Republic v Land Registrar, Nyando, Nyakah and Muhoroni & 3 others; Mbeche (Suing as the administrator of the Estate of Paul Isaka Oder - Deceased) (Ex parte Applicant) (Judicial Review Miscellaneous Civil Application E001 of 2026) [2026] KEELC 5011 (KLR) (30 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT KISUMU** **JUDICIAL REVIEW MISC. CIVIL APPLICATION NO. E001 OF 2026** **IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR ORDERS** **OF CERTIORARI AND MANDAMUS** **AND** **IN THE MATTER OF THE LAND REGISTRATION ACT** **BETWEEN** **REPUBLICAPPLICANT** **VERSUS** **LAND REGISTRAR, NYANDO,** **NYAKACH AND MUHORONI1ST RESPONDENT** **COUNTY SURVEYOR, NYANDO,** **NYAKACH AND MUHORONI2ND RESPONDENT** **THE HON. ATTORNEY GENERAL3RD RESPONDENT** **SAMUEL ODOYO4TH RESPONDENT** **EX PARTE** **ISAAC ODERO MBECHE (Suing as the administrator of the** **estate of PAUL ISAKA ODERO (Deceased))EX PARTE APPLICANT** **R U L I N G** 1. Before the court is an amended *ex parte* chamber summons dated 27th January 2026, taken out under Order 53 rule 1 of the Civil Procedure Rules, 2010 and sections 1A, 1B and 3A of the Civil Procedure Act, in which the *ex parte* applicant, Isaac Odero Mbeche, suing as an administrator of the estate of Paul Isaka Odero (deceased), seeks the following orders: 2. **THAT leave be granted to the ex parte applicant to apply for an order of certiorari to bring before this court, for purposes of quashing, the decision of the Land Registrar, Nyando, Muhoroni and Nyakach contained in the report dated 13th December 2024, which decision is said to have been arrived at without inviting the owners of parcel Kisumu/Wangaya II/1996, contrary to law, thereby dispossessing the ex parte applicant and the estate of their land;** 3. **THAT leave be granted to the ex parte applicant to apply for an order of mandamus to compel the respondents to carry out a fresh boundary determination between Kisumu/Wangaya II/1996 on the one part and Kisumu/Wangaya I/4122, 4123, 4678 and 4676 on the other, in accordance with the law and with the participation of all the owners;** 4. **THAT the leave so granted do operate as a stay of the implementation of the boundary dispute decision of the Land Registrar, Nyando, Muhoroni and Nyakach dated 13th December 2024;** 5. **THAT the costs of the application be costs in the cause.** 6. The application is supported by a statutory statement, a verifying affidavit and a supporting affidavit sworn on 31st December 2025, together with a further affidavit sworn on 27th January 2026. The further affidavit was sworn for the limited purpose of correcting the name of the 4th respondent from “Samson Odoyo” to “Samuel Odoyo”, and to that extent the amendment is unobjectionable and I allow it. 7. The gravamen of the application is short. It is said that on 18th July 2024 the 1st respondent, accompanied by surveyors from the office of the 2nd respondent, conducted a boundary determination which affected, among other parcels, land parcel Kisumu/Wangaya II/1996, and that he thereafter issued a report dated 13th December 2024, all without notice to, or the participation of, the owners of that parcel. 8. Because the *ex parte* applicant additionally prayed that any leave granted do operate as a stay of the implementation of the impugned decision, the court directed that the application be served upon the respondents and canvassed *inter partes*. The respondents duly responded and I have had the benefit of their material. **The Ex Parte Applicant’s case** 1. The case advanced in the statutory statement and in the supporting affidavit may be summarised as follows. Letters dated 6th February 2018 and 21st January 2021 were written by the 1st and 2nd respondents to the owners of Kisumu/Wangaya I/4125, 4684 and 4697, through the Assistant Chief, Wangaya I Sub-location, notifying them of a boundary survey and hearing to be held on 29th March 2018 and 18th March 2021 respectively. 2. By a letter dated 1st February 2022 the Assistant County Commissioner, Miwani Division, asked the 1st respondent to resolve a boundary dispute between Wangaya I and Wangaya II, identifying the affected parcels as Wangaya I/4125, 4697, 4123 and 4684. By a letter dated 23rd June 2022 the 2nd respondent in turn asked the 1st respondent to allow the re-survey of parcels Kisumu/Wangaya II/1996, 1994, 1997, 1995, 1547, 2095, 2096 and 2094, in respect of which, it is said, nobody had complained. 3. The 1st respondent thereafter visited the parcels, held what he described as a boundary dispute hearing on 18th July 2024 and made a decision dated 13th December 2024, without inviting the *ex parte* applicant or any member of the estate of Paul Isaka Odero, and without acknowledging in the report that the owners of Kisumu/Wangaya II/1996 were unrepresented. 4. The *ex parte* applicant states that he came to learn of the decision only in November 2025, when the 4th respondent entered the farm and began harvesting sugar cane planted by his nephew, acting on the strength of the 1st respondent’s decision, which had hived off a sizeable portion of Kisumu/Wangaya II/1996. On inquiring at the lands office he was, he says, informed by the lands clerks that the owners of the parcel had never been notified or invited to the hearing although their land was affected. 