https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3630

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT NAIROBI** **JUDICIAL REVIEW APPLICATION NO. ELCLJR E077 OF 2025** **IN THE MATTER OF: AN APPLICATION BY WAY OF CHAMBER SUMMONS BY KIPSIRGOI INVESTIMENTS** **LIMITED FOR ORDERS OF JUDICIAL REVIEW** **IN THE MATTER OF: AN APPLICATION UNDER SECTIONS 8 AND 9** **OF THE LAW REFORM ACT, CHAPTER 26 LAWS OF KENYA** **IN THE MATTER OF: AN APPLICATION UNDER ORDER 53 RULES (1)** **SUB-RULE (1), (2), (3) AND (4) OF THE CIVIL** **PROCEDURE RULES** **IN THE MATTER OF: AN APPPLICATION UNDER SECTIONS 4,6 AND 7 OF THE FAIR ADMINISTRATIVE ACTION ACT 2015** **IN THE MATTER OF: AN APPLICATION UNDER ARTICLES 10, 22, 23** **40,62,64 AND 67 OF THE CONSTITUTION OF** **KENYA** **IN THE MATTER OF: AN APPLICATION UNDER SECTION 12 AND 14** **OF THE NATIONAL LAND COMMISSION ACT** **IN THE MATTER OF: AN APPLICATION BY WAY OF CHAMBER** **SUMMONS FOR LEAVE TO INSTITUTE** **JUDICIAL REVIEW PROCEEDINGS** **REPUBLIC…………………….……………………..……………… APPLICANT** **=VERSUS=** **THE NATIONAL LAND COMMISSION ……………………1ST RESPONDENT** **THE NAIROBI CITY COUNTY …………………………….2ND RESPONDENT** **KIPSIRGOI INVESTMENTS LIMITED ………………… EX PARTE APPLICANT** **JUDGEMENT** 1. By a Notice of Motion dated 9th December 2025, brought under Sections 8 and 9 of the Law Reform Act, Sections 4, 6 and 7 of the Fair Administrative Act, and Order 53 Rules 1, 2, 3 and 4 of the Civil Procedure Rules, the Applicant seeks the following orders: 1. ***That an Order of Certiorari do issue to remove into this court and quash the decision by the National Land Commission and the Nairobi City County to issue and publish a Notice published in The Standard Daily Newspaper dated 15th November 2025, inviting objections and comments with regard to an intended allocation of the properties known as Title Numbers*** 1. ***Nairobi/Block 137/977*** 2. ***Nairobi/Block 137/978*** 3. ***Nairobi/Block 137/979*** 4. ***Nairobi/Block 137/980*** 5. ***Nairobi/Block 137/981*** 6. ***Nairobi/Block 137/982*** ***which parcels correspond and emanate from the unlawful sub-division of Land Reference Number 13065 owned by the Applicant.*** * 1. ***That an Order of Certiorari do issue to remove into this court and quash the decision or decisions by the National Land Commission and the Nairobi City County to issue a Notice dated 15th November 2025 and publish all Gazettes and other Notices culminating in the publication of the aforesaid said Notice dated 15th November 2025 in The Standard Newspaper on 15th November 2025 together with all proceedings related thereto.*** 2. ***That an Order of Prohibition do issue to forbid the National Land Commission and Nairobi City County from allocating the parcels of land known as Title Numbers Nairobi/Block 137/977, Nairobi/Block 137/978, Nairobi/Block 137/979, Nairobi/Block 137/980, Nairobi/Block 137/981, Nairobi/Block 137/982 to any Applicants for the same or to any persons already earmarked by them as Allotees of the parcels of land listed herein or taking any further steps or dealings regarding the said parcels in furtherance of the Notice published in The Standard Newspaper dated 15th November 2025.*** 3. ***That an Order of Prohibition to forbid the National Land Commission and Nairobi City County from proceeding with the intended regularizing of the tenure of the parcels of land known as Title Numbers Nairobi/Block 137/977, Nairobi/Block 137/978, Nairobi/Block 137/979, Nairobi/Block 137/980, Nairobi/Block 137/981, Nairobi/Block 137/982 or allocating the same to the intended Applicants or recipients or any other persons earmarked to be allocated the same or at all.*** 4. ***That the costs of this application be provided for.*** 1. The application is based on the grounds appearing on its face together with the supporting affidavit sworn by the Applicant’s director, Maureen Cheptoo Leting, on 25th November 2025. **THE APPLICANT’S CASE** 1. The deponent averred that on 2nd March 1990, the Ex-Parte Applicant purchased Land Reference Number 13065, the suit property herein, from Patrick St. Lawrence Cleverly Gethin for valuable consideration and that the title was transferred to the Applicant as shown in Entry Number 5 in the title. 2. The deponent averred that Mr Gethin was the registered proprietor of the property from 7th June 1973. She contended that both Mr Gethin and the Applicant held freehold titles to the property, which had never been owned by the Respondents as public land or held under leasehold tenure. Among the entries in the Certificate of Title was a Memorandum of Charge to Barclays Bank Limited dated 19th September 1975 and a Discharge thereof dated 27th March 1985. 3. She averred that prior to the sale, Mr Gethin had initiated a process to subdivide the property into six parcels with an accompanying road network. His surveyor prepared a new survey map, which was subsequently approved by the Director of Survey. However, the process was not finalized before the sale, as evidenced by his ability to sell the property as a single parcel. 4. She further averred that the Applicant never applied to the Chief Land Registrar to effect the subdivision, nor surrendered the original Certificate of Title for cancellation as required by law. Conversely, on 14th February 2024, the Applicant applied to the Director of Survey to cancel the survey map, indicating they no longer wished to proceed with the subdivision. The Director of Survey approved the request, cancelled the subdivision, and ordered that the original Certificate of Title be restored as Land Reference Number 13065. The six proposed subdivision parcels, identified as Land Reference Numbers 14695/1 to 14695/6, were subject to that cancellation. The Director of Survey further confirmed that the property had since been converted into the new land registration regime and renamed Nairobi Block 137/1199, with gazettement in progress. 5. The deponent averred that, unknown to the Applicant until 15th November 2025, the National Land Commission and Nairobi City County had been taking clandestine steps to acquire the Applicant's property by unilaterally and unlawfully completing the subdivision process and acquiring the six parcels through dubious means. 