https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1478

M'Mbetsa v Cabinet Secretary, Ministry of Lands & 4 others (Civil Appeal E126 of 2023) [2026] KECA 1478 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1478 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal E126 of 2023 DK Musinga, AK Murgor & J Mohammed, JJA July 24, 2026 Between M'Mbetsa Nzaphila M'Mbetsa Appellant and The Cabinet Secretary, Ministry of Lands 1st Respondent Deputy County Commissioner, Kinango subcounty 2nd Respondent The Land Adjudication and Settlement Officer, Kinango 3rd Respondent Attorney General 4th Respondent Nyota Mwero Mtula 5th Respondent (An Appeal from the judgment of the Environment and Land Court at Kwale (A.E. Dena, J.) delivered on 23rd May 2023 in Kwale Misc. Judicial Review Application No. E009 of 2022) Judgment 1.This matter arose from a long-standing land dispute relating to Plot Number 677, later subdivided to create Plot Number 2781, within the Kinango/Mnyenzeni Adjudication Section. The dispute dates back to the year 2006 during the land adjudication process conducted under the Land Adjudication Act and involved members of the same clan, namely, M’Mbetsa Nzaphila M’Mbetsa, the Appellant, and Nyota Mwero Mtula, the 5th Respondent. Initially, during demarcation, Plot Number 677 was recorded in the name of Nyota Mwero Mtula. However, a complaint was lodged in the Land Adjudication Committee in Case Number 1 of 2007 by the family of the Appellant, represented at the time by his brother, Zuma Marunga Matari. After hearing the parties, the Committee rendered a decision on 7th November 2007 in favour of Zuma Marunga Matari and ordered that the name of Nyota Mwero Mtula be removed from the adjudication register. The Committee granted a statutory right of appeal within fourteen days. 2.Being dissatisfied with that decision, the 5th Respondent lodged an appeal to the Arbitration Board in Case Number 3107-08 (31/07-08), which was heard and determined on 20th April 2010. In their decision, the Arbitration Board found that the parties were members of the same clan, that there were graves belonging to the family of Nyota Mwero Mtula on the land, and that the Kinango–Mazeras road would serve as the boundary between the families. The Board ordered that Plot Number 677 be subdivided and that Nyota Mwero Mtula be allocated Plot Number 2781. No appeal was lodged against that decision. 3.However, after the adjudication register for the Mnyenzeni Adjudication Section was completed and published on 15th October 2020, the Appellant filed Objection Number 45 of 2021 before the Sub-County Land Adjudication and Settlement Officer, Kinango, claiming that part of his land had been wrongly included in Plot Number 2781. The objection was heard, and on 26th October 2021, the Land Adjudication Officer allowed the objection and created Plot Number 2932 in favour of the Appellant. 4.Nyota Mwero Mtula was dissatisfied with that decision, and appealed to the Minister under Section 29(1) of the Land Adjudication Act. The appeal was heard by the Deputy County Commissioner, Kinango Sub-County, and was dismissed on 21st March 2022, thereby affirming the decision of the Land Adjudication Officer. 5.Further dissatisfied with the decision, the 5th Respondent instituted judicial review proceedings in the Environment and Land Court seeking orders of certiorari to quash the decisions of the Land Adjudication Officer and the Minister, and an order of mandamus to compel the enforcement of the Arbitration Board decision of 20th April 2010. The court considered the pleadings, affidavits, submissions, and the applicable law, in particular the Land Adjudication Act, the Fair Administrative Action Act, and established principles governing judicial review and observed that, if the Appellant was an affected party in the Arbitration Board decision of 20th April 2010 and was dissatisfied with that decision, he ought to have lodged an appeal under Sections 21 and 22 of the Land Adjudication Act within the prescribed period of fourteen days. The court held that Objection Number 45 of 2021 was not a proper objection within the meaning of Section 26 of the Act but was, in substance, an appeal disguised as an objection, filed more than eleven years after the final determination of the dispute. The court further held that the Appellant had failed to exhaust the statutory dispute resolution mechanisms established by the Act and had further failed to adhere to the timelines provided by law. 6.Interpreting the Land Adjudication officer’s mandate under Section 26 of the Land Adjudication Act, the trial court held that it was limited to correcting errors or omissions in the adjudication register and did not extend to reopening, reviewing, or varying a final decision of