https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9240

Sigma Feeds Ltd v Land Registrar, Kajiado & another (Judicial Review E091 of 2026) [2026] KEHC 9240 (KLR) (Judicial Review) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9240 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Judicial Review E091 of 2026 TW Ouya, J June 25, 2026 Between Sigma Feeds Limited Applicant and The Land Registrar, Kajiado Respondent and Robert Mutarakwa Interested Party Judgment 1.The Applicant has moved this honourable court vide an Originating Motion dated 29th March 2026 for judicial review orders of:i.Prohibition restraining the Respondent from proceeding with any boundary determination in respect of the Applicant's property under the said summons.ii.An order of Certiorari to bring before this Honourable Court and quash the Respondent's decision to issue the Boundary Dispute Summons. 2.The Application is supported by grounds on its face as well as the affidavit of Sanket Shah, a director of the Applicant, and depones that the Applicant is the registered propriétor of land known as Title No. Kajiado/Kitengela/20344. 3.It is also deponed that the suit property originates from a larger parcel of land known as Title No. 6285, which was created on or about 13th March 1998. The said mother title was subsequently subdivided into several parcels, including: Title No. Kajiado/Kitengela/8542 on or about 25th September 2003, Kajiado/Kitengela/18502; Kajiado/ Kitengela/19976 on or about 11th August 2004 and following the said subdivisions, a remainder parcel being Title Kajiado/Kitengela/20344 was created; which property he acquired in or about the year 2004, following a lawful transfer. 4.The Applicant deponed that at the time of the said transfer, the boundaries of the suit property were physically identified and pointed out to him on the ground by the vendor and the same were mutually acknowledged. Thereafter, the said boundaries were marked and secured by way of walling, which remains in place to date. 5.The Applicant maintained that he has been in open, peaceful, and uninterrupted occupation thereof, and no dispute has ever arisen in respect of the boundary for a period of approximately twenty-two (22) years until on or about 1 4th March 2026, when the Applicant was served with a Boundary Dispute Summons purportedly issued by the Respondent at the instance of the Interested Party. 6.The Applicant contends that the issuance of the summons is an administrative action within the meaning of the Fair Administrative Actions Act. It is further contended that the issuance of the summons was against the rules of natural justice as the Applicant was not afforded an opportunity to be heard prior to issuance of the summons contrary to Section 4 (2), 4 (3) and 6 of the Fair Administrative Actions Act. 7.It is further argued that the claim by the interested party is time barred due to the lapse of the 12-year limitation period for limitation of actions relating to land. The subject of the summons is therefore bad for inordinate delay. 8.The Applicant expressed his reservations with the summons and sought clarification from the Respondent but the said letter is yet to be responded to by the Respondent in further disregard to the Applicant’s right to fair administrative action. 9.The Applicant also contends that the Interested Party has not demonstrated any lawful basis for invoking the jurisdiction of the Respondent. 10.The Interested Party responded to the Application vide a Replying affidavit sworn by Robert Mutarakwa in April 2026. He disputed the lawful acquisition of land Title No. Kajiado/Kitengela/20344 by the Applicant. He also questions Mr. Shah’s authority to swear the affidavit on behalf of the Applicant on the basis that no such authority has been demonstrated. 11.It was the Respondent’s case that the Applicant’s act of preventing the Respondent from interrogating the title was premature as there existed a long boundary dispute involving Mutaragwa Kiruti Lepaso/8478/16.18 hectares (14338 /14340), Nairuku Ene Mutarakwa and some Mutarakwa on one hand and sigma feeds — 20344/I .41 HA, James Njiru - 20343 - 0.47HA (96440 - 96450) Moss Ngatia Mugo — 19257 — 0.80HA (53857-53871 and Jacinta Waitherero Mungai — 8543 - 081 ( 70016-70023) and the Interested Party. 12.The Interested Party also disputed the Applicant’s ownership of the said property on the basis that neither a transfer nor a land Control Board Consent was annexed to the Application. The Applicant had not demonstrated any evidence to deter the Respondent from exercising its mandate. 13.The Court directed that the Application be canvassed through written submissions. 14.The Applicant submitted that the Respondent's actions were unprocedural and offends the right to fair administrative action as the Applicant was neither allowed to be heard nor given a reason for the administrative action. The Respondent was also faulted for failing to give written reasons for the institution of boundary proceedings against a property for which the Applicant has enjoyed quiet possession for over 22 years. 15.Therefore, the Applicant submitted that the Respondent's decision to issue the Boundary Dispute Summons, and to initiate boundary determination proceedings in the manner complained of, was irrational, unreasonable, and constitutes an abuse of administrative power, thereby warranting the intervention of this Honourable Court. 16.The Interested Party on the other hand submitted that the Court is barred from interfering with an ongoing boundary determination process. Section 18(2) of the Land Registration Act is clear:“The court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section.” 