https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3916

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KWALE** **ELC JUDICIAL REVIEW NO. E013 OF 2025** **IN THE MATTER OF: ARTICLE 47 OF THE CONSTITUTION OF KENYA 2010** **AND** **IN THE MATTER OF: SECTIONS 7,8, 9,11 OF THE FAIR ADMINISTRATIVE ACTION ACT NO 4 OF 2015** **AND** **IN THE MATTERE OF: UNLAWFUL, UNREASONABLE, AND PROCEDURALLY UNFAIR ADMINISTRATIVE ACTION BY THE LAND REGISTRAR KWALE COUNTY RELATING TO LAND RECORDS WITHIN DIANI SETTLEMENT SCHEME** **JUMA SALIM ZARRY ……………………. EX - PARTE APPLICANT** * **VERSUS -** **THE LAND REGISTRAR, KWALE………………1ST RESPONDENT** **THE HON ATTORNEY GENERAL………………2ND RESPONDENT** **JUDGEMENT** 1. **Preliminaries** 2. The Judgement of this Honourable Court emanates from a civil suit instituted by *Juma Salim Zarry,* the Ex – Parte Applicant. Initially, the Ex - Parte Applicant filed the Notice of Motion application dated 11th December, 2025 seeking leave to file suit. The suit was filed pursuant to the provisions of Articles 22, 23, 35, 40, 47, 48 & 50 of the Constitution; Sections 7, 8 and 9 of the Fair Administrative Action Act; and Section 13 (7) of the Environment and Land Court Act, No 19 of 2011. 3. It was against the 1st and 2nd Respondents herein. Despite of the service and as evidenced from the contents of an Affidavit of Service, there’re was no responses filed. 4. **The Ex - Parte Applicants Case** 5. The suit was further supported by the Supporting Affidavit of *Juma Salim Zarry* the Ex - Parte Applicant sworn on 11th December, 2025 and who averred as follows that:- 6. His late father, SALIM ALI MWAMZARI, was the original and lawful allottee of Plot No. 378 - Diani Settlement Scheme (Hereinafter referred to as “The Suit Land”). 7. They had been in continuous occupation and development of the said parcel since allotment. 8. He visited the Kwale Land Registry on several occasions and paid the statutory fees for issuance of official searches, as shown by receipts and other related bundle of documents that he annexed to the affidavit. 9. Despite payment, the Respondents had refused and neglected to issue the Ex - Parte Applicant with the official search and the green card for the suit land - to the parcel LR. No. Kwale/ Diani S.S/378. 10. Instead, the Respondent informed him that he must first produce a copy of "the four pages of a Certificate of Title" before any search or green card can be issued. 11. This requirement was unknown to the Land Registration Act, illegal, irrational, and impossible to comply with because the Ex - Parte Applicant’s family had never been issued with any Certificate of Title. 12. Due to the Respondent's actions, the Ex - Parte Applicant was unable to confirm the true status of the land and suspect illegal dealings or possible fraudulent registration by unknown persons. 13. The Ex - Parte Applicant was therefore unable to institute any protective or substantive suit without the green card and searches, as the Respondent has unlawfully blocked access to the necessary land records. 14. The Respondent's conduct violated his rights under provision of Articles 35, 40, 47, and 48 of the Constitution and Sections 4, 5, 6, and 7 of the Fair Administrative Action Act. 15. Unless this Honourable Court intervened, he stood to suffer irreparable prejudice, and illegal dealings may be perpetrated on the land. 16. **The case by the Respondents** 17. As already indicated above, the judicial review application was undefended. This was despite service of the pleadings on the Respondents as per the affidavit of service dated 18th February, 2026 sworn by Bongo Matano Mwatsanuo a licenced court process server whose contents the court has duly taken note of. 18. **Submissions** 19. On 26th February, 2026 the parties were granted time to file their written submissions and the Honourable Court reserved the Judgment for 17th June, 2026. However, at the time of preparing this judgement none of the parties had complied with the said directions. The court will nevertheless proceed to render its verdict on its merit. 20. **Analysis and determination** 21. I have carefully assessment the Judicial review application brought to this Honourable Court by the Ex – Parte Applicant, the relevant provisions of the Constitution of Kenya, 2010 and the statutes. 22. For the Honourable Court to reach an informed, reasonable, fair and Equitable decision, it has crystalized the subject matter into four (4) salient issues for analysis. These are as follows: - 23. ***What is the scope, nature and meaning of the concept of Judicial Review?*** 24. ***Whether the Judicial review suit instituted by the Ex – Parte Applicant meets the threshold of such a suit and has merit whatsoever?