5. By then, it is contended, the period within which to appeal the decision had lapsed and there is no provision for the enlargement of that time. The decision is said to be a nullity for want of jurisdiction, to offend the law and the Constitution, and to be liable to be set aside so that a proper hearing may be held with the participation of all concerned. **The Response to the Application** 1. The 1st, 2nd and 3rd respondents opposed the application through grounds of opposition dated 5th January 2026. Four points are taken. First, that the *ex parte* applicant is time-barred, having failed to exhaust the statutory appeal remedy under the Land Registration Act, which requires an appeal within thirty days of notification of a boundary determination, and that judicial review, being discretionary, cannot be used as a back-door appeal where a statutory appeal existed and was not utilised. Secondly, that no illegality, irrationality or procedural impropriety has been demonstrated, the applicant’s complaint being in truth a disagreement with the factual outcome of the survey. Thirdly, that mandamus does not issue where the statutory duty has been fully performed. Fourthly, that the application should be dismissed with costs. 2. The 4th respondent opposed the application through a replying affidavit sworn on 12th March 2026. He describes himself as the Chairman of Magare Farmers’ Co-operative Society, whose members are sugar cane farmers, and states that he attended the boundary dispute proceedings of 18th July 2024 in that capacity and as a member of the community. His depositions, in summary, are these: 3. that the registered proprietors and/or their representatives were invited through the area Assistant Chief by the letter dated 6th February 2018, annexed as “SO 1”; 4. that the boundary dispute was initiated by community members because it affected many parcels of land, and the information was escalated by the area chief and village elders to every home within the community; 5. that the registered proprietors of the affected parcels and/or their representatives were all present, as appears from the certified field attendance register from the office of the Land Registrar, annexed as “SO 2”; 6. that as at 18th July 2024 land parcel Kisumu/Wangaya II/1996 was registered in the name of one Akeyo Adel, as appears from the certificate of official search annexed as “SO 3”, and that neither the ex parte applicant nor his father Paul Isaka Odero was then the registered owner of that parcel; 7. that all parties were furnished with the survey report dated 13th December 2024 through the area Assistant Chief, the report being annexed as “SO 4”; 8. that the ex parte applicant and one Perez Aketch Odero instituted Tamu SPM’s Court ELC Case No. E003 of 2025 on 28th January 2025 against Patrick Omondi Gogo, William Oluoch and the 4th respondent, and that the defence, replying affidavits, witness statements and list of documents filed in that suit annexed the very survey report now impugned, and were duly served upon the ex parte applicant through his advocate; 9. that the ex parte applicant was accordingly aware of the survey proceedings and of the survey report dated 13th December 2024; 10. that the application is time-barred and offends Order 53 rule 2 of the Civil Procedure Rules; that it was filed without leave and offends Order 53 rule 1; and that the applicant ought first to have exhausted the appeal mechanism provided under regulation 40(6) of the Land Registration (General) Regulations, 2017; and 11. that he is neither a registered nor an equitable owner of any of the parcels which were the subject of the boundary dispute, and has been wrongly joined. **Directions as to submissions** 1. Upon the application being canvassed before me, the court granted the parties timelines within which to file and exchange written submissions. Despite the lapse of the time so allowed, and although the parties were at liberty to seek an extension, none of the parties filed any submissions. 2. The absence of submissions does not, however, disable the court. Submissions are not evidence. They are the argument of counsel upon the pleadings and upon the evidence already on the record, and however elegant or elaborate they may be, they can neither supply evidence which is wanting nor displace evidence which is on record. That much was made plain by the Court of Appeal in **Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR, and the same principle was applied in Trust Bank Limited v Paramount Universal Bank Limited & 2 others [2009] eKLR**, where the court observed that submissions are not a substitute for evidence and cannot cure a deficiency in a party’s case. 3. It follows that the failure of the parties to file submissions is a ground neither for striking out the application nor for deferring its determination indefinitely. **Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(b) of the Constitution** require that disputes be resolved justly and without undue delay, and litigants who have moved the court are entitled to a decision. Each party must, in these circumstances, be taken to rest upon the case which it has pleaded and sworn to. I have accordingly proceeded to