6. She stated that on 15th November 2025, an advertisement was published in The Standard Daily Newspaper by the National Land Commission seeking objections to an intended allocation of six parcels identified as Nairobi/Block 137/977 to Nairobi/Block 137/982. These parcels, which originated from the rescinded subdivision, had already been cancelled by the Director of Survey. She contended that those parcels had at all material times been the Applicant's private freehold land, that the purported subdivisions had been effected without the Applicant's knowledge, authority, or consent, and that the Applicant's property had at no time reverted to the Respondents or been converted from private to public land. 7. The deponent asserts that under Sections 12 and 14 of the National Land Commission Act, the Commission's power to alienate and allocate land is limited to public land. This restriction is supported by Articles 62, 64, and 67 of the Constitution of Kenya, which define public land as land that was unalienated on the effective date. She contended that the Commission has no legal authority to unilaterally convert private land into public land, subdivide private land or regularize tenure as has been purportedly done in this matter. 8. She further averred that the members of the Commission who approved the request to allocate the Applicant's private land were appointed on 2nd October 2019 for a single term of six years, which expired on 1st October 2025 under Section 8(5) of the National Land Commission Act. She contended that the National Land Commission was not lawfully in office on 12th November 2025 when it purported to approve the allocation, and that any business conducted by the Commission after 1st October 2025 was unlawful, null, and void. She further stated that the current Commission was appointed by the President on 12th March 2026, confirming that no lawful Commission was in office between 1st October 2025 and that date. Accordingly, she argued that the Notice of Intention to Allocate published on 15th November 2025 is a nullity. 9. The deponent averred that the Applicant was never served with any notice of intended acquisition in contravention of Section 4 of the Fair Administrative Action Act, and that no compensation had been paid, contrary to the mandatory provisions of Article 40 of the Constitution. She contended that the Respondents' actions in unilaterally and secretly attempting to change the property’s tenure from freehold to leasehold and its classification from private to public land available for allocation were unlawful, unconstitutional, and an arbitrary deprivation of the Applicant's right to own property. 10. The deponent averred that upon seeing the Notice on 20th November 2025, the Applicant’s advocates wrote to the Commission demanding retraction within 72 hours, but received no response. She stated that the Applicant's subsequent attempts to obtain details of the intended allocation under Section 14(2) of the National Land Commission Act were blocked. 11. She argued that unless this court intervened, the Respondents would proceed to illegally alienate, allocate, or regularise tenure over the Applicant's private property in gross violation of its constitutional rights to property ownership and fair administrative action. 12. In conclusion, the deponent urged the Court to allow the application as prayed. **THE 1ST RESPONDENT’S CASE** 1. The 1st Respondent filed a replying affidavit sworn by its Director of Land Administration, Dr Samuel Nthuni, on 11th March 2026 in opposition to the application. 2. The deponent averred that the 1st Respondent is an independent Commission established under Article 67(1) of the Constitution and operationalized by the National Land Commission Act, whose functions include the management and allocation of public land on behalf of the National and County Governments. 3. He averred that in the course of its constitutional and statutory duties, the Commission received a formal request from Nairobi City County on 8th October 2025 seeking the regularisation of the allocation of six parcels identified as Nairobi Block 137/977 to Nairobi Block 137/982. After an internal review, the Commission approved the request on 12th November 2025, having confirmed that it complied with all the procedural and regulatory requirements. She stated that the Chairperson subsequently signed the Notice of Intention to Allocate, which was published on 15th November 2025, to invite objections. 4. He further averred that the Commission received one objection from the Applicant's advocates on 20th November 2025, but it had not yet been reviewed because the Commissioners' mandate ended on 14th November 2025 and the process of appointing new Commissioners was ongoing. He explained that once the Commission was duly constituted, the objection would be heard and determined. He contended that the internal process should be allowed to proceed to its conclusion in accordance with the doctrine of exhaustion of remedies, which requires parties to pursue all available internal and statutory dispute resolution mechanisms before approaching the Court. 5. The deponent contends that the application failed to meet the necessary threshold for a successful judicial review and was an abuse of the Court's process. 6. In conclusion, he urged the Court to dismiss the application with costs. **THE 2ND RESPONDENT’S CASE** 1. The 2nd Respondent opposed the application through a replying affidavit sworn by its Director of Geographical Information Systems, Geoffrey Cheruiyot, on 21st April 2026. 2. The deponent averred that Article 62 of the Constitutiondistinguishes the categories of public land, vests the same in the national or county governments in trust for the people of Kenya, with the National Land Commission serving as the custodian of this public trust. 3. He further averred that Section 8(1)(a) of the Land Act requires the Commission to identify all public land and to maintain a georeferenced database thereof. Additionally, Section 12 requires any intended allocation of public land to be channelled through the Commission and be subjected to transparent and competitive processes, while Regulation 3 of the Land (Allocation of Public Land) Regulations confirms that only the Commission has the authority to allocate public land upon a request from the national or county government. 