*** 25. ***Whether the Exparte Applicant is entitled to the prerogative reliefs sought.*** 26. ***Who will bear the costs of the suit?*** ***ISSUE No. a). What is the scope, nature and meaning of the concept of Judicial Review?*** 1. Under this Sub – title, the Honourable Court will undertake to discuss the concept of Judicial Review being the main substratum of this matter herein. It is noteworthy that the Ex - Parte Applicant has made the instant application pursuant to the provisions of the Constitution 2010 and the Fair Administrative Actions Act. 2. The provisions of Article 10 of the Constitution of Kenya, 2010 are at the helm of the prerequisites of state and public officers in carrying out their duties. The same can be termed as the compass for the country in ensuring that public officers serve their mandate diligently and as guided by the constitution in upholding values like integrity and principles of social justice and human rights. 3. The provisions of Article 10 are binding on any public officer as they dictate the core values that guide not only the nation but public and state officers in the dispensation of their duties. Perhaps, it is on this backdrop that Counsel for the Applicant herein has filed the instant suit on judicial review. 4. Nonetheless, it is important to appreciate the meaning of Judicial Review. The concept is based on the fact that administrative excesses must be checked through Judicial intervention. Administrative law relates to decision of offices or organs of Central Government or Public Authorities which may affect the rights or liberties of the citizens and which are enforceable in or organized by the courts of law. Therefore, judicial review is an integral component of administration law. 5. The Black’s Law Dictionary, 9th Edition defines **“Judicial Review”** as: ***“A court’s power to review the actions of other branches or levels of government; esp., the court’s power to invalidate legislative and executive actions as being unconstitutional. 2. The constitutional doctrine providing for this power. 3. A court’s review of a lower courts or an administrative body’s factual or legal findings”.*** **Mark Ryan**, in his book, **‘Unlocking Constitutional and Administrative Law’**, (3rd Routledge/Taylor & Francis Group, 2014) on page 506 defines Judicial Review as: ***“The constitutionally justified as a legal control on the misuse of public law“The constitutionally justified as a legal control on the misuse of public law powers, including both statutory and common law prerogative powers.”*** 1. Judicial review establishes the court's authority to hold the government as well as the subordinate courts and bodies exercising quasi-judicial authority accountable to the law. **Michael Fordham** in his book “***Judicial Review Handbook, 6th Edition, Hart Publishing,******2012”****,* defines judicial review as:- ***“…. The court’s way of enforcing the rule of law: ensuring that public authorities ‟functions are undertaken according to law and that they are accountable to law. Ensuring, in other words that public bodies are not ‘above the law’”*** 1. Before the promulgation of the Constitution 2010, judicial review was governed by the principles of common law largely borrowed from the United Kingdom. The jurisdiction to entertain applications for judicial review remedies was vested in the High Court. The basis of judicial review in Kenya was derived from the Law Reform Act (Cap. 26) Laws of Kenya and Order 53 of the Civil Procedure Rules, 2010 as better developed by case law on the area. Sections 8 and 9 of the Law Reform Act provided the substantive basis while Order 53 provided the procedural basis. The remedies in judicial review were three Prerogative Writs, namely; “***Certiorari”, “Prohibition”*** and ***“Mandamus”.*** The grounds upon which one could base an application for judicial review were under the heads of illegality, irrationality, procedural impropriety and proportionality. 2. The law in this regard was fairly settled as the High Court in the case of:- “***Keroche Industries Limited – Versus - Kenya Revenue Authority & 5 Others, Misc. Civ Appli 743 of 2006; (2007) eKLR”*** had set out what a party needed to demonstrate in order to prove illegality, irrationality, procedural impropriety and proportionality. The Court of Appeal in the case of “***Commissioner of Lands – Versus - Kunste Hotel Limited, Civil Appeal No. 234 of 1995; [1997] eKLR***” had settled that judicial review was only concerned with the decision-making process. In doing so, the Court was paying homage to the words of Lord Hailsham of St. Marylebone in “***Chief Constable of the North Wales Police – Versus - Evans (1982) 1WLR 1155”*** as follows:- ***“The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized by law to decide for itself a conclusion which is correct in the eyes of the Court.”