO BRING INTO THIS HONOURABLE COURT FOR PURPOSES OF BEING QUASHED THE DECISION OF THE DEPUTY COUNTY COMMISSIONER MUKAA, MAKUENI COUNTY WITH RESPECT TO THE KILOME ADJUDICATION SECTION IN LAND APPEAL CASE NUMBER 14 OF 1999 DELIVERED ON 29/10/2025*** ***-BETWEEN-*** **JOHN KIMONGU MULINGE …………………………………….APPLICANT** **-VERSUS-** **CABINET SECRETARY, MINISTRY OF LANDS** **AND PHYSICAL PLANNING ……………………..……….1ST RESPONDENT** **DEPUTY COUNTY COMMISSIONER, MUKAA ……….2ND RESPONDENT** **DIRECTOR OF LAND ADJUDICATION** **AND SETTLEMENT ……………………………………..…3RD RESPONDENT** **CHIEF LAND REGISTRAR …………………………….....4TH RESPONDENT** **HONOURABLE ATTORNEY GENERAL ………………..5TH RESPONDENT** **-AND-** **TIMOTHY MUKUNA KAKUI (REPRESENTED BY JOYCE MUKULU KILONZO)........................................................................INTERESTED PARTY** **JUDGMENT** 1. The Applicant filed an Originating Motion dated 17th December, 2025 under the provisions of Sections 7(a), 9(1), 10 and 12 of the Fair Administrative Action Act and Rules 4, 6(1)(2)(2) as read with Rules 11, 13(1) and (2) of the Fair Administrative Action Rules, 2024. The Applicant seeks issuance of the following orders against the Respondents: - 2. **[*SPENT*]** 3. **THAT this judicial review application be deemed properly filed under the doctrine of discoverability to challenge the decision/judgment of the 1st and 2nd Respondents which was made on 29th October, 2025 in the absence of and without the knowledge of the Applicant in Adjudication Land Appeal to the Minister Case Number 14 of 1999 with respect to Kilome Adjudication Section situate within Makueni County.** 4. **[*SPENT*]** 5. **THAT an Order of Prohibition be issued prohibiting the 3rd Respondent Director of Land Adjudication and Settlement and the 4th Respondent Chief Land Registrar from implementing and enforcing the impugned decision/judgment of the 1st and 2nd Respondents which was made on 29th October, 2025 in Adjudication Land Appeal to the Minister Case Number 14 of 1999 with respect to the Kilome Adjudication Section situate within Makueni County.** 6. **THAT an Order of Certiorari be issued to remove into this Honourable Court for purposes of being quashed the impugned decision of the 1st Respondent Cabinet Secretary Ministry of Lands and Physical Planning and the 2nd Respondent Deputy County Commissioner – Mukaa Sub-County, Makueni County which was made on 29th October, 2025 in Adjudication Land Appeal to the Minister Case Number 14 of 1999 with respect to Kilome Adjudication Section situate within Makueni County.** 7. **THAT the Applicant be granted the costs of this application.** 8. The application is supported by affidavit the affidavit of John Kimongu Mulinge sworn on 17th December, 2025. The deponent averred that the dispute herein relates to land Parcel No. 253 within Kilome Adjudication Section. He averred that the suit property was the subject of objection proceedings No. 2 before the District Land Adjudication and Settlement Officer and a judgment was subsequently delivered on 21st October, 1994. That despite the objection proceedings having been conclusively determined in 1994, an appeal to the Minister Case No. 14 of 1999 was purportedly lodged. 9. It is the Applicant’s case that the Appeal to the Minister was lodged approximately five years outside the statutory 60-day period. He averred that neither the Minister nor his appointed delegate had the power to extend time under Section 29 of the Land Adjudication Act. That the 2nd Respondent proceeded to hear and determine the appeal rendering the impugned decision on 29th October, 2025. The Applicant contended that during the hearing, he was cross-examined afresh on new factual narratives which were not part of the objection record. That under Regulation 4 (4) fresh evidence may only be admitted with leave of the Minister. 10. The Applicant further contended that Joyce Mukulu Kilonzo had no letters of administration to represent Timothy Mukuna Kakui yet she prosecuted, tendered evidence and was ultimately awarded registration of the suit property to hold in trust. That the appeal to the Minister was revived in the year 2025 after it had been withdrawn in the year 2020 vide an agreement dated 19th February, 2020 between the Applicant and Jasper Mukuna who had lodged the appeal on behalf of the late Timothy Mukuna Kakui. The Applicant asserted that the said agreement was duly lodged in the appeal file. 11. The Applicant averred that notwithstanding the withdrawal of the appeal in the year 2020, he was never informed of any subsequent revival nor was he notified that the case had been listed for hearing or scheduled for determination. He urged the court to intervene in order to avert the implementation of the impugned decision by the 3rd and 4th Respondents. 