https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4711

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT KERUGOYA** **ELCL JR APPL. NO. E005 OF 2024** **HARRY WASHINGTON NJAGE …………………… EX-PARTE APPLICANT** **VERSUS** **THE PRINCIPAL MAGISTRATE,** **KERUGOYA LAW COURTS ………………….…………. 1ST RESPONDENT** **NJERI KARANI …………………………………………… 2ND RESPONDENT** **AND** **MATHEW MURAGE KARANI ……………………. 1ST INTERESTED PARTY** **JEMIMA WATHUIYA KARANI …………………... 2ND INTERESTED PARTY** **HELEN THIGUKU NYAGA ………………………. 3RD INTERESTED PARTY** **RODAH WARUGURU KARANI ………………… 4TH INTERESTED PARTY** **RULING** ***[Chamber Summons Dated 3rd February 2025]*** 1. This ruling concerns the Amended Ex Parte Chamber Summons dated 3rd February 2025 brought under the provisions of **Order 53 Rules 1(1), (2) and 4 of the Civil Procedure Rules, the Law Reform Act, Cap 26 Laws of Kenya** and all other enabling provisions of the law. Through the application, the Applicant seeks for inter alia: * 1. *Leave to commence judicial review proceedings to challenge the decisions of the Principal Magistrate made on 11th August 2020 and 29th January 2021.* 2. *That such leave do operate as a stay of the said decisions pending the hearing and determination of the intended judicial review proceedings.* 3. *Costs of the application.* The application is supported by the verifying affidavit, the supporting affidavit and a supplementary affidavit all sworn by Harry Washington Njagi, who describes himself as the personal representative of the Estate of Evans Njagi Njure (deceased). 1. The 1st Respondent opposes the application through Grounds of Opposition dated 27th June 2025. 2. The 2nd Respondent and the Interested Parties opposed the application through the replying affidavit of Njeri Karani and Mathew Murage Karani sworn on 27th February 2025, together with grounds of opposition of even date. **The Exparte Applicant's Case:** 1. The Applicant's case stems from proceedings conducted before the Principal Magistrate's Court in **Kerugoya Miscellaneous Application No. 16 of 2020**, which culminated in the impugned decisions of 11th August 2020 and 29th January 2021. According to the Applicant, those proceedings concerned **L.R. No. Baragwe/Kariru/574,** a parcel of land that was at the material time, registered in the name of Evans Njagi Njure (deceased). 1. It is the Applicant's case that the 2nd Respondent moved the subordinate court through an ex parte application, following which orders were issued resulting in the cancellation of the deceased's proprietorship over the suit property, and its subsequent registration in the name of the 2nd Respondent. He maintains that soon thereafter, the 2nd Respondent subdivided the land and transferred the resultant subdivisions to third parties, thereby fundamentally altering the status of the property. 2. The Applicant states that those developments prompted him to institute **Kerugoya ELC No. E006 of 2023**, wherein he sought various reliefs on the basis that the cancellation of the deceased's title had been undertaken unlawfully and without due process. He contends that the impugned orders substantially prejudiced both his rights as the personal representative of the estate, and the beneficial interests of the beneficiaries. It is on that basis that he seeks leave to institute judicial review proceedings to quash the decisions made on 11th August 2020 and 29th January 2021, maintaining that no prejudice will be occasioned to any party, if leave is granted. 3. In amplification of that position, the Applicant explains that Evans Njagi Njure died on 31st July 2005, and that the original parcel of land, **L.R. No. Baragwe/Kariru/574**, now subdivided into **L.R. Nos. Baragwe/Kariru/3668, 3669 and 3670,** had previously been the subject of **Embu Civil Case No. 63 of 2002** between his late father and the 2nd Respondent. According to him, that litigation culminated in a decree dated 27th September 2011, a subsequent court order dated 25th July 2014, and eviction orders issued against the 2nd Respondent. 4. The Applicant further states that following his father's death, his mother, Charity Wangari Njagi, was substituted in the suit through an order issued on 5th January 2010 for purposes of executing the eviction orders. Following her demise, the family was in the process of seeking an extension of time within which to execute the decree, when the 2nd Respondent commenced **Kerugoya Miscellaneous Application No. 16 of 2020** seeking orders terminating what she described as joint ownership between herself, and her late husband and registering the suit property in her sole name. 5. The gravamen of the Applicant's complaint is that the 2nd Respondent neither produced the green card, nor an official search to demonstrate the alleged joint ownership, yet the subordinate court proceeded to determine the application in the absence of both the registered proprietor and the legal representative of the estate. He maintains that the 2nd Respondent was never registered as a joint proprietor alongside her late husband, and that the entries contained in the green card demonstrate that the property had already been transferred to his late father. In his view, had the relevant ownership documents been placed before the court, a different determination would have been reached. 