https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5071

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT HOMA BAY** **ELCLJR NO. E005 OF 2026** REPUBLIC..........................................................................APPLICANT **VERSUS** COUNTY LAND REGISTRAR, RACHUONYO..........................................................1ST RESPONDENT THE HON. ATTORNEY GENERAL...........................2ND RESPONDENT **AND** ISIAH OTIENO OMOLLO................................1ST INTERESTED PARTY DAVID OMOMO MADO.................................2ND INTERESTED PARTY RHODA AKINYI OBADHO.............................3RD INTERESTED PARTY **JUDGEMENT** **INTRODUCTION** 1. Before this court is the Ex-parte Applicants' Notice of Motion dated 18th September 2025 brought pursuant to leave granted on 12th Sepstember 2025 in ELC Miscellaneous Application No. E046 of 2025. The Applicants seek judicial review orders of prohibition and mandamus against the Land Registrar, Rachuonyo. 2. Specifically, the Applicants seek the following orders: 3. An order of prohibition restraining the 1st Respondent, his agents or persons acting under his authority from carrying out registration, subdivision or any dealings in Land Parcel No. West Kasipul/Konyango-Kokal/146 pending further orders of this Court. 4. An order of mandamus compelling the Land Registrar to recall and revoke all title deeds issued in respect of parcels created following the subdivision of Land Parcel No. West Kasipul/Konyango-Kokal/146 prior to the order issued on 17th April 2025 in Oyugis PM Succession Cause No. 115 of 2019. 5. An order of mandamus compelling the Land Registrar to register titles in accordance with the orders issued by the succession court on 17th April 2025. 6. Costs of the application. **EX-PARTE APPLICANTS' CASE** 1. The application is supported by the statutory statement, verifying affidavit and annexures filed by the Ex-parte Applicants. 2. The Applicants contend that Land Parcel No. West Kasipul/Konyango-Kokal/146 measuring approximately 15 hectares was first registered on 9th April 1975 in the names of Agola Mado, Rono Mado, Ombuor Mado, Omolo Mado and Omolo Agira as proprietors in common in equal undivided shares. 3. It is their case that over the years, the families of the original proprietors settled on different portions of the land and approximately forty-three homesteads presently occupy the property. 4. Following the deaths of Agola Mado, Rono Mado and Ombuor Mado, succession proceedings were commenced in Oyugis PM Succession Causes Nos. 115, 116 and 117 of 2019. According to the Applicants, each succession court erroneously distributed the entire parcel to the respective deceased's estate. 5. The Applicants aver that they successfully challenged those grants through an application dated 22nd March 2023 which resulted in a ruling delivered on 22nd February 2024 setting aside the confirmed grants. 6. They further contend that despite the subsequent setting aside of the grants, the register had already been closed upon subdivision and numerous titles issued. They maintain that such actions were undertaken without a lawful order of rectification issued under Section 80 of the Land Registration Act. 7. According to the Applicants, the succession court subsequently ordered on 17th April 2025 that the estates be distributed in accordance with a Survey Report and Sketch Map prepared by Prime Line Surveys dated 16th October 2020 and directed rectification of the register. 8. The Applicants therefore argue that the Land Registrar cannot rectify the register on his own motion and that this Court should compel him to revoke all titles arising from the impugned subdivision and register fresh titles in accordance with the succession court orders **ANALYSIS AND DETERMINATION** 1. I have carefully considered the Notice of Motion dated 18th September 2025, the statutory statement, the verifying affidavit together with the annexures thereto. I have also considered the applicable law. In my view, the following issues arise for determination: 2. Whether the Ex-parte Applicants have met the threshold for the grant of an order of prohibition. 3. Whether the Ex-parte Applicants have established a case for the grant of orders of mandamus. 4. Who should bear the costs of the application. **(a) Whether the order of prohibition should issue** 1. It is now settled that judicial review is concerned with the legality of the decision-making process and not with the merits of the impugned decision. The court does not sit on appeal over the decision of a public body but interrogates whether the decision-maker acted within the confines of the law, observed the rules of natural justice and exercised the powers donated by statute. 