https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4878

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT KAJIADO** **ELCLJR E005 OF 2025** **IN THE MATTER OF THE LAND REGISTRATION ACT** **AND** **IN THE MATTER SURVEY ACT CAP 299** **AND** **LAND ADJUDICATION ACT CAP 284** **AND** **COUNTY GOVERNMENTS ACT, 2012** **AND** **LIMITATION OF ACTION ACT CAP 22** **AND** **FAIR ADMINISTRATIVE ACTION ACT OF 2015** **AND** **IN THE MATTER SITE VISIT SUMMONS DATED 30TH JANUARY,2025** **AND** **IN THE MATTER SECTIONS 8 AND 9 OF THE LAW REFORM ACT, CAP 26** **IN THE MATTER OF ORDER 53 OF THE CIVIL PROCEDURE RULES,2010** **IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR THE JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION** **IN THE MATTER OF APPLICATION BY** **REPUBLIC…………………………………………………….……………..…. APPLICANT** **VERSUS** **KAJIADO WEST DISTRICT LAND REGISTRAR …………….….…..1ST RESPONDENT** **KAJIADO WEST DISTRICT LAND SURVEYOR .…………..………..2ND RESPONDENT** **THE ATTORNEY GENERAL……………………………………...……..3RD RESPONDENT** **AND** **THE CHIEF OF OLCHORO ONYORE LOCATION ………...1ST INTERESTED PARTY** **THE OFFICER IN CHARGE OF** **KISAMIS POLICE STATION……………………………………2ND INTERESTED PARTY** **COUNTY GOVERNMENT OF KAJIADO……………………...3RD INTERESTED PARTY** **ANGLICAN CHURCH OF KENYA MURERA………....…..….4TH INTERESTED PARTY** **THE CHURCH OF COMMISSIONER OF** **KENYA OF THE ANGLICAN CHURCH OF KENYA…….….5TH INTERESTED PARTY** **KAUSAU OLE KURENDE ………………………………..…….6TH INTERESTED PARTY** **SIMITIA OLE PARTAI…………………………………………….7TH INTEREST PARTY** **EX-PARTE** **MBUTHI INVESTMENTS COMPANY LIMITED ………………….…..1ST APPLICANT** **LENDEKI OLE SOKOIYUNI………………………………….…….......2ND APPLICANT** **JEREMIAH KANJAI OLE NDEKA ………………………………..…...3RD APPLICANT** **JACKSON KIAPITANY SUPEYO…………………………….....……...4TH APPLICANT** **JANE WANGARI MUGO…………………………………….…….…..5TH APPLICANT** **KIRARIA OLE KEISHUELI…………………………..………….….....…6TH APPLICANT** **JOHN TOIMASI OLE TEEKA ………………………..………..…..…..7TH APPLICANT** **KIPERPERA MULELENOT……………………………………..……....8TH APPLICANT** **JOSEPH SLAON OLE SAUNYI……………………………..………..…9TH APPLICANT** **KAI ENE SAMANDE……………………………………………..…….10TH APPLICANT** **MAITEL OLE NKORIO MPAI…………………………………….…..11TH APPLICANT** **SARAH ANITA W. KURIA……………………………..…………......12TH APPLICANT** **ALICE NJERI KURIA………………………………………………..….13TH APPLICANT** **JURIUS ITHIRU GITAU ………………………………………….…..14TH APPLICANT** **RULING** ***(In respect of the 1st, 2nd and 3rd Respondents and 1st and 2nd Interested Parties Notice of Preliminary Objection dated 25 June, 2025)*** **Introduction** 1. Following leave granted on 24 March,2025, the *Ex parte* Applicants filed their substantive Notice of Motion dated 9 April, 2025. The Application which is brought under Sections 8 and 9 of the Law Reform Act, and Order 53 Rule 3(1) of the Civil Procedure Rules seeks the following orders; 2. ***That an order of certiorari be and is hereby issued to remove into this court for purposes of being quashed, the site visit summons dated 30th January, 2025 and to quash the same.*** 3. ***That an order of prohibition be and is hereby issued restraining the Kajiado West District Land Registrar and Surveyor from conducting the boundary fixing exercise contemplated in the site visit summons dated 30 January, 2025.*** 4. ***That costs of the proceedings be borne by the Respondents and Interested parties****.* 5. The Application is premised on the grounds on the face of it; the statutory statement dated 17 February, 2025; verifying affidavits of Mbuthi Gathenji, Kanjai Ole Ndeka and Lendeki Sokoiyuni sworn on 17 February, 2025 as well as the Supplementary affidavits of Samuel Njuguna Njoroge and Bernice Wangechi sworn on 20 February, 2025 and 4th March, 2025 in that order. 6. The *Ex-Applicants* allege that the Respondents site visit slated for 27 February, 2025 based on their summons dated 30 January, 2025 purporting to fix boundaries of KAJIADO/OLCHORO-ONYORE/59; 125; 126; 179; 1502; 1503; 2014; 2027; 2073; 2227; 2992; 4661; 5115; 5275; 8324; 26541 and 26542 is a well-orchestrated scheme at the behest of the 3rd Interested Party to grab the above-mentioned parcels by reorganizing their lay out and altering their acreage. They also accuse the Respondents of attempting to conduct fresh adjudication through the back door yet the land adjudication exercise in Olchoro- Onyore area was concluded way back in 1973 and the adjudication register closed. 