https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3313

Republic of Kenya v National Land Commission & 3 others; Kibua & another (Ex parte Applicants) (Environment and Land Judicial Review Case E003 of 2023) [2026] KEELC 3313 (KLR) (2 June 2026) (Judgment) Neutral citation: [2026] KEELC 3313 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Judicial Review Case E003 of 2023 AY Koross, J June 2, 2026 Between Republic of Kenya Applicant and The National Land Commission 1st Respondent Th County Land Registrar Machakos County 2nd Respondent The County Government Of Moachakos 3rd Respondent and Ethics and Anti-Corruption Commission Interested Party and Thomas Nzioki Kibua Ex parte Applicant Annah Syokau Mbate Ex parte Applicant Judgment 1.Pursuant to leave granted by this court on 23 March 2023, the ex parte applicants moved this court under Order 53 Rule 3 of the Civil Procedure Rules and filed a notice of motion dated 22 March 2023, seeking the following judicial review orders and other orders: -a.An order of mandamus to compel the 1st respondent to issue the 1st ex parte applicant with the lease for property number Machakos/Municipality/ Block 1/681 and to forward the lease to the 2nd respondent for registration, and to issue the certificate of lease for the said property to the 1st ex parte applicant.b.An order of mandamus to compel the 1st respondent to issue the 2nd ex parte applicant with the lease for property number Machakos/Municipality/Block 1/679 and to forward the lease to the 2nd respondent for registration and the issuance of the certificate of lease for the said property to the 2nd ex parte applicant.c.An order of prohibition to prohibit the 3rd respondent, whether acting themselves, through agents, servants, or anyone acting on their instructions, from conducting or carrying out any proceedings relating to the property Machakos/Municipality/Block1/679 and Machakos/Municipality/Block 1/681, from making any adverse recommendations thereon, or from interfering in any other manner with the ex parte applicants' developments on the said properties.d.An order of mandamus to compel the 3rd respondent to receive, consider and grant the ex parte applicants' respective applications for the development of their properties dated 20th January 2020, or any other development application subsequently made.e.The honourable court be pleased to grant such other or further reliefs as it may deem fit in the circumstances.f.The costs of these proceedings be borne by the respondents. 2.The motion was supported by the statutory statement and supporting affidavits of the ex parte applicants, which were both sworn on 22 March 2023, and reliance was also placed on several annexures to these affidavits. 3.They succinctly assert that the 1st ex parte applicant is the duly allotted owner of property number Machakos/Municipality/Block 1/681 (suit parcel), as evidenced by a letter of allotment reference no. 21658/X dated 21st December 1993 and a consent to transfer dated 29th September and 17th November 2000, whereas the 2nd ex parte applicant is the duly allotted owner of property number Machakos/Municipality/Block 1/679 (suit parcel), as evidenced by a letter of allotment reference no. 21658/X dated 21st December 1993 (suit parcel). These two properties shall henceforth be referred to as “suit parcels”. 4.Additionally, the allocation of the suit parcels arose from the same Part Development Plan (PDP) reference no. MKS56/92/4 dated 3rd May 1992. Initially, the properties were labelled as UNS B.C.R plot nos. 6 and 7, as indicated in the respective letters of allotment. As a result of the allocation of land through the letters of allotment, the ex parte applicants were guided by the Land (Allocation of Public Land) Regulations 2017 (“Regulations”) in obtaining title documents to their properties. That they followed due process and that a cadastral map was provided in November 1997. 5.They informed the court that the 1st ex parte applicant purchased his suit parcel from Salome Nduku Ndunda by a sale agreement dated 14th July 2000, which recognised that the initial allottee, Kanu Women's Group, remained the proprietor. In performance of this agreement, Salome Nduku Ndunda and Kanu Women's Group provided the 1st ex parte applicant with a copy of the letter of allotment, and Kanu Women's Group subsequently applied for consent to transfer dated 29th September 2000 and obtained confirmation from the Commissioner of Lands (the predecessor of the 1st respondent) dated 17th November 2000. 6.As for the 2nd ex parte applicant, she was also allocated her suit parcel via a letter of allotment dated 21st December 1993. In compliance with the requirements, the 2nd ex parte applicant paid the charges demanded by banker’s cheque dated 17th January 1994 and received an acknowledgement from the Commissioner of Lands dated 19th January 1994. 7.That the ex parte applicants had, on numerous occasions over the years, followed up on obtaining titles to the suit properties. Despite following up in person, through agents, and in writing, it had now been 23 years for the 1st ex parte applicant and 29 years for the 2nd, with no formal communication or response from the 1st and 2nd respondents. Furthermore, without any justification, the respondents have unlawfully refused to issue the title documents and development permits to them to date, and it was now a combined 52 years (23 and 29 years) of refusal or omission by the 1st and 2nd respondents, and over 3 years of refusal or omission by the 3rd respondent. 