https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3523

**-REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ELC JR. NO. E002 OF 2026** **IN THE MATTER OF CONTRAVENTION OF RIGHTS & FUNDAMENTAL FREEDOMS UNDER ARTICLES 22, 23, 40(1) &(3), 47(1) & (2), 50(1) OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT, NO. 4 OF 2015** **AND** **IN THE MATTER OF AN APPLICATION BY ALICE OMBAGI NYARANGI FOR JUDICIAL REVIEW BY WAY OF AN ORDER OF MANDAMUS TO COMPEL THE COUNTY LAND REGISTRAR TRANS NZOIA COUNTY TO CAUSE TO BE DEFINED BY SURVEY, THE PRECISE POSITION OF THE BOUNDARY BETWEEN LAND PARCEL NUMBERS KIMININI/MATUNDA BLOCK 4/NYAMIRA/14 AND KIMININI/MATUNDA BLOCK 4/NYAMIRA/13, AND AFFIX BEACONS MARKING THE BOUNDARY.** **AND** **IN THE MATTER BETWEEN** **REPUBLIC----------------------------------------------------------------APPLICANT** **VERSUS** **COUNTY LAND REGISTRAR, TRANS NZOIA-------1ST RESPONDENT** **COUNTY SURVEYOR, TRANS NZOIA---------------2ND RESPONDENT** **HON. ATTORNEY GENERAL---------------------------3RD RESPONDENT** **AND** **KEFA SIRO OBIERO--------------------------------------INTERESTED PARTY** **AND** **EX PARTE ALICE OMBAGI NYARANGI-----------------------APPLICANT** **JUDGMENT** 1. Through a Notice of Motion dated **10/3/2026**, the exparte applicant seeks an order of mandamus to compel the County Land Registrar, Trans Nzoia, to cause to be defined by survey, the precise position of the boundary between land Parcels No. **Kiminini/Matunda Block 4/Nyamira/14** and **Kiminini/Matunda Block 4/Nyamira/13** and affix beacons marking the boundary between the two parcels of land. 2. The reasons are contained in the statutory statement of particulars and a verifying affidavit sworn by Alice Ombagi Nyarangi, sworn on **19/2/2026.** It is averred that the exparte applicant is the proprietor of land parcel No. **Kiminini/Matunda Block 4/Nyamira/14**, to which he had filed a boundary dispute seeking to affix the beacons between it and **Kiminini/Matunda Block 4/Nyamira/13**, that had been altered by the interested party, prompting him to file **Kitale CMC LAND Case No. 60 of 2020**, seeking and obtaining a permanent injunction to restrain him from trespassing into her land. 3. The exparte applicant avers that upon lodging the application with the 1st respondent, she made all the requisite payments as directed, including the survey fees of **Kshs.15,050/=,** search fee of **Kshs.1,050/=** each for the two parcels of land registration ascertainment, and fixing of boundary fee of **Kshs.3,050/=** to facilitate the process. 4. Despite meeting all the aforesaid requirements and thereafter making several requests for a date to undertake the process, the exparte applicant avers that the 1st and 2nd respondents have failed, refused, and are unwilling to visit the two parcels of land and establish the boundary. 5. The exparte applicant avers that the 1st respondent has given no reasons for the refusal to determine her application dated **18/7/2025**, which act violates **Article 47(1)** and **(2)** of the Constitution as read together with the Fair Administrative Action Act. The exparte applicant avers that it is in the interest of justice for this court to intervene; otherwise, she shall continue to suffer undue prejudice at the behest of the interested party. 6. In the verifying affidavit, the exparte applicant has attached a copy of the application dated **18/7/2015**, a copy of the decree in **Kitale CMC Land Case No. 60 of 2020**, and copies of receipts for payments as annexures marked **AON-(1), (2), (3),** **4(a), (b), (c), (d),** and **(e)** respectively. 7. The application is opposed by the interested party through a replying affidavit sworn by Kefa Siro Obiero on **31/3/2026**. He denies service with any court pleadings over these proceedings, or the application for boundary determination dated **18/7/2025**. The interested party says that he was never notified or informed as required by law over the alleged boundary dispute. 8. The interested party deposes that the owner of parcel No. **Kiminini/Matunda Block 4/Nyamira/13** is deceased as per annexure marked **KSO-1(a)** and **(b),** therefore, any process without the administrator of the estate is a nullity and void for all intents and purposes. 