https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4385

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MAKUENI** **ELC JUDICIAL REVIEW NO. 2 OF 2023** **IN THE MATTER OF: APPLICATION FOR JUDICIAL REIVEW BY KIMANGA ILUTA FOR ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS** **AND** **IN THE MATTER OF: THE DECISION OF KILUNGU SUBCOUNTY ADJUDICATION SECTION** **AND** **IN THE MATTER OF: PARCEL NOS. 2778 & 3282 MUSALALA ADJUDICATION SECTION** **BETWEEN** **REPUBLIC ………........................................................................APPLICANT** **-VERSUS-** **THE MINISTER FOR LANDS …………………………..1ST RESPONDENT** **DEPUTY COUNTY COMMISIONER KILUNGU ..…..2ND RESPONDENT** **DIRECTOR OF LAND ADJUDICATION AND** **SETTLEMENT ...………………………………………...3RD RESPONDENT** **SUB-COUNTY SURVEYOR (KILUNGU-MAKUENI)..4TH RESPONDENT** **ATTORNEY GENERAL ………………………….……..5TH RESPONDENT** **-AND-** **MWANGANGI ILUTA NDOLO …………………...INTERESTED PARTY** **-AND-** **KINAMA ILUTA NDOLO ……………………….EX-PARTE APPLICANT** **JUDGMENT** **Introduction** 1. By an amended notice of motion dated 21st May, 2025, the Exparte Applicant sought the following reliefs: 2. **That an order of certiorari do issue removing to this honourable court for purposes of being quashed the proceedings and ruling/judgment of the Minister of Lands Kilungu Sub County Adjudication Section (Musalala) dated 23rd May, 2023 and the same be quashed.** 3. **That an order of prohibition do issue removing to this honourable court for purposes of prohibiting the Respondents, their servants and/or agents and/or any other person from purporting to enforce and/or implement the ruling/judgment of the Minister of the Adjudication Section dated 23rd May, 2023 in land appeal case numbers 25 of 2023 and 26 of 2023.** 4. **That the costs of this application/cause be awarded to the Applicant.** 5. Though the Respondents entered appearance they neither filed a replying affidavit nor submissions. It is only the Exparte Applicant and the Interested Party who participated in the judicial review proceedings by filing written submissions. **Background** 1. The Interested Party and the Exparte Applicant are step brothers. The dispute culminating to these judicial review proceedings date back to the 1950’s. The father to the two had two wives who each had two sons. Their father was called Iluta who had married two wives. One of the wives was Mbenge, mother to the Exparte Applicant. The other was Nguku, mother to the Interested Party. 2. Iluta’s land was subdivided equally among his two wives. Before the adjudication process, the Exparte Applicant’s brother had sold a portion of his mother’s land to the Interested Party. During demarcation, the portion sold to the Interested Party was recorded in the name of the Exparte Applicant as the Interested Party as away. 3. There are two parcels which led to the filing of these proceedings. The first one is parcel No. 2778. The second one is parcel No. 3282. The first parcel comprised of eight (8) syandas. Syanda in Kamba means fertile land near water or a marsh of water. The father to the contestants gave each of his two wives four (4) each. The Exparte Applicant and his brother sold three (3) of their syandas and remained with one. 4. The second parcel is the one which the Exparte Applicant’s brother Kamuya Iluta, sold to the Interested Party. This parcel lay on the side of land given to the Exparte Applicant’s mother but his brother Kamuya Iluta had sold the same to the Interested Party. 5. As provided under the Land Adjudication Act, the Interested Party objected to the registration of parcel No. 2778 in the name of the Exparte Applicant. The committee ruled in favour of the Interested Party. The Exparte Applicant filed a claim before the Arbitration Board. The Arbitration Board gave the land to the Exparte Applicant. Finally when there was an appeal to the Minister, the Minister ruled that parcel No. 2778 belonged to the Interested Party. 6. As regards parcel 3282, the Interested Party filed a claim before the Land Adjudication Officer against the registration of the land in the name of the Exparte Applicant. The Land Adjudication Officer ruled that the parcel be subdivided equally between the Interested Party and the Exparte Applicant. On appeal to the Minister, the Minister held that parcel 3282 solely belonged to the Interested Party. This is what triggered the filing of these proceedings which fault the decision of the Minister as regard both parcel 2778 and 3282. **Exparte Applicant’s Contention** 1. The Exparte Applicant contends that the 2nd Respondent was wrong in awarding parcels 2778 and 3282 to the Interested Party in that the Minister ignored past decisions by tribunals and clan verdicts which granted the parcels to him. He contends that the action of the 2nd Respondent was meant to disinherit his mother’s house. 