8.They stated that the 3rd respondent, through its agents, servants, and persons purporting to act on its instructions, had harassed the ex parte applicants’ authorised occupants on the subject properties, directed that any developments be removed, and ordered the ex parte applicants to cease any activity on the subject properties. 9.They termed the respondents’ decisions as unfair, unreasonable, arbitrary, malicious, and capricious, and violated the right to fair administrative action, as the ex parte applicants had not been provided with any written reasons for the refusal to issue title documents and development permits. They asserted that the respondents' omissions were irrational, an abuse of power, oppressive, punitive, grossly unlawful, and unconstitutional. 10.To them, these actions constituted a gross travesty of justice, as it violated Articles 40 and 47 of the Constitution of Kenya, 2010, Sections 4, 5, and 6 of the Fair Administrative Actions Act, Section 12(1) of the Land Act, Rule 36 of the Land (Allocation of Public Land) Regulations 2017, and Section 56(c) of the Physical Land Use and Planning Act No. 3 of 2019. 11.By the replying affidavit of Benedict Ngumbau, its Ag. Chief Officer, Housing and Urban Development, in the County Department of Lands, Housing, Urban Development and Road Transport Section, deposed to on 21 April 2026, the 3rd respondent opposed the motion. 12.It was stated that the suit parcels were located within Machakos Municipality Block 1/32 (“3rd respondent’s land”), in Ngei Estate. It was reserved and developed as a housing estate under the defunct Masaku County Council, the predecessor of the 3rd respondent, from whom the property was handed over. It had been registered as government land since 25th February 1974 and contained 24 units of low-grade housing, developed through a loan from the National Housing Corporation (“NHC”), cleared by the 3rd respondent in July 2021. After that, the houses and site were transferred to the 3rd respondent, and tenants currently pay monthly rent to the 3rd respondent. 13.Moreover, the court was informed that the 3rd respondent’s land had never been available for alienation or transfer to private persons, contrary to the ex parte applicants’ claims. It elaborated on how public land was allocated prior to the 2010 Constitution, when it stated that: -i.Ordinarily, land reserved for public use was never available for alienation, and only in very rare cases would it be allocated, and even so, it followed a rigorous process, which in the initial stages involved the District Development Committee, chaired by the District Commissioner, changing the land’s use. Members of Parliament and heads of departments had to approve the decision.ii.That in instances of open or undeveloped public land, approval was required from the Local Authority and the Minister for Local Government. Allocation was done through the District Plots Allocation Committee, following a local authority resolution. In this second mode of allocation, those wishing to be considered for allocation were notified by public notice to ballot for the plots.iii.THAT before the District Plots Allocation Committee was formed, a part development plan was prepared, circulated for comments from the District Commissioner, District Public Health Officer, Town Clerk, District Public Works Officer, District Lands Officer, and Clerk to the County Council. Approval for allocation was then sought from the Commissioner of Lands. 14.It was averred that the ex parte applicants’ allocation did not comply with the requisite procedure and that there was no indication that Salome Nduku Ndunda was acting on behalf of the KANU Women’s League, a stranger to the 3rd respondent. Therefore, according to it, the agreement for sale held by the ex parte applicants was void, incapable of conferring any rights on them, and unenforceable against the 3rd respondent. It was asserted that the alleged notification from KANU Women’s League (later referred to as Mwangaza Women Group) to the 1st ex parte applicant on 17th November 2000 was inconsequential, as the suit land was still registered in the name of the County Council of Masaku. 15.It stated that the alleged request for a report on the allocation of the 1st ex parte applicant’s suit parcel and confirmation of its status by the 1st respondent from the Chief Officer of the 3rd respondent (via letter GMC 4/20/1/15 dated 29th January 2015) did not confer proprietary rights to the 1st ex parte applicant. Further, it was not tenable to issue development permission, as the suit parcels never held title documents. The 3rd respondent's attempt to enforce compliance against the ex parte applicants was futile, as they were never found within the property precincts. 16.It was maintained that the 1st ex parte applicant had developed on government land without the approval of the 3rd respondent and had granted access to Safaricom Limited to install a mast at the 3rd respondent’s expense. 