17.The Interested Party submits that the proper channel for seeking redress after the Registrar’s determination, if aggrieved, is to seek review or appeal through the prescribed channels including stating a case under Section 86 of the Land Registration Act. Therefore, the Applicant’s attempt to obtain prohibition and certiorari at this preliminary stage amounts to forum shopping and undermines the statutory dispute resolution mechanism. The process is designed to allow parties to present their grievances, evidence, and survey reports. The Applicant’s rush to Court seeks to short-circuit this very process. 18.Section 18(3) of the LRA provides the framework for boundary disputes:(3)... the Registrar may, in any proceedings concerning the parcel, receive such evidence as to its boundaries and situation as may be necessary...” 19.Reliance was placed on the case of Nyori v Kigen & 2 others (Environment and Land Appeal E013 of 2022) (2023) KEELC 22467, paragraph 14, where the court stated that Section 18(2) of the Land Registration Act makes it clear that the courts lack jurisdiction to entertain boundary disputes until the boundaries have been determined by the Land Registrar. 20.Therefore, where the law has given a legal obligation to a department of Government, it is important for the court to let that department proceed to meet its legal obligations. The Respondent is therefore mandated to deal with the general boundary dispute first before the same is escalated to the court. The Application is therefore barred for failing to exhaust internal remedies. 21.Regarding the Applicants assertion that the summons was wrongfully issued under the repealed Registered Land Act (Cap. 300), the Interested Party relied on Section 108 of the Land Registration Act, 2012 contains transitional and saving provisions that preserve actions and processes initiated under the repealed laws during the transition. It provides:“ 108.Saving and transitional provisions with respect to rules, orders, regulations, directions, notices, forms, notifications or other administrative acts Until the Cabinet Secretary makes the regulations contemplated under section 110, any rules, orders, regulations, directions, notices, forms, notifications or other administrative acts made, given, issued or undertaken before the commencement of this Act under any of the Acts of Parliament repealed by this Act or any other law continue in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring them into conformity with this Act.” 22.Therefore, the Respondent retains inherent administrative power to resolve boundary uncertainties upon application by an interested party. A mere reference to the old Act does not render the entire process a nullity, especially where the Registrar has jurisdiction under the current law. 23.Moreover, the Interested Party submitted that mere issuance of Summons does not violate the right to fair administrative action as alleged by the Applicant as issuance of boundary dispute summons is part of the preliminary processes in claims for determination of boundary disputes. 24.It was therefore the Applicant having failed to demonstrate the prejudice he is likely to suffer by participating in the boundary dispute has failed to meet the threshold for grant of the orders sought. Analysis and determination; 25.Upon perusing the Application, Responses and Submissions by the parties, the main issue for consideration is whether this court has jurisdiction to entertain this application, that is to say, whether the application offends the doctrine of exhaustion. 26.The Applicant’s grievance against the Respondent is twofold: on the one part, it is alleged that the Respondent unprocedurally issued a boundary dispute summons to the Applicant and on the other part, the Respondent failed to adhere to the Applicants request for further information. I will address these two issues separately as they both go into the jurisdiction of this honourable court to entertain this suit. 27.Regarding the issuance of the summons, the Applicant contends that the summons has been issued without any basis as there has been no demonstrable grievance to warrant the intervention of the Respondent. This belief stems from the fact that the Applicant ahs allegedly enjoyed quiet possession of the suit property for 22 years. 28.The procedure for ascertaining a missing boundary or a boundary dispute under sections 18 and 19 of the Land Registration Act is more specifically provided for under the Land Registration (General) Regulations, 20I7 regulations 40 and 4.“(40) 1.An interested person may apply to the Registrar for the ascertaining of a missing boundary or a boundary in dispute under section l8(3) of the Act in Form LRA 23 set out in the sixth schedule. 2.The registrar shall issue a notice in Form LRA 24 set out in the Sixth Schedule to all persons appearing in the register that may be affected or such other persons as the Registrar may deem necessary for the resolution of the dispute if a person has complied with paragraph (1). 3.The Registrar shall notify the oce responsible for the survey of land of the intended hearing of a boundary dispute and require their attendance if a person has complied with paragraph (1). 4.In determining a boundary dispute lodged in accordance with paragraph (1), the Registrar shall be guided by the recommendation of the oce responsible for survey of land. 5.The Registrar shall, after giving all persons appearing for the hearing in accordance with the notifications sent under paragraphs (1) and (2) an opportunity to be heard, make a determination of the dispute and inform the parties accordingly. 