4. The deponent averred that the 2nd Respondent's County Executive Committee Member for Built Environment and Urban Planning formally requested the Commission to regularise the tenure and allocate six parcels originating from the suit property, being Nairobi/Block 137/977 to Nairobi/Block 137/982. Following a thorough internal review, the Commission approved the request and published the Notice of Intention to Allocate on 15th November 2025, in accordance with Section 14(1) of the Land Act, which requires at least 30 days' prior notice to the public and all interested parties. He contended that the process was conducted in strict compliance with the law. 5. The deponent averred that upon receiving the Applicant's objection dated 20th November 2025, the CEC Built Environment and Urban Planning, through a letter dated 9th December 2025, requested the Commission to review the proposed allocation and the issues raised by the Applicant. In a separate letter of the same date, the CEC concurred with the Applicant's concerns and formally directed the Director of Surveys to cancel the subdivision of the suit property, restoring the land to its original status, and copied the letter to the Applicant's advocates. 6. He argued that the allegations claiming the 2nd Respondent had acquired the suit properties are entirely unfounded, and that the claim regarding information being withheld was false and lacked supporting evidence, given that the 2nd Respondent had consistently acted in good faith and responded promptly upon receiving the objection. 7. The deponent further averred that under the Land (Allocation of Public Land) Regulations, it is solely within the jurisdiction of the Commission to examine representations from the public regarding an intended allocation and to give due regard to all matters required under any other law, and that the jurisdiction of this court has therefore been invoked without necessity. He contended that under Sections 9(2) and (4) of the Fair Administrative Action Act, a party is generally required to exhaust all available internal remedies before seeking judicial intervention, and that only in exceptional circumstances could that duty be dispensed with upon formal application. 8. He argued that the Applicant is required to await the Commission's determination of its objection. He contended that the application is premature and bereft of merit, given that the 2nd Respondent had already aligned itself with the Applicant's position. In conclusion, he urged the Court to dismiss the application with costs. 9. The application was canvassed by way of written submissions. **THE EX-PARTE APPLICANT’S SUBMISSIONS** 1. The ex parte Applicant filed its submissions dated 10th March 2026 and 24th April 2026. 2. On behalf of the Applicant, Counsel submitted that the Respondents' actions should be examined within the framework of the constitutional and statutory laws that establish their mandate. The 1st Respondent's mandate is outlined in Article 67 of the Constitution and the National Land Commission Act, Section 5(2) which empowers the Commission to alienate public land on behalf of and with the consent of the National and County Governments, monitor the registration of all rights and interests in land, develop and maintain a land information management system, and manage all unregistered trust land and unregistered community land on behalf of County Governments. 3. Counsel submitted that a plain reading of these provisions clearly indicates that the 1st Respondent is only authorized to alienate public land, and that the suit property being private freehold land, falls outside its administrative jurisdiction. Counsel contended that the Applicant, as an innocent purchaser for value without notice, is protected under Section 14(7) of the National Land Commission Act. Counsel asserted that private land cannot be converted into public land without due process involving the owner. 4. Counsel relied on **Mwaja & 5 Others v National Land Commission & Another [2023] KEELC 16458 (KLR),** where the court held that the Commission had acted without jurisdiction in making a determination over private land and directing the Chief Land Registrar to issue a title thereto. Counsel submitted that by purporting to regularise tenure over alienated private land and commencing allocation processes in respect thereof, the Respondents had acted ultra vires their constitutional and statutory mandate, and that their actions were unconstitutional, null, and void ab initio. 5. Counsel submitted that the Respondents had effectively conceded the matter. Counsel submitted that the 2nd Respondent's replying affidavit admitted that upon receipt of the Applicant's objection, it agreed with its contents and directed the Director of Survey to cancel the subdivisions and restore the parcel to its original condition. Counsel contended that having conceded that the property belonged to the Applicant and that the impugned subdivision and allotment were unlawful, all that remained was for the Court to allow the application with costs. 6. Counsel submitted that under Section 8(5) of the National Land Commission Act, Commissioners are appointed for a single non-renewable term of six years. Counsel argued that the Commissioners appointed on 2nd October 2019, as evidenced by Kenya Gazette Volume XXI Number 131, vacated office on 1st October 2025, and the current Commissioners were not appointed until 11th March 2026. Counsel argued that the 1st Respondent was defunct at the time it approved the regularisation request. Counsel contended that any decisions made during that period were made without authority and were null and void, and should be quashed by this Court. 7. Counsel submitted that by issuing the impugned Notice and advertising its intention to allocate illegal subdivisions of the Applicant's land, the Respondents threatened to violate the Applicant's rights without giving it an opportunity to be heard, which is contrary to Article 47 of the Constitution and Sections 4, 5, and 6 of the Fair Administrative Action Act. Counsel relied on Section 4(3) of the Fair Administrative Action Act and on the case of **Sceneries Limited v National Land Commission [2017] eKLR**, where the Court held that failure to give proper notice was itself a denial of natural justice, and that a newspaper advertisement publishing only a land reference number does not qualify as sufficient notice. 