determine the application upon the material on record, and in doing so I have been careful to consider the case which each party might reasonably have advanced upon its own papers. **Analysis and Determination** 1. I have considered the amended chamber summons, the statutory statement, the affidavits and their annextures, the grounds of opposition and the replying affidavit. In my view only two issues arise for determination, the first of which subsumes a number of distinct questions which I shall address in turn: 2. **whether the ex parte applicant has satisfied the threshold for the grant of leave to apply for orders of certiorari and mandamus and, if so, whether that leave should operate as a stay of the implementation of the decision of the 1st respondent dated 13th December 2024; and** 3. **who should bear the costs of the application.** **(i) The threshold for the grant of leave** 1. Judicial review in this court is anchored on sections 8 and 9 of the Law Reform Act (Cap. 26), Order 53 of the Civil Procedure Rules, 2010 and the Fair Administrative Action Act, 2015. Order 53 rule 1 requires that no application for an order of certiorari or mandamus shall be made unless leave has first been granted. Leave is thus a filter. Its purpose is to sift out, at an early stage and at modest cost, applications which are frivolous, vexatious or hopeless, and to protect public bodies from having to answer claims which are bound to fail. 2. The threshold is not a high one. An applicant need only demonstrate an arguable case with a reasonable prospect of success, and one which is not frivolous. The court does not at this stage conduct a mini-trial, nor does it resolve contested questions of fact. That much is settled: see **Republic v Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR.** 3. But leave is not a formality either. The discretion to grant it is a judicial discretion. Where it appears on the face of the material placed before the court that the intended substantive application is bound to fail because it is barred by an express rule of limitation, or because a statutory remedy has not been exhausted, or because the relief sought is not available in law the court would not be exercising its discretion judicially by granting leave. To grant leave in such a case is to set in motion proceedings which can only end in dismissal, at needless expense to the parties and needless cost to the court’s time. 4. That is the more so where, as here, the applicant asks that the leave carry with it the consequence of a stay of a subsisting administrative decision. A stay at the leave stage operates against parties who have not yet been heard on the merits and freezes rights which third parties may have acted upon. The court must therefore look with some care at whether the intended application has anywhere to go. 5. Order 53 rule 2 of the Civil Procedure Rules, 2010 provides that leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceeding, or such shorter period as may be prescribed by any Act; and that where the decision in question is subject to appeal and a time is limited by law for bringing the appeal, the court may adjourn the application for leave until the appeal is determined or the time for appealing has expired. 6. Two features of the rule deserve emphasis. First, it is couched in prohibitory terms: leave *shall not* be granted unless the application is made within the six months. It is not a rule which confers on the court a discretion to be exercised one way or the other; it is a bar. Secondly, the six months runs from *the date of the decision* sought to be quashed. The rule makes no provision for time to run from the date on which the applicant came to know of the decision, and it is not open to the court to write such a provision into it. 7. The decision sought to be quashed is the report of the 1st respondent dated 13th December 2024. Six months from that date expired on 13th June 2025. The chamber summons was first taken out with a supporting affidavit sworn on 31st December 2025 and the amended chamber summons now before me is dated 27th January 2026. On any reckoning, the application for leave was made more than twelve months after the decision, and more than six months after the bar in Order 53 rule 2 had fallen. 8. The *ex parte* applicant’s answer is that he learnt of the decision only in November 2025, when cane was harvested off the suit parcel. For the reasons given in paragraph 22 above, that answer does not meet the rule as drawn. But even if I were, for argument’s sake, to treat time as running from the date of knowledge, the answer would still not avail him. 9. The 4th respondent has placed before me material showing that the *ex parte* applicant is the 2nd plaintiff in Tamu SPM’s Court ELC Case No. E003 of 2025, filed on 28th January 2025, in which the very subject matter the harvesting of cane from Kisumu/Wangaya II/1996 is in issue. In that suit the defendants filed a statement of defence dated 10th February 2025, a replying affidavit of Patrick Omondi Gogo sworn on 10th February 2025 which expressly annexed a copy of the survey report dated 13th December 2024 as “POG 8”, and a witness statement of the same deponent dated 21st February 2025 which refers in terms to the boundary survey of 18th July 2024 and to its findings. Those pleadings were, on the uncontroverted evidence, served upon the *ex parte* applicant through his advocate on record in that suit. 10. Significantly, the *ex parte* applicant filed no further affidavit in answer to the replying affidavit of the 4th respondent. The annextures, which are certified copies emanating from the office of the 1st respondent and from the record of another court, therefore stand unchallenged. A deponent who is confronted with documentary evidence which contradicts his sworn account and who elects to say nothing cannot complain if the court accepts the document. 