9. The interested party deposes that he is neither the administrator of the estate of his deceased father nor does he have the capacity to be sued. The interested party deposes that it is indeed true that there was a trespass case against him, which was filed and allowed, leading to an appeal that is yet to be heard. He has attached a copy of the plaint, defence, and the appeal marked **KSO-2(a), (b),** and **(3).** 10. The interested party deposes that the exparte applicant had filed an application to have the County Land Registrar and Surveyor fix the boundary, for which he filed an application for stay pending appeal, both of which were dismissed as per annexure marked **KSO-4(a), (b),** and **(c).** 11. The interested party deposes that the exparte applicant had earlier sought the service of the County Surveyor and Land Registrar to visit the suit parcel of land and establish the correct boundary, which she had alleged had been trespassed into. The interested party deposes that seeking to compel the 1st and 2nd respondents to visit the suit parcel of land when his appeal is pending is premature, made in bad faith, misplaced, misconceived, and an afterthought. 12. The interested party deposes that an ex parte applicant has also concealed material facts from the court; the application should be dismissed. 13. Though the 1st and 2nd respondents were duly served with the motion notice and appeared in court through Miss Chilaka, learned state counsel, no replying affidavit has been filed to oppose the application or written submissions by **30/3/2026** as directed by the court on **23/3/2026**. 14. The exparte applicant relies on written submissions dated **6/4/2026**. Reliance is placed on **Articles 1,3(1), 10, 23, 232,** and **47** of the Constitution, as read together with **Sections 3, 4,** and **7** of the Fair Administrative Action Act, **2015**. 15. The exparte applicant submits that under Section 19 of the Land Registration Act, the 1st respondent has a statutory duty upon an application with the assistance of the 2nd respondent to ascertain and fix a boundary defined by survey. 16. It is submitted that the 1st respondent was to file a plan containing the necessary particulars and have the boundary fixed, which in this case has failed to exercise without giving any reasons contrary to **Article 47(1)** and **(2)** of the Constitution. Reliance is placed in ***KNEC vs Republic & Others Civil Appeal No. 355 of 2014***, citing with approval ***KNEC vs Republic, Ex parte Geoffrey Githenji Njoroge & Others [1997] eKLR*** and ***Mombasa Trade Centre vs East African Institute of Certified Studies Ltd & Others vs Equity Bank Ltd [2024] KEELC 13669 [KLR]***. 17. The interested party relies on written submissions dated **28/4/2026**. It is submitted that the interested party was neither involved nor notified of the alleged proceedings before the 1st and 2nd respondents. Further, the interested party submits that he lacks the capacity to be sued herein on account of the land belonging to his deceased father. 18. The interested party submits that there is in existence a pending appeal which ought to be dealt with before any order or relief requested by the exparte applicant can issue, making the application premature. 19. What the exparte applicant seeks is for the court to intervene since the 1st and 2nd respondents have failed to discharge their statutory mandate without offering any reasons for declining to do so. 20. In ***Pevans E.A. Ltd & Another vs Chairman Betting Control and Licensing Board & Others [2013] eKLR***, the court held as follows: ***“Where the Constitution has reposed a specific function in an institution or organ of the state, the court must give those organs sufficient leeway to discharge their mandate and only accept an invitation to intervene when those bodies are demonstrably shown to have acted in contravention of the Constitution, the law.”*** 1. Judicial Review as held by ***Lord Woolf in Republic vs IRC Ex parte, Opinan International UK [1986] 1 ALL ER 328***, in the procedure, so to speak, of last resort available only if the alternative procedure does not achieve a just resolution of the applicant’s claim. 