2. The Exparte Applicant states that his family has been staying on the suit parcels since 1950’s. He states that the 2nd Respondent had no jurisdiction to adjudicate or distribute the suit parcels. He further states that the 2nd Respondent acted in excess of his jurisdiction. He contends that the ruling and or judgment of 23rd May, 2023 in Appeal case Nos. 25 of 2023 and 26 of 2023 cannot be implemented. **Interested Party’s Contention** 1. The Interested Party opposed the Exparte Applicant’s application based on a replying affidavit sworn on 19th March, 2026. The Interested Party contends that the Exparte Applicant’s application is misconceived, frivolous and an abuse of the process of the court. He states that the dispute regarding parcels Nos. 2778 and 3282 were conducted in a fair manner after all parties were afforded opportunity to urge their respective cases and call witnesses. 2. The appeal to the Minister was in accordance with Section 29 of the Land Adjudication Act. The Exparte Applicant has not demonstrated that there was any procedural unfairness, or illegality and or irrationality in the decision. He has also not demonstrated that the 2nd Respondent acted without jurisdiction. 3. The Interested Party states that the Exparte Applicant is attacking the 2nd Respondent’s decision on merits when the law is that judicial review should be confined to the procedure followed in reaching the impugned decision. He further states that the 2nd Respondent had jurisdiction to deal with the appeal. **Parties Submissions** 1. These judicial review proceedings were disposed of by way of written submissions. The Exparte Applicant filed submissions dated 12th January, 2026. The Interested party filed his submissions dated 18th March, 2026. As I said hereinabove, the Respondents did not file any submissions. **Exparte Applicant’s Submissions** 1. The Exparte Applicant submitted that judicial review post 2010 constitution enjoins the court to look at the merits of the decision. The court should not confine itself to the procedure leading to the decision. He submits that he is entitled to a share of the two parcels in contention. 2. The Exparte Applicant also submitted that he was not given reasons as to why he did not get a share of the suit parcels. The Exparte Applicant finally submitted that the appeal to the Minister was time barred and ought not to have been entertained. **Interested Party’s Submissions** 1. The Interested Party submitted that the Exparte Applicant has not established grounds for judicial review. Reliance was placed in the case of **Pastoli –vs-** **Kabale District Local Government Council & Others (2008) 2 EA 300**. The Interested Party further relied on the case of **Republic –vs- Kenya Revenue** **Authority Exparte Yahya Towers Limited (2008) eKLR**. 2. The Interested Party further submitted that the Exparte Applicant is inviting the court to examine the merits of the decision by the Minister. He relied on the case of **Municipal Council of Mombasa –vs- Republic & Umoja Consultant** **Ltd (2002) eKLR** where it was held as follows: **“Judicial review is concerned with the decision making process not with the merits of the decision itself.”** 1. The Interested Party further relied on the case of **Republic –vs- National** **Environment Management Authority Exparte Sonat Equipment Limited** **(2011) eKLR** where the High Court held that judicial review proceedings are not concerned with whether the decision was right or wrong but whether the decision was reached in accordance with the law. 2. On the issue of jurisdiction, the Interested Party submitted that the Minister had jurisdiction to handle the appeal under Section 29 of the Land Adjudication Act. **Analysis and Determination** 1. I have carefully considered the Exparte Applicant’s application, the opposition to the same by the Interested Party as well as the submissions by the parties. The issues which emerge for determination are firstly whether the 2nd Respondent had jurisdiction to hear the two appeals before him. The second issue is whether the Exparte Applicant has established grounds upon which this court can quash the decision which was rendered on 23rd May, 2023. 