17.Similarly, the interested party (“IP”), through the replying affidavit of Salad Wato Boru, its investigator, sworn on 20 March 2024, opposed the motion. It was asserted that the IP initiated inquiries into allegations that the 3rd respondent’s land (formerly LR 909/563), which had been designated for public use, was fraudulently, illegally, or otherwise unlawfully allocated to private individuals. 18.Investigations established that, according to PDD (approved development plan no. 39) of reference no. 56/67/3, approved on 9 November 1967 by the then Commissioner of Lands, a parcel of land was set aside for the development of a staff rental housing scheme. In 1968, a survey of the aforementioned parcel resulted in the creation of L.R No. 909/563, measuring 4.08 acres. 19.The commissioner of lands was notified of the survey’s approval by the director of survey through a letter dated 22 October 1968. On 22 November 1973, L.R No. 909/563 was converted to Machakos Municipality Block 1/32 -the 3rd respondent’s land. In the 1970s, the NHC constructed twenty-four housing units on the 3rd respondent’s land, which remain on the parcel to date. The NHC subsequently transferred management of these housing units to the 3rd respondent. 20.Therefore, the 3rd respondent’s land is public land and was not available for allocation to any private individual or other entity. Being alienated public land, it was held in trust for the public and could not be alienated in contravention of the Constitution and relevant laws. Thus, it was not available for allocation. 21.With respect to the documents held by the ex parte applicants, it was asserted that on 21 December 1993, the KANU Women League was irregularly issued a Letter of allotment, ref. No. 21658/X, for land described as UNS. B.C.R. PLOT NO. 7 - MACHAKOS, on behalf of Machakos County Council, in total disregard of the existing alienation and public use. A PDP No supported this allotment. MKS. 56/92/4, dated 3 May 1992, which lacked an approved development plan number. 22.That there was no evidence showing how the KANU Women League applied for the allocation of the land described as UNS. B.C.R. PLOT NO. 7 - MACHAKOS. Furthermore, the KANU Women League accepted the allotment after the 30 days specified in the allotment letter had expired. Investigations demonstrated that UNS. B.C.R. PLOT NO. 7 - MACHAKOS was surveyed under FR no. 249/48 as Machakos Municipality Block 1/587. Further investigations revealed that the survey plan ref. No. 328/120 was prepared to cancel Municipality Block 1/587 and create the 1st ex parte applicant’s land. The findings also showed that the parcel eventually allocated to the 1st ex parte applicant differs from the land referred to as UNS. B.C.R. PLOT NO. 7 - MACHAKOS in PDP no. MKS. 56/92/4 attached to the letter of allotment, ref. no. 21658/X, dated 21 December 1993. 23.It was stated that the ex parte applicants were relying on letters of allotment, reference no. 21658/X, which includes a PDP no. MKS. 56/92/4, which was neither approved nor present in the department of physical planning records. 24.Significantly, when the matter came up before this court on 14 April 2026, Mr Wangondu for the 1st respondent and Mr. Kuria for the 2nd respondent wholly associated themselves with the IP’s documents as filed in court. 25.As directed by the court, the matter was canvassed by written submissions, with the ex parte applicants’ law firm on record, Ms. Alice Mugo & Associates, filing its submissions dated 26 March 2026. They identified 5 issues for determination, of which 4 concerned whether the reliefs sought in the motion should be granted, and the 5th was in respect of whether the IP’s position was appropriate to these proceedings. 26.Regarding the IP, submissions dated 13 April 2026 were filed by its counsel, Ms. Culent S. Lunyolo, and the issues framed in those submissions were whether there existed a valid letter of allotment capable of passing good title; whether the plots issued to the ex parte applicants correspond to the plots referred to in the letters of allotment; and whether the PDP plan no. MKS. 56/92/4 was valid, and whether the ex parte applicants were entitled to the orders sought in the judicial review application. 27.Nonetheless, upon review of the entire case and rival submissions, this court identifies the issues for determination as whether judicial review proceedings are appropriate in these proceedings and, if so, whether the motion is merited. We proceed to address these issues concurrently. 