an Arbitration Board. The court further found that by carving out Plot Number 2932 and reallocating land to the Appellant, the Land Adjudication Officer acted in excess of her jurisdiction and ultra vires the statute. The court held that it was procedurally improper and contrary to the principles of fair administrative action for the Land Adjudication Officer to single-handedly receive evidence, conduct site visits, and vary a decision that had been made by a duly constituted Arbitration Board, which conduct undermined the administrative decision-making process established by the Act. 7.The court went on to hold that, not only was the decision of the Land Adjudication Officer unlawful, the Minister’s decision affirming that decision was equally unlawful, as nothing valid could flow from an illegality. Consequently, both decisions were found to be tainted by illegality and incapable of being sustained in law. After so holding, the court concluded that the threshold for the grant of judicial review remedies had been met on the grounds of illegality, excess of jurisdiction, and procedural impropriety, and accordingly issued orders of certiorari quashing the decision of the Sub- County Land Adjudication and Settlement Officer dated 26th October 2021 and the decision of the Minister dated 21st March 2022. The Court further issued an order of mandamus directing the 1st, 2nd and 3rd Respondents to implement the Arbitration Board’s decision of 20th April 2010 in accordance with the Land Adjudication Act. In view of the familial relationship between the parties, the court ordered each party to bear their own costs. 8.Aggrieved by the court’s decision, the Appellant filed an appeal to this Court on the grounds that the learned Judge was in error in law and in fact in failing to appreciate the procedure set out in Sections 21(3) and (4) of the Land Adjudication Act, Cap 284; in failing to appreciate that the Ex parte Applicant, Nyota Mwero, did not adhere to the mandatory procedures set out in Sections 21(3) and (4) of the Land Adjudication Act; in failing to appreciate that the decision rendered by the Arbitration Board was null and void due to non- adherence to the mandatory procedure set out in Sections 21(3) and (4) of the Land Adjudication Act; in failing to appreciate that Section 26 empowers a Land Adjudication Officer to receive objections in respect of the adjudication register and, upon further consultation and inquiries as he thinks fit, to make a determination of the objection. 9.It was further contended that the learned Judge misinterpreted the meaning of “incorrect” with respect to the contents contained in the adjudication register as envisaged in Section 26, and wrongly construed it to mean an error on the face of the record; and in erroneously concluding that the objection lodged by the Appellant pursuant to Section 26 was an appeal against the determination of the Arbitration Board; that the learned Judge exercised her judicial discretion in a manner that was contrary to the law, and failed to consider all the evidence adduced by the Appellant, thereby reaching a wrong decision. 10.When the appeal came up for hearing on a virtual platform, learned counsel Mr. F. Kamau appeared for the Appellant, while learned counsel Mr. Nyabena appeared for the 5th Respondent. There was no appearance for the 1st to 4th Respondents despite their having been served with the hearing notice. 11.In their written submissions, counsel for the Appellant framed the appeal around six principal grounds, chiefly that the trial court failed to properly appreciate the procedure prescribed under Sections 21(3) and (4), 22 and 26 of the Land Adjudication Act and misdirected itself in concluding that the Appellant’s objection under Section 26 amounted to an appeal against the Arbitration Board’s decision. Counsel traced the genesis of the dispute from the adjudication proceedings in the Mnyenzeni Adjudication Section, to the appeal to the Cabinet Secretary, who dismissed the appeal, prompting the institution of judicial review proceedings culminating in the impugned judgment. 12.On the first issue, counsel argued that the 5th Respondent did not adhere to the mandatory procedure under Sections 21 and 22 when filing the complaint before the Arbitration Board. It was submitted that the Arbitration Board was improperly constituted, having sat with only three members contrary to Section 7(1) of the Act, which prescribes a minimum of five members. Relying on Speaker of the National Assembly vs James Njenga Karume [1992] KLR 21, counsel emphasized that where a statute provides a clear procedure for redress, that procedure must be strictly followed. 