6.Any party aggrieved by the decision of the Registrar made under paragraph (5) may, within thirty days of the date of notification, appeal the decision to the Court. 7.Upon expiry of thirty days, the Registrar shall;a.cause to be defined by survey the precise position of the boundaries in question;b.file a plan approved by the authority responsible for survey of land containing the necessary particulars; andc.Make a note in the register that the boundaries have been fixed, and thereupon the plan shall be deemed to define accurately the boundaries of the parcel. 8.A dispute for determination of a boundary and or parcel shall unless in the case of special circumstances, be completed within a period not exceeding six months from the date of ling the application. 41. (1) An interested person may apply to the Registrar for the ascertaining and fixing of boundaries of l9 (1) Act, in Form LRA 23 set in the Sixth Schedule.(2)The noticeissued by the Registrar under section l9(1) of the Act shall be in Form LRA 24 set out in the Sixth Schedule.(3)When making a decision under section l9(1) of the Act, the Registrar shall follow the procedure outlined in Regulation 40.” 29.The issuance of the notice to all persons affected by the land in dispute is a crucial aspect of the determination of a boundary dispute, as it seeks to notify all the parties of the existence of a dispute. That is in my view is, the place of the summons that was issued to the Applicant. 30.However, instead of the Applicant honouring the summons, he elected to move this honourable court to curtail a process that had barely started. 31.Without following the procedures set out in ascertaining and fixing the boundaries, the court is barred under section 18 (2) of the Land Registration Act from entertaining any action or other proceedings relating to a dispute as to the boundaries of the suit parcels of land. Indeed, under regulation 40(6) of the Land Registration (General) Regulations, 20I7, the court’s jurisdiction with regard to boundary disputes is appellate and the court is of the view that the said jurisdiction cannot be invoked in the first instance by Judicial review as done by the Applicant in the instant case. 32.The Applicant therefore ought to have submitted to the jurisdiction of the Respondent before seeking the intervention of this honorable court. 33.Regarding the second aspect on the failure by the Respondent to avail information to the Applicant following his request for information. While Section 4 of the Access to information Act provides that a citizen has the right to access information held by the State or any other person, Section 14 of the said Act vests the jurisdiction of handling complaints relating to access to information on the Commission for Administrative Justice. 34.Therefore, the proper forum for first advancing grievances on access to information is the Commission on Administrative Justice and not the Judicial Review Court, as done by the Applicant in the instant case. 35.A perusal of the Originating Motion does not demonstrate that the Applicant made any attempt to seek the intervention of the Commission on Administrative Justice before seeking the intervention of this honorable court. 36.The doctrine of exhaustion, requires that before challenging the validity of an administrative action, a party ought to explore and exhaust all administrative remedies available. 37.In Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 others [2015] eKLR, the Court of Appeal held that,“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews ...The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts. ...this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.” 38.Similarly, in Republic v National Environmental Management Authority [2011] eKLR, the court held that:“The principle running through these cases is where there was an alternative remedy and especially where Parliament had provided a statutory appeal process, it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the Court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it….” 39.However, it is not in all circumstances that a party can pursue exhaustion doctrine to oust the jurisdiction of the court. It is only applied by courts where it has ascertained that the other alternative avenues are available, affordable, effective and suffcient in dealing with a dispute. In Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR, Mativo J. captured the foregoing in the following terms:“The exhaustion doctrine is only applicable where the alternative forum is accessible, affordable, timely and effective. A remedy is considered available if the Petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success and is found sufficient if it is capable of redressing the complaint [in its totality] ...a remedy is considered available only if the applicant can make use of it in the circumstances of his case.” 40.In the instant case, the Applicant has not demonstrated any difficulty that would impair him from exhausting the available statutory remedies before seeking the intervention of this honourable court. The Applicant has not demonstrated why this court should interfere with the Respondent in the discharge of his mandate of boundary dispute determination. 41.In the circumstances, I find this application to be without merit and the same is dismissed with costs to the interested party. 42.Final Orders: Application dismissed. Costs to the Interested Party. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 25TH DAY OF JUNE, 2026.HON. T. W. OUYA, OGWJUDGEIn the presence of:Ms. Njuguna for Mr. Mwaniki for Interested PartyAmimo for Ligunya for ApplicantNyabuto – Court Assistant