*** 1. After the Promulgation of the Kenyan Constitution 2010 Judicial Review was no longer a common law prerogative, but was now entrenched in the Constitution to safeguard the constitutional principles, values and purposes. In particular, the provision of Article 23 (3)(f) provides for the orders of judicial review as one of the available remedies concerning the enforcement of the bill of rights. The provision of Article 47(1) of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 165(6) grants the High Court supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. In the year 2015, Parliament in adherence to Article 47 of the Constitution enacted the Fair Administrative Action Act, No. 4 of 2014, Laws of Kenya (FAA Act). 2. Also instructive to the application of judicial review, is that Article 10 of the Constitution sets out the national values and principles of governance, key among them being the rule of law. These values and principles bind all State organs, State officers, public officers and all persons whenever any of them applies or interprets this Constitution; enacts, applies or interprets any law; or makes or implements public policy decisions. 3. In the case of:- “[***Dande & 3 others – Versus - Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) (16th June, 2023) (Judgment)***](https://new.kenyalaw.org/akn/ke/judgment/kesc/2023/40/eng%402023-06-16)***”*** the Supreme Court provided as follows:- ***“[76] We note that judicial review was introduced to Kenya from England in 1956 through Sections 8 and 9 of the Law Reform Act, Cap 26. The jurisdiction to hear and determine judicial review was then vested in the High Court of Kenya. Under this system, the High Court could issue orders of mandamus, prohibition, and certiorari. The grounds for the issuance of such orders were borrowed from common law.*** ***[77] Prior to the promulgation of the Constitution in 2010 there were two legal foundations for the exercise of the judicial review jurisdiction by the Kenyan Courts found in Sections 8 and 9 of the Law Reform Act Cap. 26, which constituted the substantive basis for judicial review of administrative actions on the one hand, and, Order 53 of the Civil Procedure Rules which was the procedural basis of judicial review of administrative actions, on the other hand.*** ***[78] However, the entrenchment of judicial review under the Constitution of Kenya 2010 elevated it to a substantive and justiciable right under the Constitution. Accordingly, judicial review is no longer a strict administrative law remedy but also a constitutional fundamental right enshrined in the Constitution. Thus, Article 47 provides that “every person has a right to an administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.*** ***[79] Furthermore, Section 7 of the Fair Administrative Actions Act provides that:*** ***(1) Any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision to–*** ***(a) a court in accordance with section 8; or*** ***(b) a tribunal in exercise of its jurisdiction conferred in that regard under any written law.*** ***[80] Fundamentally also, Article 23 (3) of the Constitution provides that:*** ***(3) In any proceedings brought under Article 2, a court may grant appropriate relief, including-*** ***(a) a declaration of rights;*** ***(b) an injunction;*** ***(c) a conservatory order;*** ***(d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;*** ***(e) an order for compensation; and*** ***(f) an order of judicial review.*** 1. The role of the Court in Judicial Review is supervisory. Judicial Review is the review by a Judge of the High Court of a decision; proposed decision; or refusal to exercise a power of decision to determine whether that decision or action is unauthorized or invalid. It is referred to as supervisory jurisdiction - reflecting the role of the Courts to supervise the exercise of power by those who hold it to ensure that it has been lawfully exercised. In considering the said issues, it is imperative at the outset to delineate the parameters of this Court’s powers in judicial review. 