13.On the second issue, counsel submitted that Section 26 empowers the Land Adjudication Officer to hear and determine objections to the adjudication register. It was contended that the objection lodged was not an appeal against the Arbitration Board but a statutory objection to the register, properly filed within sixty days of publication of the notice of completion. The case of Peter Kimandiu vs Land Adjudication Officer Tigania West District & 4 others [2016] eKLR, was cited where this Court clarified the distinct roles of the Committee, Arbitration Board and Land Adjudication Officer under the Act, and affirmed that the Adjudication Officer has express statutory powers under Sections 9, 10 and 11, including the mandate under Section 26 to determine objections; that the learned Judge was wrong in holding that the Land Adjudication Officer had acted in excess of jurisdiction by overturning the Arbitration Board’s decision, but that the officer acted within their statutory mandate and that an appeal from their determination lies to the Minister under Section 29. 14.On costs, counsel invoked Section 27 of the Civil Procedure Act and urged that costs follow the event, praying that the Appellant be awarded the costs of the appeal. 15.In response, counsel for the 5th Respondent submitted that the dispute had been conclusively determined in 2010 by the Arbitration Board, which created Plot No. 2781 and fixed the boundary between the parties, and that the matter lay dormant for eleven years before the Appellant lodged Objection No. 45 of 2021; that the objection was in substance an appeal against the Arbitration Board’s determination and ought to have been filed within the timelines prescribed under Sections 21 and 22 of the Act. 16.Counsel argued that Section 21(3) and (4) provides a fourteen-day period for complaints against Committee decisions and sets out a structured referral process to the Arbitration Board; that the Appellant failed to comply with these provisions and did not lodge an appeal within the prescribed timeframe. It was further submitted that under Section 26, objections are limited to correcting errors or inaccuracies in the adjudication register and cannot be used to reopen or relitigate a dispute already determined by the Arbitration Board. 17.On the doctrine of exhaustion, counsel relied on Section 9 of the Fair Administrative Action Act, to support the contention that internal mechanisms must be exhausted before judicial review is invoked. The case of Republic vs Commissioner General, Kenya Revenue Authority Ex parte Sanofi Aventis Kenya Limited [2019] eKLR was cited for the proposition that where a clear procedure for redress is prescribed by statute, it must be strictly followed. Further, the case of Thika ELC Case No. 6 of 2020 Esther Victoria Wanjiku vs Mary Wambui Githinji, was cited to support the proposition that judicial review is concerned with the decision-making process, and not the merits. 18.It was submitted that the Land Adjudication Officer acted without jurisdiction by purporting to review and overturn the Arbitration Board’s decision, and that the Minister equally failed to address the jurisdictional issue; and that therefore, the trial court was correct in issuing orders of certiorari and mandamus and quashing both decisions. 19.This is a first appeal, where the duty of this court is to analyze and re- assess the evidence on record and reach our own independent conclusions in the matter. It was put more appropriately in Selle vs Associated Motor Boat Co., [1968] EA 123, thus:“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this Court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif vs. Ali Mohamed Sholan (1955), 22 E. A. C. A. 270)”.This Court further stated in Jabane vs Olenja, [1986] KLR 661, 664:“More recently, however, this Court has held that it will not lightly differ from the findings of fact of a trial Judge who had had the benefit of seeing and hearing all the witnesses and will only interfere with them if they are based on no evidence, or the Judge is shown demonstrably to have acted on wrong principles in reaching the findings he did – see in particular Ephantus Mwangi -vs- Duncan Mwangi Wambugu (1982-88) 1 KAR 278 and Mwanasokoni vs. Kenya Bus Services (1982-88) 1 KAR 870”. 20.Having considered the Memorandum and Record of appeal, the Judgment of the Environment and Land Court, and the rival submissions counsel, the following issues arise for determination:i)Whether the Arbitration Board was properly constituted;ii)Whether the learned Judge was wrong in her interpretation and application of Sections 21(3) and (4), 22 and 26 of the Land Adjudication Act (Cap 284).iii)Whether Objection No. 45 of 2021 lodged by the Appellant under Section 26 of the Land Adjudication Act was a competent statutory objection or, in substance, an appeal against the Arbitration Board’s decision of 20th April 2010 and whether the Land Adjudication Officer acted without jurisdiction in allowing the objection and creating Plot No. 2932 in favour of the Appellant.vi)Whether the learned Judge properly exercised her judicial review jurisdiction in granting orders of certiorari and mandamus.v)Who should bear the costs of the appeal. 