7. The *Ex parte* Applicants argue that any party who felt aggrieved by the land adjudication exercise had 60 days to object and appeal against the same or have their grievances addressed by the National Land Commission which dealt with historical land injustices before its mandate expired. According to the Applicants, the 3rd Interested Party is attempting to acquire their land under the pretext of an existing boundary dispute between their land and the one reserved for Murera Church because there exists no other avenue for acquiring such land. 8. The Ex Parte Applicants assert that the subject parcels of land cover a vast area of approximately 5 to 10 square kilometres, and do not border each other nor do they share boundaries being so far apart. Consequently, the *Ex parte* Applicants maintain that the Respondents' summons is tainted with irrationality, illegality and abuse of power and not all land owners who stand to be affected have been notified. 9. The 1st, 2nd and 3rd Respondents and 1st and 2nd Interested Parties have contested the jurisdiction of this court to determine the *Ex parte* Applicant's Judicial Review Application (**Application**) by raising a Notice of Preliminary Objection dated 25 June, 2025. Through the objection, they argue that; 10. ***The suit is contrary to the provisions of Section 18 and 19 of the Land Registration Act Cap 300 Laws of Kenya.*** 11. ***The instant Judicial Review proceedings is as a result of the boundary dispute instituted by Murera Church, the allottees of parcel No. KAJIADO/ OLCHORO ONYORE/126. The parcel of land is public land registered in the names of Olkejuado County Council but reserved for Murera Church.*** 12. ***The court has no jurisdiction to entertain this suit, since the matter concerns a boundary dispute.*** 13. ***The suit is grossly incompetent, misconceived and an abuse of the court process***. **Courts directions** 1. The court’s directions were that the preliminary objection be dispensed with by way of written submissions. The court has had occasion to read and consider the rival submissions filed by the parties in writing this ruling. **Issues for determination** 1. The sole issue for determination is whether the Preliminary Objection by the Respondents is merited. **Analysis and determination** 1. The Ex-parte Applicants in these Judicial Review proceedings essentially seek to prohibit the Land Registrar, Kajiado west from conducting the boundary fixing exercise touching on their parcels of land amongst others which as they state, cover a vast area of land spanning over approximately between 5 to 10 square kilometers and do not border each other. They view the intended exercise as a gimmick to carry out a fresh adjudication process through the backdoor. 2. Indeed the ex parte Applicants assert that the purported exercise is a well-orchestrated scheme by the Respondents at the behest of the 3rd Interested Party to grab their parcels of land by re-organizing the lay out of the said parcels and altering their acreage yet the land adjudication exercise in Olchoro-onyore area was completed in the year 1973 and the adjudication register closed. 3. The Ex Parte Applicants further allege that the County Government of Kajiado is now looking to acquire land from them under the pretext that there is a boundary dispute between the land reserved for Murera Church and the Applicants. 4. It is the Ex Parte Applicants case is that some owners/beneficiaries of resultant subdivisions of the affected parcels have not even been included in the summons by the Land Registrar and the general population in the subject area is not aware of the purpose of the intended site visit. They argue that the Land Registrar’s summons are tainted with irrationality, abuse of office and illegality as more elaborated in paragraphs 23, 24 & 25 of the statutory statement dated 17th February 2025. 