8. Counsel noted that the Applicant was never notified of any proceedings whereby the suit property reverted to unalienated land and had never been invited to any process in which its land was subdivided, in clear contravention of its constitutional right to own property. Upon learning of the impugned notice, the Applicant lodged a formal objection on 20th November 2025, but received no response until the 2nd Respondent's replying affidavit was served on 22nd April 2026, during which the Respondents took no steps to halt or review the unlawful process. Counsel submitted that such conduct amounted to procedural unfairness, abdication of statutory duty, and irrational administrative action amenable to judicial review. 9. Regarding prematurity, Counsel cited **Coalition for Reform and Democracy & Others v Attorney General, Petition No. 628 of 2014**, to submit that a party need not wait until a right or fundamental freedom has been violated before approaching the court; a threatened violation is sufficient. Counsel further relied on **Republic v National Land Commission & Another Ex-Parte Ismail Rahimutulla Trustees Registered Sony Holdings Limited** (unreported), where the Court confirmed that an aggrieved party does not need to wait for a final decision before approaching the Court to stop a process that lacks jurisdictional basis, is capricious, or is irrational. 10. Counsel submitted that the Applicant has established the Respondents' gross violation of its constitutional rights under Articles 40, 47, and 64 of the Constitution, that the impugned Notice of 15th November 2025 and all proceedings flowing therefrom had been undertaken without jurisdiction and in violation of statutory and constitutional requirements, and that the threshold for orders of Certiorari had been satisfied. Counsel further submitted that the Respondents' demonstrated intention to proceed with the allocation of the suit parcels amounted to an unconstitutional deprivation of private property contrary to Article 40 of the Constitution and must be restrained by orders of Prohibition. In conclusion, Counsel urged the court to allow the application with costs. **THE 1ST RESPONDENT’S SUBMISSIONS** 1. The 1st Respondent filed its submissions dated 4th May 2026. 2. On behalf of the 1st Respondent, Counsel submitted that the allegation of a violation of Article 47 ofthe Constitution is premature and without merit. Counsel contended that the 1st Respondent had initiated a lawful, transparent, and participatory process by issuing a Notice of Intention to Allocate and expressly inviting objections. Counsel submitted that the Applicant had duly exercised that right by lodging an objection which is pending determination, and that no adverse decision had been made against the Applicant. Counsel submitted that in the absence of a final determination, there exists no basis for alleging a violation of Articles 40 or 47 of the Constitution, and that the claim is premature, speculative, and legally untenable. 3. Counsel submitted that the doctrine of exhaustion of remedies requires parties to exhaust all available internal mechanisms before approaching the Court. Counsel relied on **Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] eKLR**, where the Court of Appeal emphasized that dispute-resolution mechanisms must be exhausted before judicial jurisdiction is invoked, Courts being fora of last resort. 4. Counsel further relied on **Malusha v Swaleh & Another [2025] KECA 761 (KLR),** where the Court of Appeal confirmed that all available administrative or alternative remedies must be exhausted before seeking judicial intervention. Further reliance was placed on **Ernst & Young LLP v Capital Markets Authority & Another [2017] eKLR,** where the Court held that a Petitioner who approaches the Court prematurely to stop a process at a point where a breach of a fundamental right has not been sufficiently demonstrated is not entitled to judicial intervention if the steps taken by the Respondent conformed to the law. Counsel submitted that the 1st Respondent had established a clear process for hearing objections, that the Applicant had already invoked that process, and that it should await its outcome before seeking the intervention of this Court. 5. On the orders sought, Counsel relied on **Municipal Council of Mombasa v Republic & Umoja Consultants Limited [2002] eKLR**, where the Court of Appeal held that in judicial review, the court was concerned only with the process leading to a decision, namely whether the decision maker had jurisdiction, whether affected persons were heard, and whether relevant considerations were taken into account. The court is not entitled to act as an appellate body and examine the merits of the decision. Counsel submitted that, since the Applicant failed to prove a violation of its constitutional rights, it was not entitled to the relief sought. 6. Counsel submitted that there is no cause of action against the 1st Respondent since no final decision was made regarding the Notice of Intention to Allocate. 7. In conclusion, Counsel urged the Court to dismiss the application with costs. **THE 2ND RESPONDENTS SUBMISSIONS** 1. The 2nd Respondent filed its submissions dated 4th May 2026. 2. On behalf of the 2nd Respondent, Counsel submitted that Article 62 of the Constitution vests public land in the national or county governments in trust for the people of Kenya, with their stewardship and management entrusted to the National Land Commission. Counsel relied on **Advisory Opinion Reference No. 2 of 2014 [2015] KESC 3 (KLR),** where the Supreme Court held that public land falls within the administrative competence of the Commission and that the power of alienation is conferred upon it with the consent of the National or County Government, establishing a system of checks and balances between the two state organs. 3. Counsel further submitted that Section 8(1)(a) of the Land Act requires the Commission to identify all public land and maintain a georeferenced database thereof. It was submitted that Section 12 requires any intended allocation to be channelled through the Commission and to undergo transparent and competitive processes, and that Regulation 3 of the Land (Allocation of Public Land) Regulations confirms that only the Commission has the authority to allocate public land upon request by the national or county government. 