21.On the issue of whether the learned Judge properly appreciated of Sections 21(3) and (4), 22 and 26 of the Land Adjudication Act, an examination of the structure and purpose of the Act is necessary. In addressing the above provisions, the learned Judge stated thus:“The above still takes me back to the provisions of sections 21 and 22 of the Act where a person named or affected by a decision of the committee considering it to be incorrect was to within 14 days complain to the executive officer of the committee giving his reasons thereof and which complaint is then submitted to the Board. The Interested Party being aggrieved by the decision that subdivided the land into two did not lodge his complaint under this section and within the 14 days required. For all purposes the Interested Party was an affected party and it did not matter to me that he was represented by his brother. This section provides for any person named in or affected by the decision. Instead the Interested Party filed the objection 45/21 and this is confirmed in paragraph 5 of his replying affidavit sworn on 31/10/22 where he deponed “that being dissatisfied with the decision in case No. 3107–08 (31/07–08., I filed an objection No. 45/2021.” From this statement it was clearly an appeal against the decision creating plot 2781 and therefore should have been filed as such under section 21 & 22 within the prescribed time. Additionally., my perusal of the content of the Interested Party’s, testimony and evidence was reflective of the fact that he was dissatisfied with the Board decision.” 22.The Land Adjudication Act sets out a dispute resolution mechanism for settlement of conflicting claims over land that is sequential and hierarchical. The Act provides for lodging of complaints where more than one person lays a claim to a specific parcel of land. 23.To begin with, Section 19 (2) and (3) provides that:“(2)If there are two or more conflicting claims to an interest in land and the recording officer is unable to resolve the conflict; he shall submit the dispute to the committee to decide.(3)The recording officer shall rectify the forms in accordance with any decision which the adjudication officer, the committee or the board may make in accordance with this Act.”Therefore, where two parties are dissatisfied with the decision of the Land Adjudication officer, they can submit the dispute to the Adjudication Committee for determination. If dissatisfied with the Committee’s decision, either party can proceed to the Arbitration Board as established under Section 21 of the Act which provides for complaints against decisions of the Adjudication Committee. More specifically, Section 21 (3) of the Act provides that;“Any person named in or affected by a decision of the committee who considers the decision to be incorrect may, within fourteen days after the decision, complain to the executive officer of the committee, saying in what respect he considers the decision to be incorrect.” 24.The provision is clear that, any person aggrieved by the decision of the Committee may, within fourteen days, complain to the Executive Officer of the Committee, stating the grounds of dissatisfaction. Section 21(4) mandates such complaint be forwarded to the Executive Officer of the Arbitration Board, which shall hear and determine the matter. Section 22 then empowers the Arbitration Board to hear and determine complaints referred to it under Section 21. The determination of the Board is subject to appeal to the Minister under Section 29. 25.In interpreting and applying Section 21 (3) and (4) of the Act, the learned Judge clearly deduced that the provisions were concerned with objections to the decision of the Committee or the Board following the land adjudication process, which objections are required to be made within 14 days of the decision. As observed by the learned Judge, the Appellant’s Objection No. 45/2021 concerned the decision in case No. 3107–08 of 31/07– 08 rendered on 20th April 2010, and therefore it ought to have been made 14 days after that decision. But having been lodged in 2021, the court concluded that it was filed out of time. 26.We have considered the Judge’s interpretation of the provisions, and can find no fault in the reasoning or in the findings reached. Clearly, the Appellant’s objection was not filed within the 14 days period specified, but 11 years later and as a consequence, well out of time. Similarly, we also find that nothing turns on the issue that the Arbitration Board was improperly constituted, as having been raised outside the 14 days prescribed timeframe, it is time barred having come too late in the day. 27.The next issue is whether the Appellant’ Objection No. 45 of 2021 was a competent statutory objection under Section 26 of the Land Adjudication Act or, an appeal against the Arbitration Board’s decision of 20th April 2010. 