28.The ex parte applicants and the IP agree that proceedings for judicial review, as outlined under the Civil Procedure Rules, are not suitable for a merit review of the case. This court concurs with both parties, as this principle has been established by jurisprudence. The Supreme Court of Kenya, in the case of Dande & 3 others v Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR), addressed this issue and stated as follows at paragraph 85: -“It is clear from the above decisions that when a party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party files a suit under the provisions of order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the court can only limit itself to the process and manner in which the decision complained of was reached or action taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se.” 29.This decision affirmed the apex court’s decision in SGS Kenya Ltd v Energy Regulatory Commission & 2 others [2020] KESC 64 (KLR), where it held:-“ 40.The petitioner approached the High Court by way of the prescribed procedures under Judicial Review, which revolve around the paths followed in decision-making. Such a course, as the appellate court properly held, is not concerned with the merits of the decision in question. The law in this regard, which falls under the umbrella of basic “Administrative Law”, is clear enough, and it is unnecessary to belabour the point.” 30.In the present matter, the ex parte applicants contend that their application does not necessitate a review of the substantive merits of the case. Instead, they assert that the proceedings concern solely the process undertaken by statutory bodies in reaching their decisions, alleging that such actions were unfair, unreasonable, unlawful, arbitrary, and motivated by malice and caprice. They further argue that these actions breached their right to a fair administrative procedure by failing to provide written reasons for the denial of title documents and development permits. The question then arises: Does this case call for a merit review? 31.This court has carefully examined the various documents submitted before it and has found that the ex parte applicants possess allotment letters pertaining to the suit parcels. The 3rd respondent asserts that these documents are illegal, as the suit parcels were never available for allocation, having been alienated as public land with a title vested in the 3rd respondent. The 3rd respondent further contends that the land was developed with assistance from NHC, a government body, and that residential buildings were constructed for public servants. Consequently, in the IP’s view, this matter warrants a review of the case on its merits and relies on the case of Riungu v Chief Land Registrar & 4 others [2024] KEELC 3244 (KLR), which stated:-“The nature of evidence in Judicial review proceedings is based on affidavit evidence which is not the best suited form of evidence to be used by this court in determining the issue of ownership of the suit property. In my humble view, the dispute in this case falls outside the scope of this court sitting as a Judicial Review court. From the record, it is clear that a lot of documentary evidence have been adduced by the parties and the matter can only be resolved through an ordinary suit where witnesses are called and oral evidence taken to determine the ownership of the property. In view of the fact that the issue of ownership of the suit property is highly contested, unless and until such issue is determined with finality, this court is not persuaded that the orders sought should be granted.” 32.With all due respect to the ex parte applicants and in concurrence with the IP and Riungu (Supra), this matter warrants a merits review, as this court is being called upon to scrutinise the ownership of land, with various parties holding divergent documents allegedly conferring ownership on them. 33.Although the ex parte applicants seek to distance themselves from the ownership issue and claim that they are only pursuing prerogative orders, such a stance is inconsistent with the assertions contained in their affidavits, as they have been aware from the outset that their occupancy and ownership were questioned by the IP immediately prior to filing these proceedings. It appears they acted hastily in approaching this court to preclude investigations. This is evidenced by their assertions that the 3rd respondent and the IP had visited their premises and that the IP questioned their relatives in 2023 during its investigation into the alleged land-grabbing of the suit parcels. 34.The question of ownership being highly contentious, it can only be properly addressed through oral testimony in an ordinary suit. Most importantly, during these proceedings, the court was informed of several pending cases concerning the third respondent’s land, namely ELCLC nos. 89/2024, 91/2024, 92/2024, and 93/2024. Accordingly, and in light of the circumstances, this court finds that unless and until the ownership of the suit property is definitively determined on the merits, the court is not persuaded that the orders sought should be granted. 34.In the end, for the reasons and findings set out above, the notice of motion dated 22 March 2023 is found not to be merited. It is dismissed. It is trite law that costs follow the event, and since the ex parte applicants were unsuccessful, costs are awarded to the respondents and IP. Orders accordingly. DELIVERED AND DATED AT MACHAKOS THIS 2ND DAY OF JUNE, 2026.HON. A. Y. KOROSSJUDGE02.06.2026Judgment delivered virtually through Microsoft Teams Video Conferencing PlatformIn the presence of;Ms. Kanja Court Assistant.Miss Lunyolo for interested parties.Mr. Wangondu for 1st respondent.Mr. Kuria for 2nd respondent.Miss Alice Mugo for exparte applicant.