4. Counsel submitted that the 2nd Respondent's CEC for Built Environment and Urban Planning had formally and in good faith invoked the Commission's constitutional mandate when requesting the regularisation of tenure over the six parcels. Counsel argued that the Commission then undertook a considered internal appraisal and published the impugned Notice on 15th November 2025 in compliance with Section 14(1) of the Land Act, noting that the allocation process was still in its early stages, having only been initiated by that publication. 5. Counsel submitted that upon receiving the Applicant's objection, the 2nd Respondent acted promptly, and that by its letters of 9th December 2025, it requested the Commission to re-examine the proposed allocation and directed the Director of Surveys to annul the subdivision, these letters being copied to the Applicant's advocates. Counsel contended that this demonstrated good faith as defined in Black's Law Dictionary, 12th Edition. Counsel further submitted that these curative steps were taken on 9th December 2025, well before the judicial review proceedings were served upon the 2nd Respondent on 16th December 2025, underscoring that the process had already been halted independently of any Court intervention. 6. Counsel submitted that judicial review remedies are discretionary and would not be granted where they serve no useful purpose. Counsel relied on **Sanghani Investment Limited v Officer in Charge, Nairobi Remand & Allocation Prison [2007] eKLR**, where the Court held that judicial review would be granted only if it could serve a meaningful purpose. Further reliance was placed on **George Peter Kaluma's text Judicial Review: Law, Procedure and Practice** to emphasize that an application may be refused where the orders sought would serve no useful purpose. Counsel contended that no ongoing wrong existed that could form the basis of adverse judicial censure, as the allocation process had already been halted through the 2nd Respondent's timely correspondence. 7. Counsel argued that the proceedings violated the doctrine of ripeness, as the orders sought were anticipatory and speculative, with the matter still pending before the Commission for deliberation and no final decision having been made. Counsel cited **Republic v National** **Employment Authority & 3 Others Ex-Parte Middle East Consultancy Services Limited [2018] eKLR,** where the Court stated that the doctrine of ripeness prevents a party from approaching the Court prematurely before facing prejudice or a real threat of it, with Courts generally handling cases that have already crystallised rather than those that are prospective or hypothetical. Counsel relied on **Wanjiru Gikonyo & 2 Others v National Assembly of Kenya & 4 Others [2016] eKLR,** where the court held that an issue must be ripe based on a factual context for it to be determined, and that the court is prevented from deciding matters arising out of mere apprehension. 8. Counsel urged this Court to recognise that the 2nd Respondent acted in good faith and in scrupulous adherence to the law, that its timely intervention had already averted the harm complained of. Counsel urged the court to decline issuing orders that would unjustly penalise the 2nd Respondent for conduct that had, by the time of the hearing, already rectified the matters in dispute. **ANALYSIS AND DETERMINATION** 1. Having considered the application, the respective affidavits and the rival submissions, the following issues arise for determination: * 1. *Whether the application is premature due to the doctrine of exhaustion of remedies.* 2. *Whether the 1st Respondent was lawfully constituted at the time it purported to approve the request for regularization* 3. *Whether the Respondents had jurisdiction to regularize the tenure of and allocate Land Reference Number 13065, which is privately owned freehold land, as public land;* 4. *Whether the Respondent violated the Ex Parte Applicant's right to fair administrative action as guaranteed under Article 47 of the Constitution and the Fair Administrative Action Act;* 2. The duty of a Court in Judicial Review proceedings was set out in the case of **Pastoli vs Kabale District Local Government Council and Others (2008) 2 E.A 300** where 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 ….. Illegality is when the decision-making authority commits an error of law in the process of taking 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 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 a 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 or legislative instrument by which such authority exercises jurisdiction to make a decision.’*** 1. The parameters of Judicial Review were re-affirmed by the Court of Appeal in the case of **Municipal Council of Mombasa Vs Republic & Umoja Consultants Ltd C.A Civil Appeal No. 185 of 2001** where it was held that: ***“Judicial Review is concerned with the decision making process, not with the merits of the decision itself; the Court*** would ***concern itself with such issues as to whether the decision maker had the jurisdiction, whether the persons affected by the decision 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. The Court should not act as a Court of Appeal over the decider which 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.”*** 1. The Supreme Court in **John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR)** held thus: ***“Judicial review is a constitutional supervision of public authorities involving a challenge to the legal and procedural validity of the decision. It does not allow the court of review to examine the evidence with a view of forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decision itself it may be found to be perverse, or irrational, or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or through a failure for any reason to take into account a relevant matter, or through taking into account an irrelevant matter, or through some misconstruction of the terms of the statutory provision which the decision maker is required to apply. While the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies, it is perfectly clear that in a case of review. as distinct from an ordinary appeal, the court may not set about forming its own preferred view of the evidence. See Reid v Secretary of State for Scotland [1999] 2 AC 512.”