28.In terms of the laid down complaints process specified by the Act, Section 26, comes into operation after the adjudication register has been completed and a notice of completion published. It allows any person named in or affected by the adjudication register who considers it to be “incorrect or incomplete in any respect” to object within sixty days after publication. Section 26 specifies that;“If any person named in or affected by the adjudication register who considers it to be incorrect or incomplete in any respect may, within sixty days of the date upon which the notice of completion of the adjudication register is published, object to the adjudication officer in writing, saying in what respect he considers the adjudication register to be incorrect or incomplete.” 29.The provision is clearly concerned with the filing of objections to the contents of the register where a person finds it to be incorrect or incomplete in any respect. The Appellant argued that the word “incorrect” in Section 26 should be interpreted broadly to include substantive errors of law or fact. In this regard, the central question for consideration is whether Section 26 permits reopening or review of a final decision of the Arbitration Board. 30.At this juncture, we consider it necessary to construe the meaning and effect of Section 26. The starting point of statutory interpretation is the ordinary meaning of the words used in the statute. Joubert, JA. in the case of Adampol (Pty) Ltd vs Administrator, Transvaal [1989] (3) SA 800(A) at 804BC held that:“In interpreting the provisions of a statute the Court should apply the golden rule of construction. The plain meaning of the language in a statute is the safest guide to follow in construing the statute. According to the golden or general rule of construction the words of a statute must be given their ordinary, literal and grammatical meaning and if by so doing it is ascertained that the words are clear and unambiguous, then effect should be given to their ordinary meaning unless it is apparent that such a literal construction falls within one of those exceptional cases in which it would be permissible for a court of law to depart from such a literal construction, e.g. where it leads to a manifest absurdity, inconsistency, hardship or a result contrary to the legislative intent.”Whereupon, the text and context of the words of the provision are crucial considerations. The Supreme Court of India in Reserve Bank of India vs. Peerless General Finance and Investment Co. Ltd. and others [1987] 1 SCC 42 observed that:“Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual.” 31.Further this Court the case of The Engineers Board of Kenya vs Jesse Waweru Wahome & others, Civil Appeal No 240 of 2013 held that:“One of the canons of statutory interpretation is a holistic approach… no provision of any legislation should be treated as ‘stand -alone’ An Act of parliament should be read as a whole, the essence being that a proposition in one part of the Act is by implication modified by another proposition elsewhere in the Act.” 32.Section 26 of the Land Adjudication Act provides that any person named in or affected by the adjudication register who considers the register to be “incorrect or incomplete in any respect” may object within sixty days of the publication of the notice of completion of the adjudication register. The ordinary meaning of the word “incorrect” denotes an error, mistake, or inaccuracy in the register, such as the incorrect spellings of names, or parcel number, or general mis-recording. The word “incomplete” denotes an omission from the register, such as a missing name, typographical error in a parcel number, inter alia. The ordinary meaning of the words in question relates to the accuracy and completeness of the adjudication register as a record, and not the determination of physical boundaries or ownership disputes or re adjudication of claims, as determined earlier in the adjudication process. 33.From a reading of the statute, Section 26 comes into operation only after the adjudication register has been completed and a notice of completion published. When read textually within the structure of the Act, it is patently clear that Section 26 is not part of the dispute resolution mechanism of the adjudication process under Sections 21 and 22 of the Act, but rather a mechanism limited to ensuring that the adjudication register accurately reflects the physical land demarcations arrived at following the adjudication process. It is a corrective provision of the register itself, and not an appellate provision on the physical land demarcation. 