2. In ***Albert Chaurembo Mumba & 7 Others -vs- Maurice Munyao & 148 Others [2019] eKLR,*** the court said that where an Act of Parliament confers administrative power to an authority or person, there is a presumption that it will be exercised fairly. The right to fair administrative action is recognised by **Article 47** of the Constitution. The parameters set are an administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair. A pubic officer, such as the 1st and 2nd respondents are supposed to adhere to these parameters while undertaking administrative action. 3. The Fair Administrative Action Act applies to both state and non-state actors as they exercise various powers under the law. **Article 232** of the Constitution provides for the values and principles of public service to include high standards of present ethics, efficient, prompt, impartial, equitable, provisions of service, accountability for administrative action, transparency, and the provision of timely and accurate information to the public. 4. The Public Service (Values and Principles Act) further elaborates the standard of public officers to adhere to in providing services to the public. 5. In ***Gakenyi vs County Government of Nakuru & Others Petition No E048 of 2024 [2026] KESC 72 [KLR] (30th January 2026) (Judgment)***, the court emphasised that the *audi altern parten* rule, as a core principle of natural justice, requires that those affected by a decision be given prior notification and an opportunity to be heard. 6. Mandamus is a writ issued by a court commanding an inferior government official to properly fulfil their official duties or to stop an illegal act. The 1st respondent has not denied that the exparte applicant invoked its statutory powers, duties, and responsibilities under **Section 19** of the Land Registration Act on **18/7/2025**. 7. Between **18/7/2025** and the filing of these proceedings on **18/2/2026**, the 1st and 2nd respondents had not acted one way or the other, or given reasons for not acting on time or at all, despite the exparte applicant complying with all the requisite requirements as required in law. Judicial review and the right to fair administrative action have been elevated into a constitutional remedy as held in ***CCK & Others vs Royal Media Services Ltd & Others [2014] eKLR***. 8. Failure to offer reasons for non-action is, by itself, a breach of the right to fair administrative action, let alone doing nothing over six months since the lodging of the application by the exparte applicant. Even after the exparte applicant invoked the jurisdiction of this court, the 1st and 2nd respondents have not seen it fit to make a response and explain any difficulties or reasons why the exparte applicant has remained without a remedy or administrative action. 9. It is not the interested party who has the mandate to act or respond to the claim on behalf of the 1st and 2nd respondents. The interested party has no statutory role to play. All that **Section 19** of the Land Registration Act requires is for all affected parties to the boundary dispute to be notified and invited to attend the site visit. 10. The burden in law was and remains on the 1st and 2nd respondents to notify the interested party of the existence of the dispute. It therefore confirms that the 1st and 2nd respondents merely sat on the application and did nothing to the detriment of the exparte applicant. 11. Mandamus is not a matter of right. It can be granted by the court if it is the most efficacious remedy. In the circumstances obtaining, the 1st respondent is statutorily mandated to act one way or the other. The Section does not contemplate any other body to ascertain and fix boundaries. Failure to act may result in the parties taking the route of the law of the jungle. 12. The court finds the notice dated **10/3/2026** merited. The 1st respondent is directed to act on the application dated **18/7/2025** within **3 weeks** from the date hereof. costs to the exparte applicant. 13. Orders accordingly. **Judgment dated, signed,** via **Microsoft Teams/Open Court** at **Kitale** on this **10th** day of **June 2026.**  **HON. C.K. NZILI** **JUDGE, ELC KITALE.** **Judgment delivered** via **Microsoft Teams/Open Court** at **Kitale** on this **10th** day of **June 2026.** **In the presence of:** Court Assistant - Matui/Nancy Ms. Lichuma for Mr. Katama for the applicant Mr. Chebii for the interested party  **HON. G.M. GITONGA** **JUDGE, ELC KITALE.**