https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3896

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LANDS COURT** **ELCJR CASE NO. E005 OF 2025** **NICHOLUS MUSYOKA MATHANG'U:::::::::::::::::::::::::::::PETITIONER** **VERSUS** **JANE WAIRIMU MUCHIRI:::::::::::::::::::::::::::::::::::::1ST RESPONDENT** **PETER MWANZA MUEKE:::::::::::::::::::::::::::::::::::::2ND RESPONDENT** **ELIZABETH MBITHE NDILE::::::::::::::::::::::::::::::::: 3RD RESPONDENT** **RULING** The application is dated 4th July 2026 and is pursuant to Articles 10, 19, 22, 23, 27, 47, 48, 50(1), 59 (4), 60, 61, 62, 63, 64, 65, 66, 67, 73(1)(a) (iii), 73 (2) (b), 73, 75, 156(6), 157, 159, 165, 258 and 259(1) and 260 of the Constitution of Kenya 2010; Sections 18, 19 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013; the principles of natural justice seeking the following orders; 1. That this application be certified as urgent and fit to be heard forthwith, and be granted ex-parte, and in priority to any other matter herein. 2. That pending the inter-partes hearing and determination of this application and / or the costs orders herein the Hon. Court be pleased to issue an order of prohibition, barring the 1st, 2nd and 3rd Respondents, whether by themselves, or any of their representatives or any person claiming to act under their authority from proceeding to or file any defence or respond to court proceedings on grounds they failed to deployed cunning tactics to defraud the Petitioner, or file any other court materials such as the responses, written submissions, annextures, authorities, demand notices, affidavits or applications against the Petitioner's filed pleadings in this court, in anyway whatsoever, nonetheless the court to grant the orders of repossession of land and costs sought in this suit in favour of the Petitioner. 3. That this requests the court to allow the warrant of arrest against Respondents until and otherwise the Petitioner herein accesses his Justice of repossession and costs. 4. That consequent to the grant of the prayers above the Hon. Court be pleased to issue such further directions and orders as may be necessary to give effect to the foregoing orders, and/or favor the cause of justice. 5. That the compensation and costs of this application be provided for. This Application is based on the following grounds that selling land twice to different two buyers amounts to land fraud and money laundering schemes for punishable penal code. The Petitioner did not have the opportunity to approach and address the Magistrate Court earlier as he was denied the opportunity and he has done it in this eleventh hour and files all the issues that would been raised therein against the Respondents. That in the year 2013, the Petitioner in good faith agreed to purchase the disputed land, suit herein and paid Kshs. 430, 000 to the 2nd Respondent. After some few years, and upon the 1st Respondent being aware that the Petitioner had already purchased the land, then she went ahead and resold it to the 3rd Respondent. That upon receipt the money from the two buyers then, the 1st and 2nd Respondents decided to apply tricks, perjury and cunning tactics that they could refund the Petitioner's money in less than 6 months however has gone years down the line. That the Petitioner received several and joint threats from the Respondents that if he persists staying or else pursues any land suit in courts then his head would be chopped and dumped into Masinga dam a reason as to why he feared to either file his case or appear in court. For the above reasons, the Petitioner pleads with this Court to urgently intervene and save his lost land. This matter is extremely urgent since, despite the fact that the Petitioner is faced with economic challenges, hence he pleads with this Hon. Court to grant him waiver orders in filing this suit. The law as regards the consequences of the threats witnessed herein needs to be clarified and enforced by this Court as a matter of utmost urgency, and the final verdict of the purported land defraud for repossession along with costs is hereby entered within 3 days thereof. The decision by the 1st and 2nd Respondents to act outside the law by defrauding the Petitioner surmounts to punishment against them. This application will be rendered nugatory if the orders sought herein are not granted. The second application is dated 30th September 2025 and seeks leave for the applicant Lawrence Bosire Miruka to be joined as an interested party in these proceedings and to be allowed to file affidavits, responses and submissions as may be necessary to address the issues in this matter. This court has considered the applications and the submissions therein. The purpose of judicial review was enunciated in the case of Municipal Council of Mombasa vs Republic Umoja Consultants Ltd, Nairobi Civil Appeal No.185 of 2007(2002) eKLR, where the Court of Appeal held that; *“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 make 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 they 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 this was or there was no sufficient evidence to support the decision and that as we have said, is not the province of Judicial Review”.* It is trite law that a court exercising judicial review jurisdiction is only concerned with the procedural propriety of a decision and not the merits. This position was adopted by the court in Associated Provincial Picture Houses, Ltd. vs Wednesbury Corporation (1947) 2 All E.R 680. As a result, it is only in exceptional circumstances that the court can consider merits of a decision. These exceptional circumstances were enumerated by the learned Mumbi Ngugi J in Republic vs Public Procurement Administrative Review Board & 2 others Ex Parte - Sanitam Services (E.A) Limited (2013) eKLR, while citing the Associated Provincial Picture Houses Ltd. vs Wednesbury Corporation (supra) namely: *“where the administrative body has acted outside its jurisdiction, has taken into account matters it ought not to have taken into account, or failed to take into account matters it ought to have taken into account; or that it has made a decision that is ‘so unreasonable that no reasonable authority could ever come to it.”* The remedy of judicial review is concerned with reviewing, not the merits of the decision in respect of which the application for judicial review is made, but the decision- making process as was held by Mumbi Ngugi J in the case of Republic vs Public Procurement Administrative Review Board & 2 others Ex Parte - Sanitam Services (E.A) Limited (supra), *“That the purpose of the remedies availed to a party under the judicial review regime is to ensure that the individual is given fair treatment by the authority to which he has been subjected. The purpose is not to substitute the opinion of the court for that of the administrative body in which is vested statutory authority to determine the matter in question.”