2. On the first issue, there is no contention that the Interested Party filed an appeal to the Minister pursuant to the provisions of Section 29 of the Land Adjudication Act. The Minister proceeded to exercise his jurisdiction as provided under the Act in his appellate jurisdiction. The parties having been heard by the committee, Arbitration Board and Land Adjudication Officer, the Minister had jurisdiction to hear the appeal before him. There was no issue raised before the Minister that the appeal before him was time barred. This issue was raised for the first time in submissions and submissions are not evidence. They are only meant to supplement what is pleaded or add colour to the contention of the party submitting. I therefore find that the Minister had jurisdiction to hear the appeal before him. 3. On the second issue, the grounds for judicial review were ably amplified in the **pastoli case (Supra)**. Briefly put, judicial review can only be granted where the Applicant demonstrates illegality, irrationality and procedural impropriety. Illegality arises where the decision maker makes acts without jurisdiction or contrary to the law. Irrationality arises where the decision is so unreasonable that no reasonable tribunal properly directing itself could have made such a decision. Procedural impropriety arises where there is failure to observe rules of natural justice or failure to follow the prescribed procedure. 4. In the instant case, the Exparte Applicant has not demonstrated that the Minister acted without jurisdiction or contrary to the law. The appeal before the Minister was conducted in accordance with the law. There was no demonstration that there was procedural impropriety. All the parties before the Minister were given opportunity to urge their cases. They were afforded opportunity to call witnesses. There was cross examination of the parties and their witnesses. The Minister rendered a decision and gave reasons for the decision. The Minister’s decision was therefore not irrational. 5. As was held in the case of **Kenya National Examination Council –vs- Republic Exparte Geoffrey Gathanji Njoroge & Others (1997) eKLR**, an order of certiorari will only issue where a decision maker has acted without or in excess of jurisdiction. 6. There are two schools of thought as regards the scope of judicial review. One school of though states that judicial review is concerned with the decision making process, not with the merits of the decision itself as was held in the case of **Municipal Council of Mombasa (Supra).** The other school of though is that in determining whether a decision was right or wrong, a court should carry out a merit review of the case in appropriate cases as was held in the case of **Judicial Service Commission & Another –vs- Njora (Civil Appeal 486 of 2019) (2021)** **KECA 366 (KLR)** where the Court of Appeal stated as follows: **“The Superior Courts of this country have spoken with near-unanimity that the current constitutional and statutory landscape calls for a move robust application of the relief if judicial review to include in appropriate cases, a merit review of the impugned decision.”** 1. In the **Judicial Service Commission & Another –vs- Njora (Supra)** the Court of Appeal went on to state as follows: **“We emphatically find and hold that there is nothing doctrinally or jurisprudentially amiss or erroneous in a judge’s adoption of a merit review in judicial review proceedings. To the contrary, the error would lie in a failure to do so, out of a misconception that judicial review is limited to a dry or formalistic examination of the process while strenuously and artificially avoiding merit. That path only leads to intolerable superficiality.”** 1. In the case of **Kabunda & Another –vs- County Government of Mombasa,** **Clerk County Assembly of Mombasa and 7 Others (2023) KECA 1330 (KLR)** the Court of Appeal held as follows: **“24. The Supreme Court of Kenya thereafter also addressed this issue in Saisi & 7 Others –vs- Director of Public Prosecution & 2 Others (Petition 39 & 40 of 2019 (Consolidated) (2023) KESC 6 (KLR) and noted that there are two schools of thought on merit review in judicial review from decided cases, with the first holding that since the promulgation of the Constitution of 2010, judicial review has shifted from the “process only approach” to merit review in appropriate case; while the second has maintained the traditional approach that believes that judicial review proceedings involve a “process only approach” limited to the interrogation of the process and not the merits of the decision being challenged.