https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4936

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT CHUKA** **ELC JUDICIAL REVIEW CASE NO. E002 OF 2025** **REPUBLIC...*.*....................................*.......................*APPLICANT** **=VERSUS=** **THE DEPUTY COUNTY COMMISSIONER,** **CHUKA SUB-COUNTY..................................1ST RESPONDENT** **THE CABINET SECRETARY, MINISTRY** **OF LANDS, PHYSICAL PLANNING** **AND HOUSING .............................................2ND RESPONDENT** **THE HON. ATTORNEY GENERAL..................3RD RESPONDENT** **PATRICK KITHAKA BORICI..........................4TH RESPONDENT** **=AND=** **CHARLES NYAGA MUTUA.......................EX-PARTE APPLICANT** **JUDGMENT** **Introduction** 1. Vide an electronic order issued on 16/9/2025, this Court [Eboso J] granted the ex-parte applicant leave to bring a judicial review motion against the decision of the Minister dated 30/7/2025 in Land Appeal No 158 of 2019. The ex-parte applicant subsequently brought a notice of motion dated 29/9/2025, seeking an order of certiorari quashing the said decision. He also sought an order of prohibition barring the Land Registrar against implementing the impugned decision. The notice of motion is the subject of this Judgment. **Ex-parte Applicant’s Case** 1. The case of the ex-parte applicant is contained in the notice of motion dated 29/9/2025; the statement of facts dated 29/9/2025; the verifying affidavit dated 29/9/2025; and the written submissions dated 19/11/2025, filed by ***M/s Njeru Ithiga & Co Advocates***. His case is that he is the legitimate owner of land parcel number **Kamwimbi “A”/470**, located within **Kamwimbi “A” Adjudication Section**. The said land was adjudicated in favour of his late father, **Mutua Ngatiari.** Aggrieved by the adjudication award, the interested party’s late father [*the late Borici Kiriru*] lodged Land Appeal No 158 of 2019 to the Minister. The appeal was heard by the Minister’s delegatee [*the Deputy County Commissioner for Chuka North Sub-County*] and was disposed in favour of the late Borici Kiriru through a decision dated 30/7/2025. The Minister’s delegatee failed to give reasons for the decision. 2. The ex-parte applicant contends that the impugned decision is irrational and unconstitutional because it does not bear reasons and it is against the weight of the evidence that was adduced during the hearing of the appeal to the Minister. 3. Citing **Order 21 rule 4** of the **Civil Procedure Rules**, the ex-parte applicant argues that the Minister’s delegatee should have rendered a well-reasoned judgment as required under the above framework. He urges the court to grant the orders sought in the judicial review motion. **Respondents’ Case** 1. The respondents opposed the motion through a replying affidavit sworn on 5/12/2025 by **Angela N Wanyama** and written submissions filed by ***Ms* E. Kendi,** a Senior Litigation Counsel in the Office of the Attorney General. The case of the respondents is that the 1st respondent was the 2nd respondent’s delegatee and heard **Land Appeal No 158 of 2019** on behalf of the 2nd respondent. The 1st respondent adhered to the rules of natural justice in the said appeal, which related to the suit land. The reason for the 1st respondent’s decision were given in the impugned award. The award was based on evidence. **Interested Party’s Case** 1. The interested party opposed the motion through a replying affidavit dated 7/11/2025 and written statements dated 4/12/2025, filed by ***M/s K.K Mawira Advocate***. The case of the interested party is that the suit land was initially adjudicated in favour of his late father, Borici Kiriru. The ex-part applicant’s father lodged a claim before the Land Adjudication Committee and the ownership dispute culminated in an appeal to the Minister. 2. The interested partyargues that the Minister’s award contains clear and cogent reasons for the decision reached, including a detailed analysis of the evidence and an identification of the respective parcels. He adds that the two parties to the appeal were fully heard by the Minister’s delegatee. He urges the court to dismiss the motion. 3. The court has considered the motion, the response to the motion and the submissions tendered on the motion. The single issue to be determined in this Judgment is whether the decision dated 30/7/2025 by the Minister’s delegatee, awarding the interested party land parcel number Kamwimbi “A”/470, is irrational and unconstitutional and therefore liable to be quashed. 4. An irrational decision is one that is not guided by reason or by a fair consideration of the law and the facts. Put differently, an irrational decision is one that is arbitrary. 5. In ***Peter Odoyo Ogada & 9 others v Independent Electoral and Boundaries Commission of Kenya & 14 others [2013] eKLR***, the Court of Appeal outlined the relevant criteria on application of the test of rationality as follows:- ***“...the test of rationality ensures that any legislation or official act is confined within the purpose set by the law. It is the insistence that decisions must be rational that limits arbitrariness....”*** 1. In ***Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) [1997] KECA 58 (KLR),*** the Court of Appeal outlined the following as the circumstances under which an order of certiorari would issue: ***“Only an order of certiorari can quash a decision already made and an order of certiorari will issue if the decision is made without or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons”.*** 1. The impugned award of the Minister was exhibited by both the ex-parte applicant and the interested party. It contains: (i) the appeal case number; (ii) the land that was the subject matter of the appeal; (iii) the parties to the appeal; (iv) the witnesses who testified; (v) the respective evidence-in-chief of the parties to the appeal and the evidence of their witnesses; (vi) evidence tendered in cross-examination; (vii) the findings of the Minister; and (viii) the decision disposing the appeal. 2. The reasons for the decision of the Minister’s delegatee are clearly discernible from the part of the Award captioned *“FINDING”* in which the Minister’s delegatee observed that the ex-parte applicant owned an abutting parcel [*number 469*] and there was no evidence tendered to suggest that the ex-parte applicant bought the suit land. The Minister’s delegatee further noted that the suit land (parcel number 470) was an original demarcation. The Minister further observed that despite the ex-parte applicant being warned to desist from developing the suit land during the pendency of the appeal to the Minister, he ignored the warnings. All the above findings were based on the evidence that was before the Minister’s delegatee and formed part of the formal award that was rendered by the Minister through her delegatee. 3. The ex-parte applicant’s counsel relied on **Order 21 rule 4** of the **Civil Procedure Rules** and argued that the Minister’s award ought to have complied with the requirements of **Order 21 rule 4** of the **Civil Procedure Rules**. The said framework relates to judgments by courts of law and provides as follows: ***“Judgments in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.”*** 1. The above framework governs judgments by courts of law which are presided over by trained lawyers. It does not govern quasi-judicial decisions by quasi-judicial bodies. That is not to say that the Minister was exempted from basing her decision on the facts placed before her. 2. In the present motion, the evidence that was placed before the Minister was captured as part of the award. The findings of the Minister were also captured as part of the award. So were the disposal orders. The award aligns with the evidence that was tendered in the appeal. There is therefore no proper reason for alleging that the award was irrational. 3. The result is that the allegation of irrationality in the impugned award of the Minister has not been proved. Similarly, the allegation of unconstitutionality in the said decision has not been proved. Consequently, it is the finding of this court that the ex-parte applicant has failed to prove that the impugned decision was irrational and/or unconstitutional. 4. On costs, the general principle is that costs follow the event [**See Section 27 of the Civil Procedure Act** and the Supreme Court of Kenya decision in ***Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR***. There are no proper grounds to warrant a departure from the general principle. The ex-parte applicant will, in the circumstances, bear costs of the suit. **Disposal Orders** 1. In the end, the notice of motion dated 29/9/2025 is rejected and dismissed for lack of merit. The ex-parte applicant shall bear costs of the suit. **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 20TH DAY** **OF JULY, 2026** **B M EBOSO [MR]** **ELC JUDGE**