*** **WHETHER THE APPLICATION IS PREMATURE BY REASON OF THE DOCTRINE OF EXHAUSTION OF REMEDIES** 1. The Respondents contend that this matter is premature due to the objection filed by the Applicant on 20th November 2025 in response to the Notice of Intention to Allocate published on 15th November 2025. They argued that the Applicant should have waited for the outcome of that process before approaching this Court. 2. It is well established that where a clear procedure for redress of a specific grievance is laid down by the Constitution or an Act of Parliament, that procedure should be strictly adhered to. In **Speaker of National Assembly v. Njenga Karume [2008] 1 KLR 425,** the Court of Appeal held that; ***“Irrespective of the practical difficulties enumerated...these should not in our view be used as a justification for circumventing the statutory procedure...In our view, there is considerable merit in the submission that where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. We observe without expressing a concluded view that Order 53 of the Civil Procedure Rules cannot oust clear constitutional provisions and statutory provisions.”*** 1. This principle is however not absolute. The Supreme Court in **Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) [2023] KESC 113 (KLR)** endorsed a nuanced approach that respects statutory dispute resolution mechanisms while preserving access to justice in appropriate cases, recognising that a Court may intervene where circumstances justify exemption. 2. This approach aligns with Section 9(4) of the Fair Administrative Action Act, which authorizes a Court, in exceptional circumstances and when the interests of justice require, to exempt a party from the obligation to exhaust internal remedies. 3. In **Krystalline Salt Ltd v Kenya Revenue Authority [2019] KEHC 6939 (KLR),** the court held that: ***“Additionally, what constitutes exceptional circumstances depends on the facts and circumstances of the case and the nature of the administrative action at issue. Thus, where an internal remedy would not be effective and/or where its pursuit would be futile, a court may permit a litigant to approach the court directly. So too where an internal appellate tribunal has developed a rigid policy which renders exhaustion futile. These requirements have not been shown to exist in this case.*** ***63. The*** [***Fair Administrative Action Act***](https://new.kenyalaw.org/akn/ke/act/2015/4) ***does not define ‘exceptional circumstances.’ However, this court interprets exceptional circumstances to mean circumstances that are out of the ordinary and that render it inappropriate for the court to require an applicant first to pursue the available internal remedies. The circumstances must in other words be such as to require the immediate intervention of the court rather than to resort to the applicable internal remedy.”*** 1. In the matter at hand, the Applicants’ complaint is threefold: that the 1st Respondent acted without jurisdiction over private land; that it did so without granting the Applicant a hearing; and that its conduct threatened the Applicant's constitutionally protected right to property under Article 40. 2. It is not in dispute that the Applicant raised an objection with the 1st Respondent on 20th November 2025. The 1st Respondent's acknowledged that the Commission was unable to review that objection because the Commissioners' mandate had expired on 14th November 2025 and no new Commissioners had been appointed at the time this suit was instituted, the current Commission having only been constituted on 12th March 2026. The internal remedy was therefore, at the material time, entirely unavailable, rendering any obligation to exhaust it impractical and futile. 3. Furthermore, the Applicant's main complaints go beyond procedural irregularities. They dispute the jurisdictional authority of the 1st Respondent to manage private freehold land entirely and question the constitutional validity of the process by which that land was subjected to an allocation regime. These are issues that the Commission itself, as the body whose jurisdiction is contested, cannot impartially decide. 4. In **K K B v S C M & 5 others [2022] KEHC 289 (KLR)**, the Court expressed the principle as follows: “***In summation, the doctrines of ripeness and constitutional avoidance shun to deal with a constitutional issue where there exists another legal course which can give the litigant the relief he seeks. In other words, a constitutional issue is not ripe for determination until the determination of the constitutional issue is the only course that can give the litigant the remedy he seeks. Both constitutional avoidance and ripeness avert the determination of the constitutional issues until it becomes very necessary to the extent that it is the only course available to assist the litigant’s cause...”*** 1. With no lawfully constituted Commission in office at the material time, no alternative mechanism existed through which the Applicant could have protected its rights. The threatened deprivation of private property without jurisdiction, notice, or compensation could not have waited for the reconstitution of the very body that caused the harm. 2. Based on the evidence on record, this court finds that the circumstances herein clearly fall within the exception to the doctrine of exhaustion of remedies. This court has wide jurisdiction to hear and determine disputes concerning land, and the interests of justice require that it exercise that jurisdiction in the present matter. Based on the foregoing, I find that the application is not premature. **WHETHER THE 1ST RESPONDENT WAS LAWFULLY CONSTITUTED AT THE TIME IT PURPORTED TO APPROVE THE REQUEST FOR REGULARIZATION** 1. The Applicant asserts that the Commissioners who approved the regularisation request and published the impugned Notice of Intention to Allocate were appointed on 2nd October 2019. The Applicant argued that, under Section 8(5) of the National Land Commission Act, their single non-renewable term of six years had expired by the time the impugned acts were carried out. In this regard, the Applicant produced a copy of the Gazette Notice of their appointment. 