https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4718

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MAKUENI** **ELCLJR NO. E002 OF 2023** ***IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION*** ***-AND-*** ***IN THE MATTER OF SECTIONS 8 AND 9 OF THE LAW REFORM ACT CAP 26 LAWS OF KENYA*** ***-AND-*** ***IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT NO. 4 OF 2015*** ***-AND-*** ***IN THE MATTER OF A DECISION OF AN APPEAL TO THE MINISTER CASE NO. 91 OF 2019 DELIVERED BY THE DEPUTY COUNTY COMMISSIONER - KILUNGU ON 30TH MAY, 2023 OVER LAND PARCEL NO. 731 & 886 WAUTU ADJUDICATION SECTION*** ***-BETWEEN-*** **REPUBLIC ………………………………………………………....APPLICANT** **-VERSUS-** **DEPUTY COUNTY COMMISIONER - KILUNGU …........1ST RESPONDENT** **THE DIRECTOR LAND ADJUDICATION** **& SETTLEMENT …………….……………………………..2ND RESPONDENT** **THE HON. ATTORNEY GENERAL …………………...…3RD RESPONDENT** **-AND-** **VERONICA NDUKU MUSAU ……………………..1ST INTERESTED PARTY** **MARRIETA W. WAMBUA ………………………..2ND INTERESTED PARTY** **VERONICA NDUKU MUSAU ……………………3RD INTERESTED PARTY** **-AND-** **PATRICK MBII YULU ……………………………EX-PARTE APPLICANT** **JUDGMENT** 1. The Ex-parte Applicant filed an amended Notice of Motion dated 29th September, 2025 under the provisions of Sections 8 and 9 of the Law Reform Act and Order 53 Rules 1 and 2 of the Civil Procedure Rules, 2010. The Ex-parte Applicant seeks issuance of the following orders against the Respondents: - 2. **THAT an Order of Certiorari do issue to remove into this Honourable Court and quash the decision of the Deputy County Commissioner – Makueni County dated 30th May, 2023 over Land Parcel No. 731 & 886 Wautu Adjudication Section.** 3. **THAT an Order of Prohibition do issue directed to the 2nd Respondent from effecting and/or implementing the decision of the 1st Respondent in an Appeal to the Minister Case No. 91 of 2013 dated 30th May, 2023 over Land Parcel No. 731 & 886 Wautu Adjudication Section.** 4. **THAT this Honourable Court be pleased to issue an order of mandamus compelling the 2nd Respondent to immediately delete the existing name as recorded in respect of Plot No. 886 and enter the name of the Ex-parte Applicant upon the adjudication register.** 5. **Costs of this suit and incidentals to the application be provided for.** 6. **Such further and other reliefs that this Honourable Court may deem just and expedient to grant.** 7. The application is supported by the statutory statement and verifying affidavit of Patrick Mbii Yulu sworn on 29th September, 2025. The deponent averred that he was the Appellant in Appeal to the Minister Case No. 91 of 2013 in respect of Parcel No. 731 and 886 Wautu Adjudication Section within Kilungu Sub-county which was decided vide the ruling delivered on 30th May, 2023. He further averred that the decision of the 1st Respondent was anchored on a clan meeting held in the year 1998. That the said decision was absent of any sound reasoning. 8. The Ex-parte Applicant contended that the 1st Respondent overlooked the grounds of appeal that had been raised and also failed to appreciate the laid down procedure. It was further contended that the 1st Respondent did not consider the proceedings in the land adjudication committee and the evidence produced by the Ex-parte Applicant. That the 1st Respondent did not give reasons as to why he agreed with the clan meeting of 1998 while also ignoring the fact that the reason the Ex-parte Applicant had appealed was because he was not accorded a hearing before the clan. 9. Concluding his deposition, the Ex-parte Applicant stated that the 1st Respondent was unreasonable and that he had relied on a biased decision by the clan. He contended that this was a breach of the rules of natural justice. 10. The application was opposed by the Respondents vide the grounds of opposition dated 25th March, 2025. It was contended that the threshold for granting the orders sought had not been met and that the application is devoid of merit. They urged the court to dismiss the application with costs. 11. The Interested Parties did not file any replies to the application. 12. The application was disposed of by way of written submissions. In the Ex-parte Applicant’s submissions dated 3rd February, 2026 Counsel contended that the 1st Respondent overlooked the fact that one of the reasons the Ex-parte Applicant lodged an appeal to the Minister was because he was never heard by the clan over the alleged meeting of 1998. It was further contended that the 1st Respondent did not consider proceedings in the land adjudication committee; evidence that the Ex-parte Applicant purchased Parcel No. 886 Wautu Adjudication Section from his uncle in the years 1992 and 1996 while being in occupation long before then. 13. Counsel asserted that the 1st Respondent went on to take irrelevant factors into consideration in making his decision by pronouncing himself on a clan decision that was never formally presented to him. Counsel submitted that the Ex-parte Applicant was denied a fair hearing. It was further submitted that the Ex-parte Applicant had satisfied the requirements that warrant grant of the orders sought in the application. 14. In the Respondents’ submissions dated 6th March, 2026, State Counsel submitted that the Ex-parte Applicant had failed to demonstrate illegality, irrationality, procedural impropriety or unfairness on the part of the 1st Respondent in the process of decision-making. It was further submitted that all the parties were given an opportunity to present their cases, call witnesses and cross-examine them before a decision was made. State Counsel was of the view that the proceedings and the decision-making process were fair, objective and procedural. 15. The sole issue for determination is whether the Ex-parte Applicant has sufficiently demonstrated that judicial review orders of certiorari, prohibition and mandamus ought to issue against the Respondents. 16. The main contention by the Ex-parte Applicant is he was not granted a fair hearing and that the 1st Respondent ignored relevant evidence in support of the Ex-parte Applicant’s case. It was further contended that in making her decision, the 1st Respondent failed to consider the Ex-parte Applicant’s evidence that he was not allowed to speak during the clan meeting held in 1998 without regard to his interest. 