2. Judicial Review currently is concerned with the manner in which a decision is made and the merits or otherwise of the ultimate decision. As long as the processes followed by the decision-maker are proper, without any biasness, capriciousness, fairness, not acted ultra vires, bad faith, favour and the decision is within the confines of the law, a Court will not interfere. Likewise, if the decision is not proper the court will grant the appropriate remedy. As was held in the case of “***Republic – Versus - Attorney General & 4 others Ex - Parte Diamond Hashim Lalji and Ahmed Hasham Lalji [2014] eKLR”***:- ***“Judicial review applications do not deal with the merits of the case but only with the process. In other words judicial review only determines whether the decision makers 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. It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect urges the Court to determine the merits of two or more different versions presented by the parties the Court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved. Therefore judicial review proceedings are not the proper forum in which the innocence or otherwise of the applicant is to be determined and a party ought not to institute judicial review proceedings with a view to having the Court determine his innocence or otherwise. To do so in my view amounts to abuse of the judicial process. The Court in judicial review proceedings is mainly concerned with the question of fairness to the applicant.......”*** 1. The broad grounds for the exercise of judicial review jurisdiction were stated in the case of ***Pastoli – Versus - Kabale District Local Government Council (Supra)***at pages 303 to 304 thus: ***“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: See Council of Civil Service Union – Versus - Minister for the Civil Service [1985] AC 2; and also Francis Bahikirwe Muntu and others – Versus - Kyambogo University, High Court, Kampala, miscellaneous application number 643 of 2005 (UR).*** ***Illegality is when the decision making authority commits an error of law in the process of taking the decision 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: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”.*** ***Procedural impropriety is when there is 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. (Al-Mehdawi – Versus - Secretary of State for the Home Department [1990] AC 876).”*** 1. In addition, the parameters of judicial review were addressed by the Court of Appeal in the case of ***Municipal Council of Mombasa – Versus - Republic & Umoja Consultants Limited,******Nairobi Civil Appeal No. 185 of 2001, [2002] eKLR*** as follows: ***“The court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who made the decision have the power, i.e. the jurisdiction to make it? Were the persons affected by the decision heard before it was made? In making the decision, did the decision - maker take into account relevant matters or did he take into account irrelevant matters? These are the kind of questions a court hearing a matter by way of judicial review is concerned with, and such court is not entitled to act as a court of appeal over the decider; acting as an appeal court over the decider 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 – and that, as we have said, is not the province of judicial review.”*** 1. In the case of “***the Dande Case (Supra)”*** the Supreme Court highlighted that:- ***“[85] It is clear from the above decisions that when a party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party files a suit under the provisions of Order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the Court can only limit itself to the process and manner in which the decision complained of was reached or action taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se.*** 1. Broadly, in order to succeed in a Judicial Review proceeding, the applicant will need to show either:- ***“a.the person or body is under a legal duty to act or make a decision in certain way and is unlawfully refusing or failing to do so; or*** ***b. a decision or action that has been taken is 'beyond the powers’ (in latin, ‘ultra vires’) of the person or body responsible for it.”*** 1. In an application for Judicial review the Applicant must be a person with a sufficient interest – (***Locus Standi)*** and who commences proceedings promptly. To support this legal concept on judicial review, I have made indepth references to several literature review and court decisions – “***Pharmaceutical manufacturers Association of South Africa in re- exparte president of Republic of South Africa*** - 2000 S.A. 674 CC at 33 ***Republic – Versus - Speaker of the Senate and Another Ex - Parte Afrison Export Import Limited 2018 eKLR Republic –Versus- Stanley Mambo Amuti (2018) eKLR.”; the Kenya National Examination Council – Versus - Republic (Ex - Parte - Geoffrey Gathenji & Another Nairobi Civil Appeal No. 266 of 1996.