6. The Applicant further states that the 2nd Respondent subsequently returned to the same court through another application dated 29th January 2021, seeking orders authorising the Executive Officer to execute all the necessary transfer documents on behalf of his deceased father, and directing the Land Registrar to dispense with the production of the original title deed, and passport photographs. According to him, those orders were equally granted ex parte and upon their registration against the title on 2nd March 2021, the 2nd Respondent proceeded to subdivide the property into **L.R. Nos. Baragwe/Kariru/3668, 3669 and 3670**. 7. The Applicant therefore contends that the subordinate court sanctioned the cancellation of the deceased's proprietorship without according either the registered proprietor, or his legal representative, an opportunity to be heard, thereby occasioning grave procedural injustice. He explains that upon discovering the cancellation of the title, he filed an application dated 19th May 2021 seeking to set aside the ex parte orders issued on 11th August 2020 and 18th February 2021. Although that application was subsequently allowed, it was subject to conditions requiring him to prosecute the matter within ninety days, and to pay thrown away costs of **Kshs. 15,000/=,** failing which the orders would lapse. 1. Finally, the Applicant explains that the conditional ruling was delivered in the absence of his advocate, and without notice after the ruling date had been postponed on several occasions. According to him, his advocate only became aware of the ruling in December 2022, by which time the period prescribed by the court had already lapsed. He therefore urges this Court to grant him leave to institute judicial review proceedings in order to challenge the impugned decisions. **The 1st Respondent's Case:** 1. The 1st Respondent did not file a replying affidavit in opposition to the application. Its opposition is contained in the Grounds of Opposition dated 27th June 2025. The 1st Respondent takes the position that the application is incompetent, misconceived and does not disclose an arguable case against it. It maintains that the Principal Magistrate acted within the confines of judicial authority and exercised judicial discretion lawfully, fairly and in accordance with the applicable legal principles. 2. It is further the 1st Respondent's case that judicial review is not the appropriate remedy in the circumstances of this matter. According to the 1st Respondent, the Applicant is, in substance, challenging the merits of judicial decisions, which ought properly to be pursued through an appeal, or an application for review, rather than by way of judicial review proceedings. 3. The 1st Respondent further contends that the jurisdiction of a judicial review court is confined to examining the legality of the decision-making process, and not the correctness of the decision itself. The 1st respondent therefore contended that the Applicant has not demonstrated any illegality, irrationality or procedural impropriety on the part of the Principal Magistrate, capable of warranting the intervention of this Court. 4. It is also the 1st Respondent's position that the orders sought would, if granted, have the effect of inviting this Court to sit on appeal against the decisions of a court of competent jurisdiction, which is impermissible in law. The application is further said to offend the doctrine of judicial independence by inviting this Court to interfere with the exercise of judicial authority vested in the subordinate court. 1. Lastly, the 1st Respondent contends that the Applicant has failed to satisfy the threshold for the grant of leave under **Order 53 of the Civil Procedure Rules**, and that allowing the application would undermine the finality of judicial determinations and prejudice the fair administration of justice. It consequently urges the Court to find that the application amounts to an abuse of the court process and to dismiss it with costs. **The 2nd Respondent's and Interested Parties’ Case:** 1. The application is opposed by the 2nd Respondent together with the Interested Parties through the Replying Affidavit sworn on 27th February 2025 by the 2nd Respondent and Matthew Murage Karani, on behalf of themselves and the Interested Parties. They also filed Grounds of Opposition of even date. Their case is that the present application is an afterthought, having been brought approximately three years after the impugned decisions of 11th August 2020 and 29th January 2021. They contended that the application was instituted outside the period prescribed by law for commencement of judicial review proceedings, and that the Applicant has neither sought extension of time nor offered any explanation for the delay. 