34.In the case of Law Society of Kenya vs Attorney General & another [2019] KESC 16 (KLR) the Supreme Court held that:“…intention is construed by scrutinising the language used in the provision which inevitably discloses its purpose and effect. It is the task of a court to give a literal meaning to the words used and the language of the provision must be taken as conclusive unless there is an expressed legislative intention to the contrary.” 35.On 20th April 2010, the Arbitration Board, determined the adjudication dispute with finality between the parties in favour of the 5th Respondent. It was following publication of the adjudication register in October 2020, that the Appellant filed Objection No. 45 of 2021 under Section 26 of the Act. The provision permits a person named in or affected by the adjudication register to object where the register is “incorrect or incomplete in any respect,” if the objection merely asserted that the adjudication register did not accurately reflect the Arbitration Board’s decision. So that, where the objection seeks to alter the Arbitration Board’s decision, or to vary the boundary positions on the ground, or to introduce a new parcel, such complaint is inadmissible under Section 26, and is ultra vires the Act. 36.Conversely, the powers of the Land Adjudication Officer under Section 26 are limited to considering whether the adjudication register is incorrect or incomplete and, after inquiry, making a determination on that objection. The provision does not confer power upon the Land Adjudication Officer to sit on appeal over the Arbitration Board or to vary a final determination rendered pursuant to Sections 21 and 22. By allowing the objection and creating Plot No. 2932, the Land Adjudication Officer effectively varied the Arbitration Board’s 2010 determination, which was tantamount to reopening and altering a final decision of the Arbitration Board determined in accordance with Sections 21 and 22 of the Act. Such action went beyond correcting the register. It altered rights that had already been adjudicated and determined. 37.This Court in the case of the Speaker of National Assembly vs Karume [1992] KLR 21 held;“Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures." 38.Accordingly, in substance and effect, the complaint was not a fresh independent challenge to the contents of the adjudication register within the meaning of Section 26, but a belated appeal against the Arbitration Board’s determination rendered eleven years earlier. We are therefore satisfied that the learned Judge correctly found that Objection No. 45 of 2021, though framed as an objection under Section 26, was in substance an appeal against the Arbitration Board’s decision rendered eleven years earlier which was unlawful and a nullity. 39.Turning to whether the learned Judge properly exercised her judicial review jurisdiction in granting orders of certiorari and mandamus, it is trite that judicial review is concerned not with the merits of a decision, but with the legality of the decision-making process. 40.In the text book by Peter Kaluma, Judicial Review, Law Procedure and Practice at page 46 the author states;“The remedy of judicial review is radically different from those of review and appeal. Judicial Review is not an appeal from a decision but a review of the decision-making process and the legality of the decision-making process itself. When determining an appeal, the court is concerned with the merits of a decision. Conversely in Judicial review the court’s exclusive concern is with the legality of the administrative action or decision in question. Thus, instead of substituting its own decision for that of another body, as happens in appeals, the court in an application for judicial review is concerned with the question as to whether or not the action under attack is lawful or should be allowed to stand or be quashed.’’ 41.Similarly, in the case of Municipal Council of Mombasa vs Republic & Umoja Consultants Ltd [2002] eKLR, this Court emphasized that although judicial review is concerned with the decision making process, not with merits of the decision itself; the court would concern itself with issues as to whether the decision makers had jurisdiction; whether persons affected by the decision were heard before it was made and whether in making the decision the maker took into account relevant matters or did take into account irrelevant matters. 