https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5183

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **JUDICIAL REVIEW CASE NO. E001 OF 2025** **JOSEPHAT ALBERT MATEKWA….…..………….…… APPLICANT** **-VERSUS-** **COUNTY GOVERNMENT** **OF KAKAMEGA…....................................... 1ST RESPONDENT** **CHIEF, BUTSOTSO CENTRAL ……………….. 2ND RESPONDENT** **ASSISTANT CHIEF, INDANGALASIA……... 3RD RESPONDENT** **REGISTRAR OF TITLES ……………….……….. 4TH RESPONDENT** **DIRECTOR OF SURVEYS, KAKAMEGA…...5TH RESPONDENT** **ATTORNEY GENERAL……………………..…….6TH RESPONDENT** **-AND** **LONAH OKWEMBA…………………..….1ST INTERESTED PARTY** **OPET ANZALA……….…………………...2ND INTERESTED PARTY** **ELIOT ANZALA……..…………………….3RD INTERESTED PARTY** **TIMOTHY ANYIKA…………………..….4TH INTERESTED PARTY** **FRANCIS ANYIKA…………………….….5TH INTERESTED PARTY** **SOLOMON MUTENYU……………….…6TH INTERESTED PARTY** **BOY MWANA WA SOLOMON………..7TH INTERESTED PARTY** **BRIAN NAMBALA…………………….….8TH INTERESTED PARTY** **PAUL ANZALA OMUTENYU………….9TH INTERESTED PARTY** **RULING** **Introduction** 1. Before Court is Chamber Summons dated 11th March 2025 in which the applicant seeks leave to institute judicial review proceedings for orders of prohibition and mandamus. He further prays that the grant of leave operates as a stay of any ongoing or intended establishment, digging or expansion of a road, easement, wayleave or right of way bordering land parcel Butsotso/Indangalasia/1172, pending the hearing and determination of the intended judicial review proceedings. 2. The application is supported by the applicant’s statutory statement and verifying affidavit sworn on 11th March 2025. He depones that he is the registered proprietor of land parcel Butsotso/Indangalasia/1172, having acquired the property from the late John Omutenyu Akhonya in 1985 for valuable consideration. He avers that following the vendor’s demise, the interested parties have repeatedly instigated boundary disputes with the intention of unlawfully depriving him of his land. He further alleges that, with the assistance of the respondents and local administration, the interested parties interfered with the boundaries of the suit property, destroyed his fence and trees, and excavated along the boundary to expand an existing road or wayleave. 3. The applicant further contends that the interested parties unlawfully subdivided and wasted the estate of the deceased without complying with the relevant succession and land laws and are now intent on encroaching upon his property. He maintains that he has occupied the suit property peacefully for over forty years and that, despite interventions by the Land Registrar, County Surveyor and local administrators, the boundary disputes persist. He therefore urges the Court to protect his constitutional right to property under Article 40 of the Constitution and to preserve the suit property from unlawful interference. 4. The respondents oppose the application through a replying affidavit sworn on 20th May 2025 by the County Attorney. They contend that the application is incompetent, frivolous and procedurally defective under the Fair Administrative Action Act framework. They deny authorising or facilitating any expansion of the road and maintain that the applicant has failed to demonstrate any violation of the Constitution or any basis warranting the grant of judicial review remedies. 5. The interested parties similarly oppose the application through grounds of opposition dated 13th June 2026 and a replying affidavit sworn by Obed Anzala, the 2nd interested party, on 2nd April 2025. They state that the dispute concerns an existing public access road running alongside the applicant’s parcel and neighbouring parcels, which has been openly and peacefully used by the community for many years. According to them, the applicant attempted to encroach upon the road by planting a hedge, prompting intervention by the village administration. They further aver that members of the community merely repaired the existing road before the present application was filed, thereby rendering the prayer seeking to prohibit its expansion overtaken by events. 6. The interested parties further contend that the applicant has failed to exhaust the dispute resolution mechanisms provided under the Land Registration Act and the Fair Administrative Action Act. They argue that boundary disputes fall within the statutory mandate of the Land Registrar and County Surveyor and that the Court lacks jurisdiction to determine such matters at this stage. They also maintain that the application improperly raises issues relating to succession and other matters that cannot be resolved through judicial review proceedings. 7. In his further affidavit sworn on 24th April 2025, the applicant reiterates that the intended judicial review proceedings are directed against public bodies in respect of the exercise of statutory powers. He challenges the competence of the interested parties’ replying affidavit on the grounds that the deponent lacked authority and that the affidavit does not address the threshold for granting leave. He further disputes the authenticity of the annexures relied upon by the interested parties and maintains that any public road or easement cannot lawfully be created from his land without due process, notice and compensation. He asserts that he has exhausted all available remedies and urges the Court to grant leave to pursue the intended judicial review orders. 