** **25. The Supreme Court then pronounced the law on this issue to be as follows:** **In order for the court to get through this extensive examination of Section 7 of the FAAA, there must be some measure of merit analysis. that is not to say that the court must embark on merit review of all the evidence. For instance, how would a court determine whether a body exercising quasi-judicial authority acted reasonably and fairly “in the circumstances of the case”, without examining those circumstances and measuring them against what is reasonable or fair, and arriving at the conclusion that the action take was within or outside the range of reasonable responses. However, it is our considered opinion that it should be limited to the examination of uncontroverted evidence. The controverted evidence is best addressed by the person, body or authority in charge. To borrow the words of the Court of Appeal in Judicial Service Commission & Another –vs- Lucy Muthoni Njora, Civil Appeal 486 of 2019; (2021) EKLR there is nothing doctrinally or legally wrong about a judge adopting some measure of review, examination, or analysis of the merits in a judicial review case in order to arrive at the justice of the matter. Rather a failure to do so, out of a misconception that judicial review is limited to a dry or formalistic examination of the process only leads to intolerable superficiality. This would certainly be against Article 259 of the Constitution which requires us to interpret it in a manner that inter alia advances the rule of law, permits the development of the law and contributes to good governance.** **Be that as it may, it is the court’s firm view that the intention was never to transform judicial review into to full-fledged inquiry into the merits of a matter. Neither was the intention to convert a judicial review court into an appellate court. We say this or several reasons. First, the nature of evidence in judicial review proceedings is based on affidavit evidence. This may not be the best suited form of evidence for a court to try disputed facts or issues and then pronounce itself on the merits or demerits of a case. More so on technical or specialized issues, as the specialized institutions are better placed to so. Second, the courts are limited in the nature of reliefs that they may grant to those set out in Section 11(1) and (2) of the Fair Administrative Actions Act. Third, the court may not substitute the decision it is reviewing with one of its own. The court may not set about forming its own preferred view of the evidence, rather it may only quash an impugned decision. This is codified in Section 11(1) (e) and (h) of the Fair Administrative Action Act. The merits of a case are best analyzed in a trial or on appeal after hearing testimony, cross examination of witnesses and examining evidence adduced. Finally, as this court held in the case of Kenya Vision 2030 Delivery Board –vs- Commission and Administrative Justice, Attorney General and Eng. Judah Abekah, SC Petition 42 of 2019; (2021) EKLR, in matters involving the exercise of judgment ad discretion, a public officer or public agency can only be directed to take action; it cannot be directed in the manner or the particular way the discretion is to be exercised.”** 1. This is one of the cases which cannot escape a merit based review. As was stated in the cases quoted in the case of **County Government of Mombasa** **(Supra)** in determining whether the Minister arrived at a correct decision, it is important to examine what the Minister considered in arriving at his decision. 2. The proceedings both before the Arbitration Board and Land Adjudication Officer as well as before the Minister show that there was no contention as regards parcel 2778. The disputants father had eight (8) Syandas. He gave each of his two wives four (4) each. The Exparte Applicant’s house sold three (3) of their Syandas and remained with one. 3. As regards parcel 3282, though this parcel fell on the side which was given to the Exparte Applicant’s mother, the same had been sold to the Interested Party by Mr. Kamuya a brother to the Exparte Applicant. It is therefore clear that the Minister was not wrong in considering this evidence in arriving at his decision. **Disposition** 1. From the above analysis, it is clear that not only the Exparte Applicant has failed to demonstrate grounds for grant of judicial review, he has also failed to demonstrate that the Minister was biased or plainly wrong in his decision based on merit review as shown above. I therefore find that the amended notice of motion dated 21st May, 2025 is devoid of merit. The same is dismissed with costs to the Interested Party. **................................................** **HON. E. O. OBAGA, FCIArb** **JUDGE** **JUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 13TH DAY OF JULY, 2026.** **IN THE PRESENCE OF:** Mr. Nyingi for Interested Party. Court assistants - Kilonzo & Musyoki