1. The 2nd Respondent and the Interested Parties further contended that the Applicant has already instituted a similar case in **Kerugoya ELC No. E006 of 2023,** in which he seeks to challenge the same decisions. According to them, the present proceedings amount to an attempt to litigate the same dispute through parallel proceedings, and are therefore is an abuse of the court process. 2. They maintain that the learned Principal Magistrate considered all the circumstances presented before the court before rendering the impugned decisions, and at no time did he act outside the powers vested in him. It is therefore their position that there exists no basis upon which the decisions of the subordinate court should be disturbed. 3. They further contend that litigation must come to an end and that the 2nd Respondent, together with the Interested Parties, ought to be allowed to enjoy their respective parcels of land without further interruption. It is also their case that granting leave to commence judicial review proceedings would serve no useful purpose, in view of the provisions of **Section 9(3) of the Law Reform Act and Section 9(1) of the Fair Administrative Action Act**, which they contend render the intended proceedings incompetent owing to the lapse of time. They therefore, pray that the Amended Chamber Summons dated 3rd February 2025 be dismissed with costs. 1. In the Grounds of Opposition, the 2nd Respondent and the Interested Parties further contended that the application is statute-barred for offending the provisions of **Order 53 Rule 2 of the Civil Procedure Rules and section 9(3) of the Law Reform Act**. They maintain that the application was filed outside the prescribed six-month period from the date of the impugned decisions, and that no prayer has been made seeking extension of time within which to commence judicial review proceedings. 2. The court on 21st July 2025, and 17th December 2025 directed parties to file and exchange submissions on the application within the timelines given. **The Applicant’s Submissions:** 1. The learned Counsel for the Applicant filed their submissions dated 20th July 2025, and inter alia submitted that the Amended Chamber Summons dated 3rd February 2025 seeks leave to institute judicial review proceedings against the decisions of the Principal Magistrate made in **Kerugoya Miscellaneous Application No. 16 of 2020** on 11th August 2020 and 29th January 2021. Counsel further submitted that, pursuant to the directions of the Court, the Applicant filed a Supplementary Affidavit sworn on 3rd February 2025, together with documentary evidence in support of the application. Counsel also noted that the application was opposed by the 2nd Respondent and the Interested Parties through a Replying Affidavit, while the 1st Respondent opposed it by way of Grounds of Opposition. 1. It was submitted that the Applicant challenges the legality of the decision by the Principal Magistrate cancelling the title registered in the name of Evans Njagi Njure (deceased) in the absence of the Applicant. Counsel relied on ***De Smith's Judicial Review (6th Edition)*** and submitted that a decision may be impugned for illegality where it contravenes or exceeds the terms of the power authorising the decision, pursues an objective other than that for which the power was conferred, is not authorised by any power, or contravenes or fails to implement public policy. 1. Counsel further relied on the case of ***Commissioner of Lands versus Kunste Hotel Limited, Civil Appeal No. 234 of 1995***, submitting that judicial review is concerned with the decision-making process rather than the merits of the impugned decision or private rights. Counsel consequently urged the Court to grant leave to enable the Applicant to pursue an order of certiorari against the decisions of the Principal Magistrate. **The 1st Respondent's Submissions:** 1. The learned Counsel for the 1st Respondent filed their submissions dated 20th April 2026 in opposition to the Amended Chamber Summons dated 3rd February 2025. Counsel identified two issues for determination, namely whether the 1st Respondent acted within the bounds of its judicial authority and whether the present application satisfies the threshold for the grant of judicial review orders. 