17. The question that comes to mind is what entails a fair hearing. **Black’s Law Dictionary 9th Edition page 789** defines a fair hearing as follows: - ***“A judicial or administrative hearing conducted in accordance with due process.”*** 1. The court in the case of **Richard Bwogo Birir v Narok County Government & 2 others [2014] eKLR**, adopted the following interpretation for what entails due process: - ***“Due process of law or simply, “due process” entails according the concerned person proceedings in which rules and principles for the protection and enforcement of private rights are upheld by the decision maker or relevant authority. At the core of due process is according the concerned person a reasonable notice with sufficient particulars to prepare for a fair hearing, the second crucial element of due process (see definition and explanation in Black’s Law Dictionary, 9th Edition). Thus the court holds that due process will not be said to exist in absence of a reasonable notice with sufficient particulars to prepare for a fair hearing.”*** 1. In the decision of the 1st Respondent dated 30th May, 2023, it is evident that the Ex-parte Applicant was present for the hearing of his Appeal Case No. 91 of 2013. The proceedings also show that both the Appellant and the Respondents were equally granted the opportunity to cross-examine each other and their respective witnesses. 2. Contrary to the Ex-parte Applicant’s allegations, it is plainly clear that the 1st Respondent took into account relevant considerations particularly the clan proceedings of 1998 which were alluded to by both the Appellant and the Respondent in their oral evidence. In her findings, the 1st Respondent noted that the Ex-parte Applicant did not petition his interest in Plot No. 886 to the clan elders if indeed he had purchased the land. 3. The crux of the Ex-parte Applicant’s case being that he was not accorded a hearing in the clan meeting of 1998 is therefore spurious. Noting the foregoing, it is clear that due process was accorded to the Ex-parte Applicant and the Interested Parties in the proceedings before the 1st Respondent and hence a fair hearing was achieved. 4. Another aspect of the Ex-parte Applicant’s challenge against the 1st Respondent’s decision is that she failed to appreciate the laid down procedure and overlooked the grounds of appeal raised in the proceedings before her. 5. In the case of **SIMON GAKUO -VS- KENYATTA UNIVERSITY AND 2 OTHERS MISC. CIVIL APPLICATION NO. 34 OF 2009 (UR),** the court said:- ***“The audi alteram partem rule should not be interpreted to mean a full adversarial hearing or anything close to it as per the courtroom situations and as per Section 77 of the Constitution. Interpreting the demands of natural justice as requiring an adversarial hearing or anything similar is a serious misdirection in law. There are no rigid or universal rules as to what is needed in order to be procedurally fair. What is needed is what the court considers sufficient in the context of each situation with its own unique facts with the needs of good administration in view. I urge practitioners of law not to rigidly import the hearing requirements in court room situation etc.” (See also Odunga J. in PERIS WAMBOGO NYAGA V. KENYATTA UNIVERSITY [2014] eKLR)”*** 1. On whether the 1st Respondent acted ultra vires, the Court in **Okoiti & 3 others v Anne Waiguru, the Cabinet Secretary, Devolution and Planning & 5 others [2021] KEELRC 2306 (KLR)** had the occasion to express itself on what amounts to an ultra vires act. The three-judge bench stated as follows: - ***“An act is ultra vires when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles renders the decision made laced with illegality. See Republic v Secretary of the Firearms Licensing Board & 2 others ex-parte: Senator Johnson Muthama [2018] eKLR. In the case of Pastoli v Kabale District Local Government Council & others, (2008) 2 EA 300 the court held that;*** ***“In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety.”*** 1. It is not in doubt that the 1st Respondent had the jurisdiction to hear and determine the Appeal Case No. 91 of 2013 in accordance with Section 29 of the Land Adjudication Act. That being said, it is observable from a perusal of the impugned decision that the Ex-parte Applicant was duly accorded the opportunity to prove his case in the proceedings. The 1st Respondent therefore acted within the confines of the law by following due process. 2. In **Municipal Council of Mombasa v Republic & another [2002] eKLR**, the Court held as follows: - ***“Judicial review is concerned with the decision-making process, not with merits of the decision itself... The court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who made the decision have the power, i.e. the jurisdiction to make it? Were the persons affected by the decision heard before it was made? In making the decision, did the decision-maker take into account relevant matters or did he take into account irrelevant matters? These are the kind of questions a court hearing a matter by way of judicial review is concerned with, and such court is not entitled to act as a court of appeal over the decider; acting as an appeal court over the decider 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 – and that, as we have said, is not the province of judicial review.”*** 1. After a scrutiny of the 1st Respondent’s decision, there is no proof of procedural impropriety in the proceedings or that the 1st Respondent ignored relevant considerations material to a fair determination of the case. The instant application constitutes an appeal on the merits of the 1st Respondent’s decision and these are not the proper proceedings for such a challenge. 2. In the end, the application is devoid of merit. It is dismissed with costs. **...............................................** **HON. E. O. OBAGA, FCIArb** **JUDGE** **JUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 23RD DAY OF JULY, 2026.** **IN THE PRESENCE OF:** Ms. Kinuthia for Exparte Applicant. Court assistants – Kilonzo & Musyoki