12. The Respondents opposed the application vide grounds of opposition dated 18th February, 2026. It was contended that Applicant had failed to demonstrate how the 2nd Respondent failed in his mandate of making decision in appeals lodged to the Minister. That the instant application is an appeal against the decision of the 2nd Respondent offending the provisions of Section 29 of the Land Adjudication Act. The Respondents further contended that the Applicant had failed to demonstrate that the entire process was ultra vires or tainted with unreasonableness and irrationality. It was urged that the application be dismissed with costs. 13. The application was canvassed by way of written submissions. 14. Only the Respondents’ submissions were on the record at the time of writing this judgment. In their submissions dated 30th April, 2026, State Counsel submitted that the Applicant had failed to demonstrate how the Respondents acted ultra vires. It was further submitted that the Applicant had failed to demonstrate illegality, irrationality and impropriety in the Respondents’ actions. 15. State Counsel contended that both the Applicant and the Interested Party were in attendance for the hearing on 21st August, 2025. It was further contended that both parties were granted an opportunity to present their respective cases and to cross-examine their counterparts. State Counsel was of the view that the Respondents had exercised their mandate judiciously and therefore the instant application should be dismissed with costs. 16. On perusal of the application and the Respondents’ reply, the apparent issues for determination are: - 17. ***Whether the court ought to extend time for the filing of the judicial review proceedings herein; and*** 18. ***whether the Applicant has demonstrated that he is entitled to the judicial review orders of certiorari and prohibition as sought.*** 19. The proceedings herein are premised upon the provisions of the Fair Administrative Action Act and the accompanying regulations. Regulation 6 of the Fair Administrative Action Rules, 2024 sets out as follows: - 20. **An applicant intending to apply for the quashing of an administrative action or decision shall commence judicial review proceedings before a court within six weeks after the date the administrative action was taken.** 21. **The court may, on the written application by an applicant, extend the time for lodging a judicial review application where it is proved to its satisfaction that the applicant was prevented, through fraud or misrepresentation, from getting to know of the administrative action or decision or could not, despite exercise of diligence, have known of the administrative action or decision sought to be quashed.** 22. **In making a decision under sub-rule (2), the court may consider the period of the delay, the reason for the delay and whether an extension of time may cause substantial hardship or prejudice to the respondent.** 23. The decision sought to be challenged was made on 29th October, 2025. The Applicant made the present application on 17th December, 2025. As per the Regulations, the application ought to have been filed on or before 11th December, 2025. The period of delay was about six days. 24. Explaining the reasons for the delay, the Applicant contended that the 1st Respondent did not notify him of the decision and only became aware that it had been delivered on or about 1st December, 2025 through informal market gossip. He stated that, out of his own initiative, he travelled to Nairobi on 2nd December, 2025 where he obtained a copy of the decision from the Director of Land Adjudication and Settlement. 25. A perusal of the decision marked as Exhibit “JKM3” indeed bears out the stamp of the 3rd Respondent revealing that indeed the decision was certified and presented to the Applicant on 2nd December, 2025. Accordingly, the Applicant’s explanation for the delay is acceptable that he was not able to obtain the 1st Respondent’s decision in time despite the exercise of due diligence. Again, the Respondents did not express any prejudice caused to them for the late filing of the application. 