2. On the first issue, counsel submitted that judicial officers enjoy constitutional and statutory immunity from liability for acts done or omitted in good faith in the lawful discharge of their judicial functions. Reliance was placed on **Article 160(5) of the Constitution of Kenya, Section 6 of the Judicature Act**, the cases of ***Maina Gitonga versus Catherine Nyawira Maina & Another [2015] eKLR, and Republic versus Resident Magistrate & Others, Miscellaneous Civil Application No. 99 of 2019***, for the proposition that judicial officers cannot be subjected to civil or criminal proceedings arising from the lawful exercise of judicial authority. Counsel submitted that there was no evidence demonstrating that the Principal Magistrate acted outside the scope of his judicial mandate or that the impugned decisions were actuated by malice or bad faith. It was therefore contended that the claim against the 1st Respondent is misconceived, legally untenable, and an abuse of the court process. 1. Turning to the second issue, counsel submitted that the **Fair Administrative Action Act** defines administrative action to include powers, functions, and duties exercised by authorities or quasi-judicial tribunals. Counsel questioned whether a judgment, ruling, or order rendered by a court of competent jurisdiction falls within that definition so as to be amenable to judicial review. Counsel distinguished judicial bodies from quasi-judicial bodies, submitting that ordinary courts exercise judicial functions whereas quasi-judicial bodies are non-judicial entities vested with powers akin to those of courts. 2. Counsel further submitted that although **Article 165(6) of the Constitution** vests the High Court with supervisory jurisdiction over subordinate courts, that jurisdiction is distinct from judicial review jurisdiction. It was argued that supervisory jurisdiction enables the High Court to supervise subordinate courts in the exercise of their judicial mandate, whereas judicial review is concerned with the legality of the decision-making process, and not the merits of the impugned decision. In support of that proposition, counsel relied on the case of ***Republic versus Attorney General & 4 Others ex parte Diamond Hashim Lalji & Ahmed Hasham Lalji* (2014) KEHC 3713 (KLR),** submitting that judicial review is directed at examining jurisdiction, procedural fairness, and the legality of the decision-making process, and is not the proper forum for determining contested questions of fact or the merits of a dispute. 1. Counsel further submitted that the recognised grounds of judicial review are illegality, irrationality, and procedural impropriety, none of which, it was argued, had been established by the Applicant. It was contended that the Principal Magistrate acted within jurisdiction and followed the proper legal procedure. That the Applicant is, in essence, inviting this Court to interrogate the correctness of the impugned decisions rather than the legality of the process by which they were reached. Counsel maintained that the appropriate remedy in those circumstances lay in an appeal rather than judicial review proceedings. 2. Counsel concluded by submitting that the Applicant had failed to demonstrate any basis upon which judicial review orders could issue, since the impugned decisions were made within jurisdiction and in accordance with the law. It was further submitted that the application seeks a re-evaluation of the merits of the subordinate court's decisions, a matter falling outside the scope of judicial review. Counsel consequently urged the Court to dismiss the application with costs for being misconceived, unmeritorious and an abuse of the court process. **The 2nd Respondent's and Interested Parties' Submissions:** 1. The learned Counsel for the 2nd Respondent and the Interested Parties filed written submissions dated 7th January 2026, in which they reiterated the contents of the Replying Affidavit. Counsel submitted that the instant application, having been filed in February 2025, seeks to quash orders made on 11th August 2020 and 29th January 2021, approximately three years after the impugned decisions were rendered. It was therefore submitted that the application is an afterthought and ought to be dismissed with costs. 1. Counsel commenced by citing **Order 53 Rule 1 of the Civil Procedure Rules**, submitting that no application for an order of mandamus, prohibition, or certiorari may be made unless leave has first been granted by the court. Counsel further referred to **Section 9(1) of the Fair Administrative Action Act,** submitting that an aggrieved person may apply for judicial review of an administrative action without unreasonable delay. Reliance was also placed on ***Section 9(3)* of the Law Reform Act**, which provides that leave to apply for an order of certiorari shall not be granted unless the application for leave is made within six months of the judgment, order, decree, conviction, or other proceedings sought to be quashed. 1. Against that statutory framework, counsel submitted that the Applicant came to court long after the expiry of the prescribed six-month period, within which leave ought to have been sought. It was contended that the Applicant had not only delayed for about three years before instituting the present proceedings, but also had not sought extension of time within which to apply for leave to commence judicial review proceedings, and had equally failed to explain the delay. 