11. It follows that even on the most generous approach available to him that is to say, treating time as running from knowledge, which the rule does not permit the *ex parte* applicant had knowledge of the impugned report no later than February 2025, and the six months would have expired in or about August 2025. The application was still made out of time. 12. I am accordingly precluded by Order 53 rule 2 from granting leave to apply for an order of certiorari. That conclusion alone disposes of the first prayer. 13. Section 19 of the Land Registration Act, 2012 empowers the Registrar, where any uncertainty or dispute arises as to the position of a boundary, to determine and indicate the position of that boundary, upon notice to the owners of the adjoining lands; and it confers upon a person aggrieved by such a determination a right of appeal to this court, to be exercised within thirty days of the determination. Regulation 40 of the Land Registration (General) Regulations, 2017 makes complementary provision. The report of 13th December 2024 is itself instructive on this point: at its recommendation 3 it states that the boundaries fixed should be adopted, respected and maintained, “with the right to appeal within 14 days from the day the exercise was carried out”. Whatever the precise period, the report on its face advertised the existence of a right of appeal. 14. Section 9(2) of the Fair Administrative Action Act, 2015 provides that the High Court or a subordinate court shall not review an administrative action or decision under the Act unless the mechanisms, including internal mechanisms for appeal or review, and all remedies available under any other written law, are first exhausted. Section 9(4) permits the court, in exceptional circumstances and on application by the applicant, to exempt a person from that obligation. 15. The principle is of long standing in our jurisprudence. In **Speaker of the National Assembly v James Njenga Karume [1992] eKLR** the Court of Appeal held that where there is a clear procedure for the redress of a particular grievance prescribed by the Constitution or by an Act of Parliament, that procedure should be strictly followed. The same principle was affirmed in **Geoffrey Muthinja & another v Samuel Muguna Henry & 1,756 others [2015] eKLR.** 16. Here the *ex parte* applicant did not appeal. He made no application under section 9(4) of the Fair Administrative Action Act for exemption, and he placed before me no exceptional circumstance beyond the bare assertion that the time to appeal had passed. That will not do. A party’s own delay cannot be the exceptional circumstance which excuses him from the duty to exhaust; if it were, the requirement of exhaustion could be defeated at will by the simple expedient of inaction. 17. Nor is the premise of the assertion sound. The *ex parte* applicant deposes that “there is no provision to enlarge time”. That is not, with respect, an accurate statement of the position; the statutory appeal would in any event lie to this very court, which is seized both of the jurisdiction to hear it and of the machinery to direct a fresh determination if one is warranted. What the *ex parte* applicant seeks by way of mandamus is precisely the relief which a successful statutory appeal could yield. Judicial review is not a substitute for an appeal which a party has allowed to go by default. 18. The second prayer seeks leave to apply for mandamus to compel a fresh boundary determination. The office of that remedy was authoritatively described in **Kenya National Examination Council v Republic Ex parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR,** where the Court of Appeal explained that mandamus compels the performance of a public duty which a public officer or body has refused or neglected to perform; that it does not lie to direct the manner in which a discretion is to be exercised; and that it is not available where the duty in question has already been discharged. 19. In the present case the 1st and 2nd respondents did act. They convened the exercise of 18th July 2024 and issued the report of 13th December 2024. Whether they acted lawfully is an altogether different question, but it is a question which can be reached only through certiorari or through the statutory appeal. So long as the determination of 13th December 2024 stands unquashed, it is a subsisting administrative act, and an order compelling a fresh determination of the same boundary would in substance displace it. Mandamus cannot be deployed to achieve indirectly what certiorari, being time-barred, cannot achieve directly. 