5. Judicial review is traditionally concerned with the manner in which a decision is made rather than its merits or otherwise. As was held in the case of ***Republic -vs- Attorney General & 4 others; ex parte Diamond Hashim Lalji (2014) eKLR***; ***“Judicial review applications do not deal with the merits of the case but only with the process. In other words judicial review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decisions 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…..”*** 1. The broader spectrum for the exercise of judicial review was discussed in the Ugandan case of ***Pastoli -vs- Kabale District Local Government Council & others (2008) 2EA 300*** where the court stated as follows: ***“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.*** ***Illegality is when the decision making authority commits an error of law in the process of making the decision or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires or contrary to the provisions of law or its principles are instances of illegality.*** ***Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards.*** ***Procedural impropriety is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non-observance of the rules of natural justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute and legislative instrument by which such authority exercises jurisdiction to make a decision.”*** 1. The Fair Administrative Action (FAA) Act has expanded the scope of judicial review in Kenya. In addition to the above grounds cited in the Pastoli case, the Act under section 7 thereof lists diverse grounds upon which an administrative action may be reviewed including but not limited to bias, ulterior motives, bad faith, abuse of discretion, unreasonableness, disproportionality, violation of legitimate expectations and unreasonable delay. 2. The Court of Appeal in ***Suchan Investment limited –vs- Ministry of National Heritage and 3 others (2016) eKLR***, explained the import of Section 7(2) of the FAA Act stating that; ***“Traditionally, judicial review is not concerned with the merits of the case. However, section 7(2) of the FAA provides proportionality as a ground for judicial review….. The test of proportionality leads to “greater intensity of review” than the traditional grounds. What this means is that the consideration of the substantive merits of a decision play a much greater role, ………. in our view, consideration of proportionality is an indication of the shift towards merits consideration in statutory judicial review applications.”*** 1. In ***Judicial Service Commission vs. Mbalu Mutava & Another (2015) eKLR***, the Court of Appeal held that:- ***“Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers, state organs and other administrative bodies are now subjected by article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.”*** 1. The Ex Parte Applicants have raised the grounds of illegality irrationality and abuse of power against the intended action by the Land Registrar. The Ex Parte Applicants do not seek to challenge the decision of the Land Registrar, since none has been made yet; neither do they seek to contest his mandate under section 18 & 19 of the Land Registration Act. They are only challenging the process employed by the Land Registrar in his bid to exercise the statutory mandate under section 18 & 19 of the Land Registration Act which they allege to be tainted by illegalities, irrationalities and procedural improprieties. 2. It cannot therefore be legally sound to say that they aggrieved Ex Parte Applicants have no right to invoke judicial review proceedings in such a case or that this court has no jurisdiction to entertain such proceedings. 3. Consequently I dismiss the preliminary objection by the Respondents and the 1st to 4th interested parties with costs and direct that the substantive judicial review application proceeds to hearing on its merits. It is so ordered. **Dated, Signed and Delivered at Kajiado Virtually this 24th Day of July 2026.** **M.D. MWANGI** **JUDGE** **In the virtual presence of:** Mr. Kuria h/b for Mr. Taliti for the 6th and 7th Interested Parties Ms. Nini for Mr. Taliti for the 4th and 5th Interested Parties N/A by the Ex Parte Applicants and the Respondents Court Assistant: Alex **M.D. MWANGI** **JUDGE**