8. The application was canvassed by way of written submissions. The Court has considered the applicant’s submissions dated 21st March 2025, the respondents’ submissions dated 5th June 2025, and the interested parties’ submissions dated 16th June 2025, together with the pleadings and affidavits on record. **Analysis and determination** 1. Having carefully considered the Chamber Summons, the affidavits sworn in support thereof and in opposition thereto, together with the rival submissions by counsel, the Court is of the considered view that the sole issue for determination is whether the applicant has satisfied the threshold for the grant of leave to commence judicial review proceedings for orders of prohibition and mandamus, and whether such leave should operate as a stay of the intended implementation of the alleged road expansion pending the hearing and determination of the substantive motion. 2. Order 53 Rule 1 of the Civil Procedure Rules provides that no application for judicial review orders of Mandamus, prohibiion, or certiorari shall be made unless leave therefore has been granted. 3. It is trite that the legal threshold for grant of leave to institute judicial review proceedings is the demonstration of a prima facie case worth further interrogation of the matter at the inter partes hearing of the substantive motion. 4. In **Mirugi Kariuki v Attorney General, Civil Appeal No. 70 of 1991, [1990–1994] EA 156; [1992] KLR 8,** the Court of Appeal set out the threshold applicable at the leave stage in judicial review proceedings. The Court held that the purpose of leave is to prevent abuse of the judicial review process and that an applicant must demonstrate a prima facie case founded on reasonable grounds. The Court stated as follows: “***If he fails to show, when he applies for leave, a prima facie case, on reasonable grounds for believing that there has been a failure of public duty, the Court would be in error if it granted leave. The curb represented by the need for the applicant to show, when he seeks leave to apply, that he has a case, is an essential protection against abuse of the legal process. It enables the Court to prevent abuse by busybodies, cranks and other mischief-makers.”*** 1. The Court further held that the question whether leave should operate as a stay is a matter of judicial discretion, which must be exercised judiciously. The Court observed: “***The decision whether or not to grant a stay pursuant to leave is no doubt an exercise of judicial discretion and that discretion like any other judicial discretion must be exercised judiciously.”*** 1. Similarly, in **Republic v Kenya Revenue Authority ex parte Yaya Towers Limited [2008] eKLR,** the Court explained the purpose of leave in judicial review proceedings. The Court observed that leave acts as a filtering mechanism to ensure that only applications disclosing an arguable case proceed to substantive hearing. The Court stated: “***The leave stage is a very important stage in the judicial review process. It is at this stage that the Court determines whether or not the applicant has an arguable case. The purpose of the leave stage is to filter out frivolous, vexatious or hopeless cases and to ensure that the applicant has sufficient interest in the matter.”*** 1. The Court further held: “***The applicant must show that there is an arguable case and that the application is not frivolous or vexatious. The court should not at this stage delve into the merits of the application.”*** 1. On whether leave should operate as a stay, the Court in **Taib A. Taib v The Minister for Local Government & Others, Mombasa HCMISC No. 158 of 2006**, explained that the purpose of stay in judicial review proceedings is to preserve the subject matter of the proceedings and prevent the intended application from being rendered nugatory. The Court stated: ***“The purpose of a stay order in judicial review proceedings is to prevent the decision maker from continuing with the decision making process if the decision has not been made or to suspend the validity and implementation of the decision that has been made and it is not limited to judicial or quasi-judicial proceedings as it encompasses the administrative decision making process being undertaken by a public body such as a local authority or minister and the implementation of the decision of such a body if it has been taken. It is however not appropriate to compel a public body to act.”*** 1. In the case before court, while the applicant sought leave to seek prohibition, he stated that the prohibition was to prohibit the respondents from establishing, digging and expanding the road, easement, wayleave or right of way bordering parcel No. Butsotso/Indangalasia/1172 before a resurvey and establishment and maintenance of the status quo of the boundaries. He further sought leave to seek an order of mandamus to compel the Registrar of titles and director of survey to resurvey, measure and establish boundaries and to correct the acreage of his parcel. 2. In essence, and looking at the applicant’s own exhibits, the applicant and interested parties have had long standing boundary disputes. I have seen a myriad of summons from the Land Registrar, and correspondence spanning several decades in regard to the boundaries of the suit property. The querrel is about the boundaries between parcel No. Butsotso/Indangalasia/1171 and 1172 and whether there is a road, wayleave or easement in respect thereof. It appears to me that the parties have been unwilling to resolve the dispute as there are several documens from the lands offices in regard to the said dispute. 