2. In support of those submissions, counsel relied on the case of ***Republic versus Council of Legal Education & Another Ex parte Sabiha Kassamia & Another* [2018] eKLR**. Counsel concluded by submitting that the Amended Chamber Summons dated 3rd February 2025 is time-barred, lacks merit, and should be dismissed with costs to the 2nd Respondent and the Interested Parties. 1. The following are the issues arising for the court’s determinations: 1. *Whether the application is barred by limitation as contended by the 2nd Respondent and the Interested Parties.* 2. *Whether the decisions sought to be challenged are amenable to judicial review.* 3. *Whether the ex-parte Applicant has established a proper basis for the grant of leave under* ***Order 53 of the Civil Procedure Rules.*** 4. *Who pays the costs?* 2. I have carefully considered the chamber summons, affidavit evidence filed, grounds of opposition, the rival submissions by the learned counsel, the authorities relied upon thereof, and come to the following conclusions: 1. The question of limitation necessarily falls for consideration first. The reason is self-evident. If the Court lacks jurisdiction to entertain the application by reason of a statutory limitation, it cannot proceed to examine the merits of the intended judicial review proceedings. Jurisdiction is everything. Without it, a court has no authority to take one more step. That principle was firmly settled in the case of ***Owners of the Motor Vessel "Lillian S" versus Caltex Oil (Kenya) Ltd* [1989] KLR 1**, where Nyarangi JA observed that: ***"Jurisdiction is everything. Without it, a court has no power to make one more step..."*** * 1. The Applicant seeks leave to commence judicial review proceedings to quash the decisions of the Principal Magistrate made on 11th August 2020 and 29th January 2021. Those are the very decisions identified in both the Amended Chamber Summons and the supporting affidavits as constituting the subject of the intended proceedings. The present application for leave, however, was not filed until 3rd February 2025, approximately four years after the latter decision and considerably longer after the first. The 2nd Respondent and the Interested Parties contend that the application is therefore incompetent by virtue of **Order 53 Rule 2 of the Civil Procedure Rules and Section 9(3) of the Law Reform Act**, both of which prescribe the period within which leave to apply for an order of certiorari may be sought. Their submission is that once six months have elapsed from the date of the impugned decision, the Court lacks jurisdiction to grant leave. * 1. The Applicant, on the other hand, urges the Court to grant leave, maintaining that the impugned decisions were reached through a process that culminated in the cancellation of the deceased's title without according the estate an opportunity to be heard. The jurisdiction invoked by the Applicant is conferred under **Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules.** 2. While **Section 8** grants the High Court jurisdiction to issue the prerogative orders, **Section 9** prescribes the procedure and, in the case of certiorari, imposes a specific limitation period. ***Section 9(3)* of the Law Reform Act** provides that: ***"In the case of an application for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding 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 proceeding..."*** The same requirement is reproduced under **Order 53 Rule 2 of the Civil Procedure Rules**. The language employed in both provisions is mandatory. Parliament did not merely prescribe a procedural timeline; it expressly limited the jurisdiction of the Court to grant leave for certiorari beyond the stipulated period. The Court therefore cannot overlook the question of time or invoke equitable considerations where the statute itself has spoken in clear and unequivocal terms. * 1. The Applicant has nevertheless attempted to explain the delay. His case is inter alia that he only discovered the cancellation of the deceased's title after the impugned orders had been implemented; that he subsequently moved the subordinate court through an application dated 19th May 2021 seeking to set aside the ex parte orders; that the application was allowed subject to conditions requiring prosecution of the matter within ninety days and payment of thrown-away costs; and that the ruling imposing those conditions was delivered in the absence of his advocate and without notice, with the consequence that counsel only became aware of it in December 2022, by which time the stipulated period had lapsed. 