*** 2. The Court does not issue orders in vain even where it has jurisdiction to issue the prayed orders and would refuse to grant judicial review remedy when it is not necessary, or where issues have become academic exercise; or serves no useful or practical significance. Since the court exercises a discretionary jurisdiction in granting prerogative order it can withhold the gravity of the order where among other reasons there has been delay and where a public body has done all that it can be expected to do to fulfil its duty or where the remedy is not necessary or where its path is strewn with blockage or where it would cause administrative chaos and public inconvenience or where the object for which application is made has already been realized. 3. An administrative or quasi-judicial decision can only be challenged for its ***illegality, irrationality****and****procedural impropriety.***An administrative decision is flawed if it is illegal. A decision is illegal if it: - ***(a) contravenes or exceeds the terms of the power which authorizes the making of the decision;*** ***(b) pursues an objective other than that for which the power to make the decision was conferred;*** ***(c) is not authorized by any power;*** ***(d) contravenes or fails to implement a public duty.*** 1. As stated above, this court has powers under the provision of Sections 8 and 9 of the Law Reform Act, Cap. 26 of the Laws of Kenya to issue prerogative writ of Certiorari, which brings into this court to quash a decision which is ultra vires. A writ of prohibition intended to forbid or prevent an action by a public officer from taking place is granted alongside Certiorari, since it’s a similar remedy but more prospective than retrospective. While certiorari looks at the past, prohibition looks at the future. The provision of Section 8 of the Law Reform Act, also provides for a writ of prohibition which primarily prohibits a tribunals, judicial bodies or subordinate courts from doing or taking an action in excess of its jurisdiction. In the book of “**Administrative Law”, Sir. W. Wade and C. Forsyth, Page 605 noted that:-** ***“I can see no difference in principle between Certiorari and Prohibition, except that the latter may be invoked at an earlier stage. If the proceedings establish that the body complained of is exceeding its jurisdiction by entertaining matters which would result in its final decision being subject to being brought up and quashed on certiorari. I think that prohibition will lie to restrain it from so exceeding its jurisdiction.*** ***Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had power to exercise as a consequence of the wrongful decision, the exercise of that power could be restrained by prohibition. Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself.”*** 1. The legal efficacy and scope of the statutory order of Mandamus, Prohibition and Certiorari are remedies granted by High Court to persons inferred by the exercise of administrative of judicial powers. These prerogative orders are only available against public bodies. Their origins lie in the expansion of common law in England and the jurisdiction of the Court of King Bench to acquire Superintendence over the observance of law by officials. These orders are predicated upon the fact that without law, society cannot function with fundamental values such as social order, social justice and personal freedom. Today public authorities determine an overwhelming extent how much of these values are enjoyed. Their decision affect vast numbers of people collectively and individually “***Ipso Facto”*** unlawfully decision, must be available to Judicial Scrutiny hence judicial Review. The social need for how and the protection of legality is violated when a public official exceeds his/her authority or does not use his/her power in the prescribed manner. **The writ of Certiorari.** 1. The prerogative writs of ***“Certiorari”*** derives from the Latin word ***“Certiorari”*** which means to be certified, informed, appraised or shown. Both in its embryonic days and today, the order, initially and prerogative writ was inferior courts and required the proceedings of that to be transferred to the High Court and examined for validity. It meant the decision would be quashed. From the Provisions of Order 53 of the Civil Procedure Rules the Applicant ought to move court within a period of six (6) months from the time the order, decree, judgment, conviction or other proceeding was made. Under the provision of Order 53 Rule 7 of Civil Procedure Rules, which provides:- 2. **In the case of an application for an order of certiorari to remove any proceedings for the purpose of their being quashed, the applicant shall not question the validity of any order, warrant, commitment, conviction, inquisition or record, unless before the hearing of the motion he has lodged a copy thereof verified by affidavit with the registrar, or accounts for his failure to do so to the satisfaction of the High Court.** 3. **Where an order of certiorari is made in any such case as aforesaid, the order shall direct that the proceedings shall be quashed forthwith on their removal into the High Court.