20. There is a further discretionary consideration. The material discloses that the substance of this dispute is already before another court. In Tamu SPM’s Court ELC Case No. E003 of 2025 the *ex parte* applicant is a plaintiff; the 4th respondent is a defendant; the parcels are the same; and the impugned survey report is an exhibit relied upon by the defence. The questions of ownership, of the true position of the boundary along the River Nyando and of the lawfulness of the harvesting complained of are all live in that suit. 21. Judicial review is a discretionary remedy of last resort. Where a party has an adequate alternative remedy, and the more so where he has already invoked it and it remains pending, this court should be slow to permit a collateral attack on the same subject matter through the prerogative jurisdiction. To grant leave here, with a stay attached, would be to allow two courts to travel over the same ground at the same time, with the attendant risk of conflicting decisions. 22. Having reached the conclusions above, it is not necessary for me to determine whether the intended application would otherwise have been arguable, and I do not do so. It is nonetheless right that I record the following, lest it be thought that the *ex parte* applicant’s central complaint has been overlooked. 23. The strongest point in the *ex parte* applicant’s favour is that the notification letters in the record, being those of 6th February 2018 and 21st January 2021, were addressed to the owners of Kisumu/Wangaya I/4125, 4684 and 4697 parcels which do not appear in the determination eventually made, that determination having concerned Kisumu/Wangaya I/4122, 4123, 4678 and 4676 as against Kisumu/Wangaya II/1996. On their face, therefore, those letters do not evidence notice to the owners of Kisumu/Wangaya II/1996. 24. Set against that, however, is the certified field attendance register produced as “SO 2”, which bears the reference of the very parcels in issue, including Wangaya II/1996, and which records the names of some fifty-eight persons who attended, among them the area chief, the sub-county surveyor and the land registrar. There is also the certificate of official search produced as “SO 3”, showing that the registered proprietor of Kisumu/Wangaya II/1996 was one Akeyo Adel, registered on 23rd October 2003 a matter which, if correct, raises its own questions as to the capacity in which the *ex parte* applicant complains of a failure to invite “the owners”. None of this material was answered. 25. Whether the exercise of 18th July 2024 was preceded by adequate notice to those entitled to it is therefore a genuinely contested question of fact. It is not a question which can be resolved on an application for leave, and I resolve nothing about it. Suffice it to say that even had I been satisfied of arguability, the bars discussed in parts (ii) and (iii) above would remain, and they are decisive. 26. Two of the 4th respondent’s objections call for brief comment. At paragraph 17 of his replying affidavit he deposes that the application was filed without leave and offends Order 53 rule 1. With respect, that objection is misconceived: what is before the court is the application for leave itself, and no anterior leave was required for it. 27. At paragraph 19 he complains that he is neither a registered nor an equitable owner of any of the parcels which were the subject of the boundary dispute and has been wrongly joined. Given the outcome of this ruling the question is academic and I decline to determine it. I would observe only that he attended the boundary proceedings of 18th July 2024, is a defendant in Tamu SPM’s Court ELC Case No. E003 of 2025 and is alleged to have harvested cane from the suit parcel; his joinder was therefore not without foundation, whatever its ultimate merit. 28. The prayer that leave operate as a stay is dependent upon leave being granted. Leave having been declined, the prayer falls away and requires no separate consideration. **(ii) Costs** 1. As to costs, the ordinary rule under section 27 of the Civil Procedure Act is that costs follow the event, but the award of costs remains at all times in the discretion of the court, to be exercised judicially upon the particular circumstances of the case. Three circumstances persuade me that this is a proper case in which to depart from the ordinary rule. In the circumstances I consider it just that each party should bear its own costs of this application. **Disposition** 1. In the result, and for the reasons set out above, I find that the amended *ex parte* chamber summons dated 27th January 2026 is not merited. The following orders commend themselves to me: 2. **The amended chamber summons dated 27th January 2026 be and is hereby dismissed in its entirety.** 3. **Each party shall bear its own costs of this application.** 4. **There being nothing further arising for determination in this application, the file herein be and is hereby marked as closed.** **DELIVERED, DATED AND SIGNED AT KISUMU THIS 30TH DAY OF JULY, 2026.** **E. K. WABWOTO** **JUDGE** **In the presence of:-** **Mr. Ojura for the Ex parte Applicant.** **N/A for the 1st, 2nd and 3rd Respondents.** **N/A for the 4th Respondent.** **Court Assistant: Joanne Omondi.**