26. For that reason, the application for extension of time for lodging the proceedings herein is hereby allowed in terms of prayer number 2. 27. Being a quasi-judicial tribunal, the Minister’s Appeal was conditioned upon the requirements of Section 4 of the Fair Administrative Action Act, 2015 which provides in part as follows: - 28. **Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.** 29. **Every person has the right to be given written reasons for any administrative action that is taken against him.** 30. **Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision–** 1. **Prior and adequate notice of the nature and reasons for the proposed administrative action;** 2. **An opportunity to be heard and to make representations in that regard;** 3. **Notice of a right to a review or internal appeal against an administrative decision, where applicable;** 4. **A statement of reasons pursuant to section 6;** 5. **Notice of the right to legal representation, where applicable;** 6. **Notice of the right to cross-examine or where applicable; or** 7. **Information, materials and evidence to be relied upon in making the decision or taking the administrative action.** 31. **The administrator shall accord the person against whom administrative action is taken an opportunity to–** 1. **Attend proceedings, in person or in the company of an expert of his choice;** 2. **Be heard;** 3. **Cross-examine persons who give adverse evidence against him; and** 4. **Request for an adjournment of the proceedings, where necessary to ensure a fair hearing.** 32. The main contention by the Applicant is that the 1st Respondent acted in excess of jurisdiction in entertaining an appeal that was filed outside the mandatory statutory period of sixty days. The Applicant further faulted the finding of the 1st Respondent asserting that it was procedurally improper for violating Rule 4 (4) of the Land Adjudication Regulations. 33. The Court in **Okoiti & 3 others v Anne Waiguru, the Cabinet Secretary, Devolution and Planning & 5 others (Petition 42 & 27 of 2014 (Consolidated)) [2021] KEELRC 2306 (KLR)** had the occasion to express itself on what amounts to an ultra vires act. The three-judge bench stated as follows: - ***“An act is ultra vires 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 renders the decision made laced with illegality. See Republic v Secretary of the Firearms Licensing Board & 2 others ex -parte: Senator Johnson Muthama [2018] eKLR. In the case of Pastoli v Kabale District Local Government Council & others, (2008) 2 EA 300 the court held that;*** ***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.”*** 1. According to the Applicant, the impugned proceedings before the 1st Respondent were filed five years after the decision of the Land Adjudication Officer had been delivered on or about 21/10/1994. The evidential burden is cast upon the Plaintiff to prove any particular fact which he desires the court to believe in its existence. That is captured in sections 109 of the Evidence Act which sets out thus: - **‘The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.’** 1. The Applicant did not avail to this court a memorandum of appeal or an official receipt to verify his allegations that the proceedings were filed outside the mandatory statutory period. For that reason, the allegation that the 1st Respondent acted in excess of jurisdiction is unsubstantiated and is hereby disallowed. 2. On whether the decision is marred by procedural impropriety, Regulation 4 (4) of the Land Adjudication Regulations outlines as follows: - **‘Subject to the leave of the Cabinet Secretary being first obtained the appellant or any other party to an appeal may attend before the Cabinet Secretary either in person or by duly authorised agent, and shall be entitled to call witnesses.’** 1. The Applicant insists that the Appellant before the Minister’s Appeal was Timothy M. Kakui. That even though the Appellant was deceased, his representative Joyce Mukulu Kilonzo, the Interested Party herein did not present official letters of administration confirming that she was duly authorized to represent the Appellant. 2. As Grace. W. Ngenye J. (as she then was) observed in **Republic v Public Service Commission of Kenya & 4 others [2014] eKLR**: - ***“As “audi alteram partem” rule is concerned with the manner a decision is taken as opposed to whether the decision is correct, it cannot be underrated that whoever is accused of an illegality must be given an opportunity to defend himself/herself before a final decision is taken. But another question arises; what is the threshold of audi alteram partem rule?