2. Although the Gazette Notice of appointment was published on 2nd October 2019, the Commissioners in question were sworn into office on 15th November 2019. 3. In **Gikenyi B. & another v National Assembly & 6 others; Public Service Commission (Interested Party) [2025] KEHC 12276 (KLR),** the court held that a gazette notice, though indicative of an appointment, does not conclusively determine the date of assumption of office. The Court noted that in the ordinary and practical operations of public appointments, the formal date of gazettement does not always align with the date of assumption of office or the issuance of instruments of appointment. 4. The Commission's approval of the regularisation request was granted on 12th November 2025, three days before the expiry. This Court accordingly finds that the Commissioners were lawfully in office when the approval was granted. The Applicant's argument that the Commission's decision was void for lapse of mandate is therefore not supported by the facts. **WHETHER THE RESPONDENTS HAD JURISDICTION TO REGULARIZE THE TENURE OF AND ALLOCATE LAND REFERENCE NUMBER 13065, BEING PRIVATELY OWNED FREEHOLD LAND, AS PUBLIC LAND** 1. The 1st Respondent mandate under Article 62(2) and 67 of the Constitution and the National Land Commission Act is limited to the management, administration, and allocation of public land. The Applicant's asserts that the suit property is private freehold land that has at all material times been outside the 1st Respondent's jurisdictional competence. They argued that the Respondents had no legal authority to subject it to a regularisation and allocation process. 2. In this regard, the Applicant produced its certificate of title for the suit property, demonstrating that the property is freehold private land, its letter to the Director of Survey dated 14th February 2024 requesting the cancellation of the subdivision, and the Director of Survey's response of 20th November 2025 which acceded to that request and confirmed the restoration of the original title which confirm that the suit property has remained private freehold land throughout the material period. 3. The conduct of the 2nd Respondent offers insight into this matter. In its letter dated 9th December 2025, the County Executive Committee Member for Built Environment and Urban Planning of the 2nd Respondent explicitly agreed with the Applicant's objection, acknowledged that the suit property is private land, and directed the 1st Respondent to cancel the subdivision and restore the land to its original condition. 4. While the candour and promptness of the 2nd Respondent in acting are noted, that very admission confirms that the regularisation process was initiated with respect to land that is not public land and over which the 1st Respondent had no authority to act. 5. The conversion of private land to public land cannot be carried out unilaterally or administratively by the National Land Commission or any other public body. Section 9 of the Land Act sets out four methods for converting private land to public land: compulsory acquisition under Part VIII of the Land Act, which requires the payment of prompt, just, and full compensation under Article 40(3) of the Constitution; voluntary surrender; transfer; or reversion of the leasehold interest to the Government after a lease expires. 6. Neither process was initiated, pursued, or concluded regarding the suit property. There is no evidence before this court of any gazette notice of intention to acquire, any inquiry, any award of compensation, or any instrument of surrender or transfer. Since the suit property is held under freehold tenure, no leasehold interest exists therein, and no question of reversion of such interest can arise. Consequently, the suit property has never ceased to be private land and could not lawfully have been subjected to any allocation process by the Respondents. 7. Courts have consistently held that the 1st Respondent's mandate does not extend to private land. In **Mwangi Stephen Murithi v National Land Commission & 3 Others (2018) eKLR,** the Court held that the Commission has no mandate to revoke titles to private land, its jurisdiction being confined to public land. That position was confirmed in **Mwaja & 5 Others v National Land Commission & Another (ELC No. 100 of 2021) [2023] KEELC 16458 (KLR),** where the Court held that a determination made by the Commission over private land was made without jurisdiction and outside the law, and was accordingly void. 8. Accordingly, this court finds that the approval of the regularisation request on 12th November 2025 and the publication of the Notice of Intention to Allocate on 15th November 2025 were carried out without jurisdiction over the subject matter, and are void ab initio. **WHETHER THE RESPONDENTS BREACHED THE EX PARTE APPLICANT'S RIGHT TO FAIR ADMINISTRATIVE ACTION** 1. **Article 47** Article 47(1) and (2) of the Constitution provides as follows; ***1. Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.*** ***2. If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.*** 1. It is clear from the above provisions that the tribunal or authority entrusted with the mandate of making decisions must act in a fair manner. Procedural fairness is a Constitutional requirement in administrative actions. 2. Article 50(1) of the Constitution provides for fair trial as follows: ***Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.*** 1. Section 4(3)(b) of the Fair Administrative Action Act, 2015 imports the rules of natural justice and provides as follows: ***(3) Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision:*** ***(b) an opportunity to be heard and to make representations in that regard;*** 1. The Constitutional Court of South Africa clarified the content and purpose of the right to fair administrative action in **President of the Republic of South Africa and Others v South African Rugby Football Union and Others (CCT16/98) 2000 (1) SA 1.