3. A boundary dispute however framed cannot mutate into a judicial review dispute. It remains a boundary dispute. 4. Section 18 of the Land Registration Act bars this court from hearing and determining general boundary disputes and vests such jurisdiction in the Land Registrar. The same provides as follows; **“18. Boundaries** | | | | | --- | --- | --- | | **(1)** | **Except where, in accordance with section 20, it is noted in the register that the boundaries of a parcel have been fixed, the cadastral map and any filed plan shall be deemed to indicate the approximate boundaries and the approximate situation only of the parcel.** | | | **(2)** | | **The court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section.** | | | | | --- | --- | | **(3)** | **Except where, it is noted in the register that the boundaries of a parcel have been fixed, the Registrar may, in any proceedings concerning the parcel, receive such evidence as to its boundaries and situation as may be necessary:** **Provided that where all the boundaries are defined under section 19 (3), the determination of the position of any uncertain boundary shall be done as stipulated in the Survey Act (Cap. 299).”** | 1. Regulation 40 of the Land Registration (General) Regulations (Legal Notice No. 278 of 2017) provides for re-establishing a missing boundary or ascertaining a boundary in a dispute as follows; **“Application for re-establishing a missing boundary or ascertainment of a boundary in dispute;** * + 1. **An interested person may apply to the Registrar for the ascertaining of a missing boundary or a boundary in dispute under section 18(3) of the Act in Form LRA 23 set out in the Sixth Schedule.** 2. **The Registrar shall issue a notice in Form LRA 24 set out in the Sixth Schedule to all persons appearing in the register that may be affected or such other persons as the Registrar may deem necessary for resolution of the dispute if a person has complied with paragraph *(1)*.** 3. **The Registrar shall notify the office responsible for survey of land of the intended hearing of a boundary dispute and require their attendance if a person has complied with paragraph *(1)*.** 4. **In determining a boundary dispute lodged in accordance with paragraph *(1)*, the Registrar shall be guided by the recommendation of the office responsible for survey of land.** 5. **The Registrar shall, after giving all persons appearing for the hearing in accordance with the notifications sent under paragraphs *(1)* and *(2)* an opportunity to be heard, make a determination of the dispute and inform the parties accordingly.** 6. **Any party aggrieved by the decision of the Registrar made under paragraph *(5)* may, within thirty days of the date of notification, appeal the decision to the Court.** 7. **Upon expiry of thirty days, the Registrar shall—** - 1. **Cause to be defined by survey the precise position of the boundaries in question;** 2. **File a plan approved by the authority responsible for survey of land containing the necessary particulars; and** 3. **Make a note in the register that the boundaries have been fixed, and thereupon the plan shall be deemed to define accurately the boundaries of the parcel.** 8. **A dispute for determination of a boundary and or parcel shall, unless in the case of special circumstances, be completed within a period not exceeding six months from the date of filing the application.”** 1. It follows that disputes relating to general boundaries cannot be resolved in the first instance by this court. It does not matter how the applicant approaches the court whether by judicial review, petition or plaint or in any other manner. 2. The applicants assertions that the respondens are digging and expanding the road were not demonstrated and no actions of the respondens were demonstrated before this court worthy of being inhibited. 3. The argument that the court should compel the respondents to establish the boundaries when the applicant has not shown the court that he has filed a boundary dispute before the land Registrar cannot be granted. 4. In short the applicant’s dispute is a boundary question which cannot be resolved through judicial review proceedings, but which ought to be heard by lodging a complaint before the Land Registrar. 5. In the case of **Nzau v Kemei & 2 others (Environment & Land Case 70 of 2023)[2025] KEELC 526 (KLR) (12 February 2025) (Ruling) Neutral citation: [2025] KEELC 526 (KLR),** the court held that the Environment and Land court had no original jurisdiction to determine a boundary dispute concerning general boundaries. 6. In the premises, the court finds that no prima facie case has been made and therefore the chamber summons dated 11th March 2025 lacks merit and the same is hereby dismissed. Both parties herein having failed to pursue a conclusive determination of the boundary dispute herein for several decades, I make no order as to costs. 7. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 29TH DAY OF JULY 2026** **A. NYUKURI** **JUDGE** **In the presence of;** Mr. Andole for the applicant No appearance for the respondent Court Assistant: Delphine