42.In the case of OJSC Power Machines Limited, Trans Century Limited, and Civicon Limited (Consortium) vs. Public Procurement Administrative Review Board Kenya & 2 others NRB CA 28 of 2016, [2017] eKLR, this Court stated that:“The law on the jurisdiction of the High Court to entertain judicial review proceedings are encapsulated in several decisions, some of which were cited before us while the learned Judge applied others in his judgment. The law, from these decisions is to the following effect; That the purpose of judicial review is to ensure that a party receives fair treatment in the hands of public bodies; that it is the purpose of judicial review to ensure that the public body, after according fair treatment to a party, reaches on a matter which it is authorized by law to decide for itself, a conclusion which is correct in the eyes of the court in a judicial review proceeding. Put another way, judicial review is concerned with the decision-making process, not with the merits of the decision itself. In that regard, the court will concern itself with such issues as to whether the public body in making the decision being challenged had the jurisdiction, whether the persons affected by the decision were heard before the decision was made and whether in making the decision, the public body took into account irrelevant matters or did not take into account relevant matters”. 43.In the instant case, the Land Adjudication Officer, in allowing Objection No. 45 of 2021 and creating Plot No. 2932, effectively reviewed and overturned a final determination of the Arbitration Board rendered in 2010. As stated above, Section 26 of the Land Adjudication Act did not confer the Land Adjudication officer with appellate or review jurisdiction over Arbitration Board decisions. In effect, the Land Adjudication Officer acted in excess of her jurisdiction and ultra vires the statute. It also followed that the Minister’s decision affirming that decision was equally tainted, and the learned Judge was right in so finding. 44.Consequently, where a public authority acts without jurisdiction, the remedies of certiorari and mandamus become available. The nature, scope and limits of the prerogative remedies remain grounded in settled jurisprudence, classically expounded by this Court in the case of Kenya National Examination Council vs Republic; Njoroge & 9 others (Ex parte) (Civil Appeal 266 of 1996) [1997] KECA 58 (KLR) thus:“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty.Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right or no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual. The order must command no more than the party against whom the application is legally bound to perform. Where a general duty is imposed, a mandamus cannot require it to be done at once. Where a statute, which imposes a duty, leaves discretion as to the mode of performing the duty in the hands of the party on whom the obligation is laid, a mandamus cannot command the duty in question to be carried out in a specific way...Only an order of certiorari can quash a decision already made and an order of certiorari will issue if the decision is without jurisdiction or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons.” 45.Having found that the decisions of both the Land Adjudication Officer, and the Minister were illegal and unlawful, the learned Judge was entitled to issue the orders of certiorari to quash those decisions and mandamus to direct the relevant public officers to implement the Arbitration Board’s decision of 20th April 2010, and we so find. 46.Finally on the principle governing costs is set out in Section 27(1) of the Civil Procedure Act, which provides that costs follow the event unless the court, for good reason, orders otherwise. The award of costs is therefore discretionary, but that discretion must be exercised judicially and not capriciously. 47.This Court, in the case of Farah Awad Gullet vs CMC Motors Group Limited [2018] KECA 158 (KLR) addressed the principles governing the award of costs and stated as follows:“It is our finding that the position in law is that costs are at the discretion of the court seized of the matter, with the usual caveat being that such discretion should be exercised judiciously, meaning without caprice or whim and on sound reasoning. Secondly, that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown.”See also Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai & 4 Others [2014] eKLR. 48.In sum, the appeal is without merit and is hereby dismissed. As the dispute related to members of one family, we order that each party bears its own costs. 49.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 24TH DAY OF JULY, 2026.D. K. MUSINGA………………………………JUDGE OF APPEALA. K. MURGOR……………………………JUDGE OF APPEAL JAMILA MOHAMMED………………………………JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR