https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4160

Republic v National Land Commission & 9 others; Wilson & 3 others (Ex parte Applicants) (Environment and Land Judicial Review Case 2 of 2019) [2026] KEELC 4160 (KLR) (1 July 2026) (Ruling) Neutral citation: [2026] KEELC 4160 (KLR) Republic of Kenya In the Environment and Land Court at Nyeri Environment and Land Judicial Review Case 2 of 2019 EK Makori, J July 1, 2026 Between Republic Applicant and The National Land Commission Respondent and The County Government of Nyeri 1st Interested Party Frederick Murage 2nd Interested Party Ibraim Ndambi 3rd Interested Party Mundia Karumu 4th Interested Party Thumbi Weru 5th Interested Party Kiana Gikuhi 6th Interested Party Geoffrey Ngunyi 7th Interested Party Samuel Kiongo Kamau 8th Interested Party Samuel Munga 9th Interested Party and Ephraim Muriuki Wilson Ex parte Applicant Wilson Ngatia Karungaru Ex parte Applicant Simon Muriithi Kaburu Ex parte Applicant Joseрh Масhira Gichuki Ex parte Applicant Ruling 1.Several applications have been filed in this suit. The first is an application under Notice of Motion dated 28th November 2925, filed by the 2-9th Interested Parties, seeking that the Court set aside and/or discharge the Orders granting a stay on the implementation of the findings and determination of the National Land Commission dated 21st January 2019. 2.The Application is supported by the affidavit of the 8th Interested Party herein, who deposed that the Ex parte Applicants filed the Chamber summons dated the 20th day of March 2019, seeking to institute judicial review proceedings. The summons sought leave to operate as a stay of the implementation of the National Land Commission's findings, which were in favor of the interested parties. It declared the title documents issued on behalf of the Ex parte Applicants herein as illegally issued. This Honorable Court disallowed the said application seeking leave on the 25th day of July, 2019, but the same was subsequently granted by the Court of Appeal vide Civil Appeal No. 15 of 2020. 3.It was noted that the Ex Parte Applicants were required to file a substantive notice of Motion within twenty-one (21) days of being granted leave but have failed and/or ignored to do so. 4.The 8th Interested Party deposed that, together with the other interested parties, they have been highly prejudiced by the orders of stay that the Ex-parte Applicants are enjoying, as they are prohibited from proceeding to obtain Title documents for their respective properties and are unable to enjoy the fruits of the National Land Commission's findings, as well as by the heavy financial implications of defending the said proceedings. 5.Therefore, the Interested Parties’ position is that it is in the interests of justice and fairness that the orders of stay be set aside and/or varied. 6.Mr. Gikandi Ngibuini, Counsel for the Ex parte Applicants herein, swore a replying affidavit in this application and deposed that, from the time the appeal from this Court to the Court of Appeal was heard, he made follow-up attempts with the Court of Appeal to obtain updates on the delivery of the judgment. 7.In particular, Counsel wrote a letter dated October 24, 2024, which received no response by November 19, 2025. He then wrote a further letter to the Deputy Registrar requesting that the file be placed before the Judge for directions. As a result of this follow-up, his learned friend, Mr. Mark Mwanzia, informed him that the judgment had already been delivered on July 31, 2025. After learning this, he wrote a letter to the Court expressing his apology. 8.For this reason, Counsel argues that he was unable to file the Notice of Motion dated December 2, 2025, within the 21 days from the date of the judgment, and that this delay was entirely due to a lack of knowledge of the delivery of the judgment. 9.Counsel for the Ex parte Applicants believes that the Ex parte Applicants should not be prejudiced or condemned unheard for a delay that did not arise from any fault on their part. Counsel further states that it is therefore fair and just that the Notice of Motion dated December 2, 2025, be deemed duly filed within the prescribed 21-day period for lodging such an application. 10.The other applications on record are by the Ex-parte Applicants, one dated 3rd December 2025, seeking that this Court be pleased to grant leave for the Notice of Motion dated 2nd December 2025 herein to be deemed duly filed within the statutory 21 days, with effect from 31st July 2025, the date of delivery of the Court of Appeal judgment in Civil Appeal No. 15 of 2020, and praying that the Court issue directions for the hearing and determination of the said Notice of Motion. 11.The Notice of Motion dated December 2 is the substantive judicial review application, which seeks the following orders:a.That this Honourable Court be pleased to grant the Ex- Parte Applicants an order of Certiorari to bring into this Honourable Court for purposes of quashing the decision of the National Land Commission, the 1st Respondent therein, through its determination for review of grants and dispositions of public land of Sofia area, Karatina Township dated 21st January, 2019 through its former chairperson revoked titles for titles blocks 1/422, 1/426, 1/428, 1/433, 1/435, 1/438, 1/441, 1/444, 1/448, 1/450, 1/421, 1/423, 1/424, 1/425, 1/427/1/429, 1/430, 1/431, 1/432, 1/436, 1/437, 1/439, 1/440, 1/442, 1/443, 1/445, 1/446, 1/447 and 1/449.b.That this Honourable Court be pleased to grant the Ex-parteapplicants an order for certiorari to bring into this Honourable Court for purposes of quashing the decision of the Respondent failing to involve the Ex-parteApplicants in the inquiries and hearing concluded by the Respondent, thus violating the fundamental rights as per Article 47 and 50 of the Constitution.c.That this Honourable Court be pleased to grant an order of prohibition to prohibit the Respondents by themselves, agents, employees or whomsoever from taking any steps, actions and /or measures to revoke the said titles from the Applicants as it does not have any mandate to revoke the said titles and further prohibiting the Respondents from directing any actions to be done so.d.That the costs of this application be provided for. 12.The 8th Interested Party swore a reply affidavit in response to this application on the 17th of December 2025, in which he deposed that none of the Ex-parte Applicants had indicated what action they took to follow up on the matter from the 24th of October 2024 to the 19th of November 2025 and the 27th of November 2025, for a period of over (13) Thirteen months, in an effort to determine the outcome of the Appeal despite having instructed an Advocate. 13.He deposed that the Advocate on record has admitted receiving an email from the Court of Appeal but failed to act on it. That the application was filed only after, and in reaction to, the application they filed dated the 28th of November 2025, and is not based on any bona fide grounds to be articulated and adjudicated before the Honor Court. 14.Further, he deposed that, as advised by his Advocates on record, the Supporting Affidavit is totally incompetent because the advocate made it, not the Ex parte Applicant. 15.Further, that the court does not have jurisdiction to extend the time stipulated by law for filing the substantive Notice of Motion, and hence the said application is incompetent and tantamount to a gross abuse of the court process. 16.Regarding the prejudice they have suffered, the 8th Interested Party deposed that, because leave was granted to operate as a stay, no term as to costs or as to giving security, such as a bank guarantee, an insurance bond from a reputable institution, or a cash deposit, was ordered. This culminated in the leave orders operating as a stay being highly prejudicial to the interested parties and leading to heavy financial loss and damage, since they have been deprived of the benefit of obtaining title documents to their properties, which titles would greatly improve their livelihoods and lessen any anxiety that has been meted out by the ex parte applicants to the interested parties for every day that the leave operates as a stay. 17.Thus, if the court grants the prayers sought, the interested parties beseech the court that the Ex-parteApplicant pay the interested parties' costs of Kshs. 200,000/=. 18.Parties filed written submissions, which the Court has duly read and considered. Analysis and determination 19.What is essentially sought herein is, first, an order to set aside the stay granted by the Court of Appeal on the 31st of July 2025, allowing the appellants' chamber summons application dated 20th March 2019, in which the Ex-parteApplicants sought leave to file substantive judicial review orders against the decision of the National Land Commission regarding the review of grants and dispositions of public land of the Sofia Area, Karatina Township, delivered on the 21st of January 2019, and that the leave sought should operate as a stay. 20.Secondly, in response to the above-mentioned order, the Ex parte Applicants have sought leave to have their substantive judicial review Notice of Motion application dated 2nd December 2025 deemed duly filed, even though it was filed more than 21 days after the Court's judgment was delivered. Their reason for seeking leave to file the substantive judicial review application out of time is that the Counsel for the Ex-parteApplicants was unaware that the Court of Appeal's judgment had already been rendered and only learned of it after it had been delivered. 21.I will begin with the Ex parte Applicant’s application seeking leave to file their judicial review application out of time. Order 50, Rule 6 of the Civil Procedure Rules, 2010, which provides that:“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed: Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.” 22.Counsel for the Ex parte Applicants relied on the Court of Appeal's decision in Wilson Osolo v John Ojiambo Ochola & another [1996] KECA 217 (KLR), in which the Court established that:“It was a mandatory requirement of Order 53 rule 3(1) of Civil Procedure Rules then (and it is now again so) that the notice of motion must be filed within 21 days of grant of such leave. No such notice of motion having been apparently filed within 21 days of 15th February, 1982, there was no proper application before the Superior Court. This period of 21 days could have been extended by a reasonable period had there been an application under Order 49 of the Civil Procedure Rules.” 23.In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others (Application 16 of 2014) [2014] KESC 12 (KLR) (Civ) (4 July 2014) (Ruling), the Supreme Court established the principles governing the extension of time as follows:“Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay; and whether, in certain cases, like election petitions, public interest should be a consideration for extending time.” 24.The Ex parte Applicants have stated that their Counsel was unaware that the Court of Appeal's judgment had been delivered. They annexed to their application copies of letters dated 24th October 2024 and 19th October 2025, which Counsel wrote to the Deputy Registrar of the Court of Appeal inquiring about the delivery of the said judgment, and Counsel stated that these elicited no response. He stated that Counsel for one of the Respondents, Mark Mwanzia, Advocate, informed him that the judgment had already been delivered, as evidenced by a letter dated 27th November 2025. 25.I note that the period between 27th November 2025, when Counsel admitted to realizing that judgment had been delivered. The substantive application dated 2nd December 2025 is not an inordinately long time, and Counsel acted promptly to file the application once he realized that the Court of Appeal's judgment was in their favor, even though they were out of time. 26.I am therefore of the opinion that the Ex parte applicants’ application dated December 3, 2025, will be allowed in the interest of justice, so that the Ex parte applicants’ case may be heard on the merits and the orders of the Court of Appeal may not be in vain. 27.I will also address the issue raised by the Interested Parties with Counsel for the Ex-parteApplicants swearing an affidavit instead of the Ex-parteApplicants themselves. It is noted that he deposed to matters within his knowledge, specifically letters he wrote to the Deputy Registrar of the Court of Appeal and follow-up on the said Court’s judgment, which is in order. P. Nyamweya JA in the case of Turea Limited t/a Dr. Mattress v Mohamed (Civil Application E030 of 2022) [2022] KECA 1271 (KLR) found that:“On the affidavit filed in support of the application that was sworn by the Applicant’s advocate, under Rule 9 of the Advocates Practice Rules, it is not the mere swearing of an affidavit by an advocate that renders it defective, but the swearing of an affidavit on contentious issues of which he or she has no knowledge of. The said rule has a proviso that expressly states so as follows: “Provided that this rule does not prevent an advocate from giving evidence whether verbally or by declaration or affidavit on formal or non-contentious matter of fact in any matter in which he acts or appears” The affidavit in question deponed to the awareness about the failure to file the Notice of Appeal and the cause of delay, which the advocate specifically states came to his knowledge when he was preparing the memorandum of appeal, and was caused by his clerk. The said advocate also deponed to the arguability of the intended appeal, which are arguments of law and cannot be said to be contentious issues. I therefore decline the invitation to strike out the supporting affidavit for these reasons.” 28.For the reasons above, I am also of the opinion that the Interested Parties’ application dated 28th November 2025, seeking to set aside the stay granted, be dismissed in the interest of justice, subject to their being awarded the costs of defending the Ex parte Applicants’ application dated 3rd December 2025, which sought leave to file the substantive judicial review application out of time, given that the Court of Appeal already awarded the Ex parte Applicants’ costs of the appeal and of this Court in their application for leave and a stay. 29.Orders accordingly. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NYERI ON THIS 1ST DAY OF JULY 2026.E. K. MAKORIJUDGEIn the Presence of:Ms. Ayuma H/B for Gikandi for the Ex Parte ApplicantMr. Ochieng for the 1st Interested PartyMr. Kaburu for the 2nd to 9th Interested PartiesDenis - Court Assistant