* It was incumbent upon the Applicant to demonstrate that the decision-making organ, in this case acted ultra vires in making the impugned decision. In the case of Seventh Day Adventist Church (East Africa) Limited vs Permanent Secretary, Ministry of Nairobi Metropolitan Development & another (2014) eKLR, the court held that; *“Where an applicant brings judicial review proceedings with a view to determining contested matters of facts with an intention of securing a determination on the merits of the dispute the Court would not have jurisdiction in a judicial review proceeding to determine such a dispute and would leave the parties to ventilate the merits of the dispute in the ordinary civil suits.”* Similarly, in the case of Commissioner of Lands vs Kunste Hotel Limited (1997) eKLR (E & L) 1 at page 249, the Court of Appeal stated that; *“But it must be remembered that Judicial Review is concerned not with private rights or the merits of the decision being challenged but with the decision making process. Its purpose is to ensure that the individual is given fair treatment by the authority to which he has been subjected”.* In Halsbury’s Laws of England 4th Edition Volume 2 Page 508 where it is stated that; *“Certiorari is a discretionary remedy which the Court may refuse to grant even when the requisite grounds for its grant exist. The Court has to weigh one thing against another to see whether or not the remedy is the most efficacious in the circumstances obtaining. The judicial discretion of the Court being a judicial one, must be exercised on the basis of evidence and sound legal principles*”. The 1st Respondents opposed the application and stated that the Applicant continues to defy court orders that ordered him to give vacant possession of the suit property and all rents due since 2022. That the Applicant should have filed an appeal and not judicial review proceedings. The Applicant states that he was not given an opportunity to defend himself and the case not conclusively determined. I have perused the court records and the said decision was delivered by the magistrate court at Kithimani in case No. ELC No. 30 of 2022 on the 18th June 2025. That Order 53 Rule 2 of the Civil Procedure Rules as read with section 9(3) of the law reform act provides for a time limit of six months within which the application should have been filed. Judicial review jurisdiction is a special jurisdiction which is neither Civil nor Criminal and it is governed by Section 8 and 9 of the [Law Reform Act](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1956/48) which is the substantive law while Order 53 of the Civil Procedure Rules sets out the procedural law. By those provisions the court is mandated to issue orders of mandamus, certiorari or prohibition in appropriate judicial review proceedings. The Civil Procedure Act provides on how appeals are to be filed from the magistrate’s court. It is apparent that the applicant herein did not pursue that right of appeal. Be that as it may, applications for prerogative orders have a limitation period. The [Law Reform Act](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1956/48) Cap 26 Laws of Kenya, provides as follows at Section 9 (3): *“In the case of an application for an order of certiorari to remove any* *judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceedings or such shorter period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceedings or such shorter period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceedings is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.”* The above provision is echoed in the Civil Procedure Rules, 2010, which in Order 53 rule 2 provides as follows: *“Order 53 Rule 2 – Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed unless the application for leave is made not later than six months after the date of the proceedings or such shorter period as may be prescribed by any Act; and where the proceedings is subject to appeal and the 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.”* It is discernible from the above, that one needs to file an application seeking leave to apply for orders of certiorari, within a period of 6 months of the decision. The decision that is sought to be quashed is dated 18th June 2025. The application was filed on 4th July 2026. The application is therefore out of time. The Court of Appeal case in Wilson Osolo vs John Ojiambo Ochola & Another (1996) eKLR expressed itself thus; *“It can readily be seen that order 53 rule 2 (as it then stood) is derived verbatim from Section 9(3) of the*[*Law Reform Act*](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1956/48)*. Whilst the time limited for doing something under the civil procedure rules can be extended by an application under order 49 of the Civil Procedure Rules that procedure cannot be availed of for the extension of time limited by statute, in this case the*[*Law Reform Act*](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1956/48)*.” There is no provision for extension of time to apply for such leave in the*[*Limitation of Actions Act*](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1968/21)*(Cap 22, Laws of Kenya) which gives some limited right for extension of time to file suits after expiry of a limitation period. But this Act has no relevance here.”* I am also guided by the case of Republic vs Chairman Amagoro Land Dispute Tribunal & Another Ex-parte Paul Mafwabi Wanyama (2014) eKLR wherein D. Maraga JA (as he then was) held that: *“The judicial review proceedings before the learned judge, which have given rise to this appeal were therefore special in nature and the leaned judge erred in importing provisions of the*[*Civil Procedure Act*](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1924/3)*and rules to proceedings* *governed by the said provisions of the*[*Law Reform Act*](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1956/48)*and Order 53 Civil Procedure Rules. We agreed with learned counsel for the appellant that the learned judge erred in extending time which he had no jurisdiction to do.”* I am aware that by dint of the provisions of Order 50 Rule 5 of the Civil Procedure Rules, 2010, the court has power to enlarge time, where there is limited time provided for doing any act or taking any proceedings under the rules. Following this provision, it may be arguable that time may be enlarged to make application for Judicial Review outside the 6 months’ limitation period. However, the challenge here, is that the limitation period is not just in the rules, but is also a statutory provisions set out in Section 9(3) of the [Law Reform Act](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1956/48) (above), and it is trite law that rules made under statute, cannot override a statutory provision. The [Law Reform Act](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/1956/48) itself has no provision for extension of time. I have seen no law, which can entitle me to enlarge time for the filing of an application for certiorari outside the 6- month limitation period. I also find that besides the fact that the lower court has not been sued, the Applicant ought to have filed an appeal against the decision of the magistrate as opposed to a judicial review. In the circumstances, I find that there is no need to consider the second application on joinder. I find this application is not merited and is hereby dismissed with costs to the Respondents. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 23RD DAY OF JUNE 2026.** **N.A. MATHEKA** **JUDGE**