** as follows; ***“Although the right to just administrative action was entrenched in our Constitution in recognition of the importance of the common law governing administrative review, it is not correct to see section 33 as a mere codification of common law principles. The right to just administrative action is now entrenched as a constitutional control over the exercise of power. Principles previously established by the common law will be important, though not necessarily decisive, in determining not only the scope of section 33, but also its content. The principal function of section 33 is to regulate the conduct of the public administration, and, in particular, to ensure that where action taken by the administration affects or threatens individuals, the procedures followed comply with the constitutional standards of administrative justice. These standards will, of course, be informed by the common law principles developed over decades…” [Emphasis supplied]*** 1. It is equally trite that the right to fair administrative action is distinct from the right to a fair hearing under Article 50 of the Constitution. In **Judicial Service Commission v Mbalu Mutava & another [2015] KECA 741 (KLR)** the Court of Appeal observed as follows: ***“Fair administrative action, on the other hand, refers broadly to administrative justice in public administration. It is concerned mainly with control of the exercise of administrative powers by state organs and statutory bodies in the execution of constitutional duties and statutory duties guided by constitutional principles and policy considerations. The right to fair administrative action, though a fundamental right, is contextual and flexible in its application and as article 24(1) provides, can be limited by law. “Fair hearing” in article 50(1) as the text stipulates applies where any dispute can be resolved by the application of the law and applies to proceedings before a court or, if appropriate, another independent and impartial tribunal or body”*** 1. In the matter before us, the administrative action involved the 1st Respondent approving the regularisation request on 12th November 2025, followed by the publication of the Notice of Intention to Allocate on 15th November 2025. That action directly threatened the Applicant's right to property under Article 40 of the Constitution, as it purported to convert the Applicant's private freehold land into public land available for allocation to third parties. 2. Based on the material presented before this court, it is clear that the Applicant was neither given prior notice of the intended administrative action by which the suit property was being treated as public land nor invited to make representations before the approval was granted. Furthermore, the Applicant was not provided with any statement of reasons. The Applicant only became aware that its land was subject to an intended allocation upon seeing a newspaper advertisement on 20th November 2025, five days after the Notice had already been published. The Applicant's subsequent letter of objection, dated 20th November 2025, received no response from the 1st Respondent, the Commission having, by that date, lost its quorum following the expiry of the majority of its Commissioners' terms. 3. This court finds that the Respondents' actions clearly fell short of the constitutional and statutory standards outlined in Article 47 and Section 4(3) of the Fair Administrative Action Act. The Applicant was denied prior notice, denied an opportunity to be heard before the impugned action was taken, and denied a statement of reasons. The publication of a notice in a daily newspaper identifying only a land reference number did not, in the circumstances, constitute adequate notice to the Applicant as the registered owner of the suit property. This finding is consistent with the holding in **Sceneries Limited v National Land Commission [2017] eKLR,** where the court held that a newspaper advertisement publishing only a land reference number did not satisfy the requirements of natural justice and did not amount to adequate notice to an affected party. 4. The upshot of the foregoing is that the application is merited and is hereby allowed in the following terms: * 1. ***An order of certiorari do issue removing into this court and quashing the decision of the 1st Respondent to approve the regularisation request in respect of Land Reference Number 13065 and to publish the Notice of Intention to Allocate the parcels known as Nairobi/Block 137/977, Nairobi/Block 137/978, Nairobi/Block 137/979, Nairobi/Block 137/980, Nairobi/Block 137/981, and Nairobi/Block 137/982, as published in The Standard newspaper on 15th November 2025.*** 2. ***An order of certiorari do issue removing into this court and quashing all Gazette Notices, decisions, and proceedings made or taken by the 1st and 2nd Respondents culminating in the publication of the said Notice dated 15th November 2025, together with all proceedings related thereto.*** 3. ***An order of prohibition do issue forbidding the 1st and 2nd Respondents, their servants, agents, and all persons acting on their behalf or under their authority, from allocating the parcels known as Nairobi/Block 137/977, Nairobi/Block 137/978, Nairobi/Block 137/979, Nairobi/Block 137/980, Nairobi/Block 137/981, and Nairobi/Block 137/982 to any applicants, intended allottees, or other persons, and from taking any further steps or dealings in respect of the said parcels in furtherance of the Notice published on 15th November 2025 or otherwise.*** 4. ***An order of prohibition do issue forbidding the 1st and 2nd Respondents, their servants, agents, and all persons acting on their behalf or under their authority, from regularising the tenure of, alienating, or in any manner dealing with the parcels known as Nairobi/Block 137/977, Nairobi/Block 137/978, Nairobi/Block 137/979, Nairobi/Block 137/980, Nairobi/Block 137/981, and Nairobi/Block 137/982, being parcels emanating from the unlawful subdivision of Land Reference Number 13065, which is the private freehold property of the Applicant.*** 5. ***The costs of this application shall be borne by the 1st and the 2nd Respondents.*** **RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 5TH DAY OF JUNE 2026.** **…………………………………….** **HON. T. MURIGI** **JUDGE** **IN THE PRESENCE OF**: Ms Namai holding brief for Ongicho for the Applicant Karenju holding brief for Mumia for the 2nd Respondent Ahmed – Court assistant