2. In **Municipal Council of Mombasa v Republic & Umoja Consultants Ltd, Civil Appeal No. 185 of 2001 [2002] eKLR**, the Court of Appeal stated that judicial review is concerned with the decision-making process and not with the merits of the decision itself. The Court held that the function of judicial review is to determine whether the decision-maker had jurisdiction, whether the persons affected were heard and whether the decision-maker considered relevant matters while excluding irrelevant considerations. The Court specifically stated; ***“Judicial Review is concerned with the decision making process, not with the merits of the decision itself; the Court would concern itself with such issues as to whether the decision maker had the jurisdiction, whether the persons elected by the decision were heard before it was made and whether in making the decision, the decision maker took into account relevant matters or did take into account irrelevant matters. The Court should not act as a Court of Appeal over the decider, which would involve going into the merits of the decision itself–such as whether there was or there was not sufficient evidence to support the decision.*** 1. The Ex-parte Applicants seek an order prohibiting the Land Registrar from registering, subdividing or otherwise dealing with Land Parcel No. West Kasipul/Konyango-Kokal/146. 2. The evidence placed before this Court, however, demonstrates that the very acts sought to be prohibited had already taken place before these proceedings were instituted. The Green Card annexed to the application shows that the original register was closed upon partition on **7th June 2023** pursuant to the succession proceedings in Oyugis PM Succession Causes Nos. 115, 116 and 117 of 2019. Subsequent entries were thereafter made in respect of the resultant parcels. 3. An order of prohibition is a prospective remedy. It cannot undo that which has already been done. The Court of Appeal authoritatively settled this principle in **Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 Others, Civil Appeal No. 266 of 1996 [1997] eKLR**, where it held: **“That now bring us to the question we started with, namely the efficacy and scope of mandamus, prohibition and certiorari. These remedies are only available against public bodies such as the council in this case. What does an Order of Prohibition do and when will it issue? It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules or natural justice. It does not. However, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings – See Halsbury’s Law of England, 4th Edition vol.1 at Pg.37 paragraph 128.”** Proceeds to state; “**Prohibition looks to the future so that if a tribunal were to announce in advance that it would consider itself not bound by the rules of natural justice, prohibition would lie against it, but prohibition cannot quash a decision which has already been made.”** 1. From the foregoing cases, the applicable law in cases of Judicial Review have already been established and the Court will now consider the above applicable law and then juxtapose it with the available facts to determine whether the Exparte Applicant is deserving of the orders sought. 2. Consequently, since the subdivision complained of had already been completed and the register closed long before the filing of these proceedings, there is no future administrative action capable of being prohibited. The remedy sought has therefore been overtaken by events. 3. Accordingly, I find that the prayer for an order of prohibition is unavailable in the circumstances of this case. **(b) Whether orders of mandamus should issue** 1. The Applicants further seek orders compelling the Land Registrar to revoke all titles arising from the subdivision of the original parcel and thereafter register fresh titles in accordance with the ruling delivered on 17th April 2025 in Succession Cause No. 115 of 2019. 2. The law governing the remedy of mandamus is equally settled. In **Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 Others [1997] eKLR**, the Court of Appeal explained that: **"The order of mandamus is of a most extensive remedial nature and is in form a command... requiring the person to whom it is directed to do some particular thing which appertains to his office and is in the nature of a public duty."** The Court further emphasized that: **"The order must command no more than the party against whom the application is made is legally bound to perform."** 1. Thus, for an order of mandamus to issue, the applicant must establish the existence of a clear statutory duty imposed upon a public officer, demonstrate that the duty has not been performed and show that the public officer has unlawfully failed, refused or neglected to discharge that duty. 2. The Applicants argue that the Land Registrar unlawfully closed the register and issued titles without an order of rectification under Section 80 of the Land Registration Act. They therefore invite this Court to compel the Registrar to revoke all the titles issued and register fresh titles pursuant to the ruling delivered by the succession court on 17th April 2025. 3. In my considered view, the reliefs sought extend far beyond the scope of judicial review. What the Applicants seek is, in substance, the cancellation of existing titles and rectification of the land register. Such relief directly affects proprietary rights already vested in registered proprietors. 