2. Those explanations cannot simply be ignored. They demonstrate that the Applicant did not remain entirely inactive following the impugned decisions, and that he attempted, albeit unsuccessfully, to challenge them before the subordinate court. However, the difficulty confronting the Applicant is not merely one of delay, but one of jurisdiction. The issue before this Court is not whether the explanation offered is plausible or sympathetic, but whether the Court possesses jurisdiction to enlarge a limitation period that Parliament has expressly prescribed. 3. In applications seeking leave to commence proceedings for an order of certiorari, the six-month period stipulated under **Section 9(3) of the Law Reform Act** is statutory and mandatory. It is not a procedural timeline capable of enlargement through the exercise of judicial discretion. Consequently, however compelling the explanation for the delay may appear, the Court cannot assume a jurisdiction that the statute has withheld. 4. The position has consistently been affirmed by the courts. In the case of ***Republic versus Council of Legal Education & Another Ex Parte Sabiha Kassamia & Another* [2018] eKLR**, a decision relied upon by the 2nd Respondent, in which the court inter alia held that: ***“…It is also important to point out that the provisions of order 50 Rule 6 of the Civil Procedure Rules, 2010, which grant the Court power to enlarge time, cannot override the express provisions the Statute, namely, Section 9 (3) of the Law Reform Act [28] In this regard, I find useful guidance in the authorities cited by Mr. Oduor, namely, Re an application by Gideon Waweru Githunguri [29] whereby the colonial Supreme Court held that the said Section imposes an absolute period of limitation and Raila Odinga & Others versus Nairobi City Council[30] in which it was held that:-(i)the Rules under the Act cannot override the clear provisions of Section 9 (2) of the Act;(ii)an Act of Parliament cannot be amended by subsidiary legislation;(iii)Parliament in its wisdom has imposed this absolute period of six months and it is the Parliament alone which can amend it…”*** It is important to note that the Court reaffirmed that an application for leave to seek an order of certiorari must be filed within the period prescribed by **Section 9(3) of the Law Reform Act**, failing which the Court lacks jurisdiction to entertain it. * 1. That position accords with the long-standing interpretation of the statutory framework governing judicial review proceedings. I hasten to add that had the court’s jurisdiction to issue judicial review reliefs under **Article 22 and 23(2)(f) of the Constitution** been invoked or sought through a constitutional petition, the limitation challenge the Exparte Applicant have faced in the matter would probably not have been raised in the manner it was. 2. Applying the above principles to the present application, there is no dispute that the decisions sought to be quashed were rendered on 11th August 2020 and 29th January 2021, while the present application for leave was instituted on 3rd February 2025. By then, the statutory period within which leave could lawfully be granted had long expired. In the absence of any legal basis upon which this Court may extend or disregard that limitation, I am constrained to find that the application is statute-barred. 3. That finding substantially disposes of the application. The 1st Respondent urged the Court to find that the impugned decisions are not amenable to judicial review, and that the Applicant is in substance, inviting this Court to sit on appeal against judicial determinations. Those submissions raise important questions regarding the distinction between supervisory jurisdiction, appellate jurisdiction, and judicial review. Equally, the Applicant has raised concerns touching on the legality of the process through which the impugned decisions were reached. However, those questions would only arise if the application had first surmounted the jurisdictional hurdle imposed by **Section 9(3) of the Law Reform Act**. Having found that this Court lacks jurisdiction to grant leave outside the statutory period, it would serve no useful purpose to embark upon an examination of the remaining arguments, as any opinion expressed thereon would be purely academic. * 1. Accordingly, I find that the Amended Chamber Summons dated 3rd February 2025 is incompetent for having been brought outside the period prescribed under **Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules**. The application, therefore, fails. 1. Flowing from the foregoing conclusions, the court finds and orders as follows: 1. **That the amended chamber summons dated 3rd February 2025 is without merit and is dismissed.** 2. **The Ex-parte Applicant will pay the costs for Respondents and interested parties.** It is so ordered. **DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 22ND DAY OF JULY 2026** **S. M. Kibunja** **ELC JUDGE** **In the presence of:** Ex-parte Applicant – No Appearance Respondents – No Appearance Interested Parties – No Appearance Kinyua/Charles - Court Assistant **S. M. Kibunja** **ELC JUDGE**