*** ***In SIMON GAKUO -VS- KENYATTA UNIVERSITY AND 2 OTHERS MISC. CIVIL APPLICATION NO. 34 OF 2009 (UR), the court said:-*** ***“The audi alteram partem rule should not be interpreted to mean a full adversarial hearing or anything close to it as per the courtroom situations and as per Section 77 of the Constitution. Interpreting the demands of natural justice as requiring an adversarial hearing or anything similar is a serious misdirection in law. There are no rigid or universal rules as to what is needed in order to be procedurally fair. What is needed is what the court considers sufficient in the context of each situation with its own unique facts with the needs of good administration in view. I urge practitioners of law not to rigidly import the hearing requirements in court room situation etc.” (See also Odunga J. in PERIS WAMBOGO NYAGA V. KENYATTA UNIVERSITY [2014] eKLR)”*** 1. Being a quasi-judicial tribunal, the proceedings before the 1st Respondent are not bound to the rules of procedure unlike ordinary courts. The 1st Respondent reasonably inquired and verified the identity of the Interested Party to determine her competence to prosecute the Appeal on behalf of her deceased father. The Applicant herein did not raise any concern when she was giving her evidence and it is apparent from the proceedings that no new issues were heard. The dispute specifically concerned Plot No. 253. 2. In the case of **Dominic Musei Ikombo –vs- Kyule Makau (2019) eKLR**, the Court of Appeal held that in proceedings before the District Commissioner on behalf of the Minister under the Land Adjudication Act there is no requirement for strict adherence to the Civil Procedure At or Law of Succession. The Court further held that under Section 13 of the Land Adjudication Act representatives or guardians according to African customary law are recognized and there is no need of producing letter of administration. 3. The question that comes to mind is whether the Applicant was denied a fair hearing? **Black’s Law Dictionary 9th Edition page 789** defines a fair hearing as follows:- ***“A judicial or administrative hearing conducted in accordance with due process.”*** 1. Byram Ongaya J. (as he then was) in **Richard Bwogo Birir v Narok County Government & 2 others [2014] eKLR**, adopted the following interpretation for what entails due process: - ***“Due process of law or simply, “due process” entails according the concerned person proceedings in which rules and principles for the protection and enforcement of private rights are upheld by the decision maker or relevant authority. At the core of due process is according the concerned person a reasonable notice with sufficient particulars to prepare for a fair hearing, the second crucial element of due process (see definition and explanation in Black’s Law Dictionary, 9th Edition). Thus the court holds that due process will not be said to exist in absence of a reasonable notice with sufficient particulars to prepare for a fair hearing.”*** 1. After a thorough scrutiny of the evidence presented, it is indisputable that the Applicant was invited for the hearing of the Appeal Case No. 14 of 1999. That from the certified proceedings and the signed decision of the Minister, the hearing was conducted on 21st August, 2025. Both the Applicant and the Interested Party appeared and gave evidence in respect of the suit property. 2. In **Municipal Council of Mombasa v Republic & another [2002] eKLR**, the Court held as follows: - ***“Judicial review is concerned with the decision-making process, not with merits of the decision itself... 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. From the evidence presented, there is no proof of procedural impropriety in the proceedings or that the 1st Respondent acted ultra vires or ignored relevant considerations material to a fair determination of the case. The instant application constitutes an appeal on the merits of the 1st Respondent’s decision and these are not the proper proceedings for such a challenge. 2. In the end, the application is devoid of merit. It is dismissed with costs. **.....................................................** **HON. E. O. OBAGA, FCIArb** **JUDGE** **JUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 23RD DAY OF JULY, 2026.** **IN THE PRESENCE OF:** Ms. Nyaata for Interested Party Ms. Mwakizozo for Mr. Omondi for Exparte Applicant Court assistants – Kilonzo & Musyoki