4. Section 80 of the Land Registration Act empowers the Court to order rectification of the register where registration has been obtained by fraud or mistake. The exercise of that jurisdiction necessarily requires the participation of all persons whose proprietary interests stand to be affected. 5. Cancellation of titles and rectification of the register are substantive remedies that may only be undertaken by a competent court after hearing all affected parties. The powers of the court to cancel a certificate of title are underpinned by the provisions of **section 80 of the Land Registration Act, 2012**. The provisions under reference stipulate thus: **80. Rectification by order of Court (1) Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake. (2) The register shall not be rectified to affect the title of a proprietor, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default.** 1. Equally, Article 50(1) of the [*Constitution*](https://kenyalaw.org/akn/ke/judgment/kebprt/2025/409/aknkeact2010constitution) guarantees the right to a fair hearing and the Court of Appeal in *Mbaki & Others v Macharia & Another* [2005] 2 EA 206 emphasized that the right to be heard is fundamental and cannot be derogated from. Similarly, in *Onyango Oloo v Attorney General* [1986-1989] EA 456, it was held that denial of the right to be heard renders a decision null and void. Also, in **Pashito Holdings Limited & Another v Paul Nderitu Ndungu & 2 Others [1997] eKLR**, the Court held that parties should not be condemned unheard. Such conduct offends both the [*Constitution*](https://kenyalaw.org/akn/ke/judgment/kebprt/2025/409/aknkeact2010constitution) and principles of natural justice, warranting the setting aside of the impugned orders. 2. The Green Card annexed by the Applicants demonstrates that following the subdivision, new titles were created and issued to different proprietors. The registered owners of the new parcels are not owners known to this court. The court therefore is not sure if the registered proprietors are parties to these judicial review proceedings. Granting the orders sought would inevitably result in cancellation of their titles without affording them an opportunity to be heard. Such a course would offend the cardinal principles of natural justice. 3. In **Onyango Oloo v Attorney General [1986–1989] EA 456**, the Court of Appeal held that a decision reached in breach of the rules of natural justice cannot stand regardless of whether the same decision might ultimately have been reached. 4. Furthermore, the Green Card reveals that subsequent entries were made pursuant to letters dated 16th October 2020 bearing Reference No. PLS/KSI/CORR/TV/14/20. Curiously, those letters, upon which the Registrar appears to have acted, were not exhibited before this Court. Without those documents, this Court cannot conclusively determine whether the Registrar acted outside the law or without lawful authority. 5. The Applicants have equally failed to demonstrate that they formally demanded implementation of the succession court's orders and that the Land Registrar unlawfully refused or neglected to perform a statutory duty. In the absence of such evidence, the Court cannot conclude that the statutory threshold for the issuance of mandamus has been met. 6. More fundamentally, the dispute before this Court is no longer confined to the legality of administrative action. It concerns the implementation of succession orders, rectification of the land register and the validity of titles already issued. Those are substantive questions relating to ownership and proprietary rights which cannot be conclusively determined through judicial review proceedings. 7. The Court of Appeal in **Municipal Council of Mombasa v Republic & Umoja Consultants Ltd [2002] eKLR** cautioned that judicial review should not be converted into a forum for determining the merits of disputes or adjudicating contested rights. 8. I therefore find that the orders of mandamus sought would require this Court to determine ownership rights, cancel existing titles and effect rectification of the register matters which fall outside the province of judicial review and can only properly be determined in substantive proceedings where all affected proprietors are accorded an opportunity to be heard. 9. Consequently, I find that the Ex-parte Applicants have failed to establish the legal basis for the grant of the orders of mandamus sought. **DISPOSITION** 1. In the end, I find that the Notice of Motion dated 18th September 2025 is devoid of merit. The Applicants have failed to satisfy the legal thresholds for the grant of the judicial review remedies of prohibition and mandamus. 2. Consequently, the Notice of Motion dated 18th September 2025 is hereby dismissed. Considering that the dispute arises from implementation of succession proceedings involving members of the same extended family and concerns ancestral land, I direct that each party shall bear its own costs. **It is so ordered.** **JUDGEMENT DATED AND DELIVERED VIRTUALLY AT HOMA BAY THIS 31ST DAY OF JULY 2026.** **In the presence of;** 1. Oyala for G.S Okoth for the Appellant – Present 2. Ongoro for the Interested Party – Absent 3. Court Assistant, Ms. Bosibori JUSTICE J.W WANYONYI – JUDGE