** 4. This provision, requires that any party seeking an order of Certiorari must annex to his application a copy of the order or decision he seeks to challenge or if does not, he must give to court a satisfactory reason for that failure. Order 53 Rule 7 is a precondition to seeking an order of Certiorari and failure to comply renders the entire application incompetent since the court is not in a position to determine whether there in fact existed an order capable of being quashed. The rationale behind it is to enable court satisfy itself of the existence of the orders or decision their contents and whether the application was filed in time. **The Writ of Prohibition** 1. The Order of ***“Prohibition”*** issues where there are assumption of unlawful jurisdiction or excess of jurisdiction. It’s an order from the High Court directed to an inferior tribunal or body. Its functions is to prohibit and/or forbids encroachment into jurisdiction and further to prevent the implementation of orders issued when there is lack of jurisdiction. 2. In a nutshell Judicial Review is the means by which High Court judges scrutinize public law functions intervening as a matter of discretion to quash, prevent, require and/or classify not because they disagree with the judgment but so as to right a recognizable public law wrong. This public law wrong could be unlawfulness, unreasonableness or irrationality, unfair hearing, ultra vires bad faith, unfairness, made or arrived at out of excess powers (ultra vires) biasness, capriciousness or un Judicially. 3. Having exhaustively set out the legal framework governing Judicial Review and the nature and scope of the prerogative writs of Certiorari and Prohibition, this Honourable Court now turns to the application of the said principles to the facts and circumstances of the present case and whether the same can be issued. 4. The court will endeavour to highlight the relevant provisions with regards to judicial review. The provisions of Order 53 of the Civil Procedure Rules form the backbone for the procedure for seeking review. It states as follow: **1.No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.** **2.An application for such leave shall be made ex parte to a judge in chambers and accompanied by —** **(a)a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought; and** **(b)affidavits verifying the facts and averment that there is no other cause pending, and that there have been no previous proceedings in any court between the applicant and the respondent, over the same subject matter and that the cause of action relates to the applicants named in the application.** 1. The provision of Article 47 of the Constitution which provides for fair administrative action, it states: - **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.** **3) Parliament shall enact legislation to give effect to the rights in clause (1) and the legislation shall: - a) Provide for review of administrative action by a Court or, if appropriate, an independent and impartial tribunal;** 1. Further Section 4(1) of the Fair Administrative Action Act No.4 of 2015 provides that: **“Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.** 1. **Section 4(3) of the Fair Administrative Action Act provides that:** **“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— 4** **a) prior and adequate notice of the nature and reasons for the proposed administrative action;** **b) an opportunity to be heard and to make representations in that regard;** **c) notice of a right to a review or internal appeal against an administrative decision, where applicable; d) a statement of reasons pursuant to section 6;** **e) notice of the right to legal representation, where applicable;** **f) notice of the right to cross-examine or where applicable; or** **g) Information, materials and evidence to be relied upon in making the decision or taking the administrative action.** 1. In the instant application, the Exparte Applicant is seeking for the orders of mandamus and certiorari. The principles that guide the Court when dealing with an application for Judicial Review – the prerogative writs of “Mandamus” was stated in the Court of Appeal case of ***“Commission on Administrative Justice – Versus - Kenya Vision 2030 Delivery Board & 2 others [2019] eKLR”.*** Wherein the court stated as follows:- “As observed by the Judge and correctly so in our view, the principle that guides the High Court when dealing with the scope and efficacy of an order of mandamus was crystalized by the Court in the case of:- *“****Kenya National Examination Council – Versus - Republic Ex - Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR”***namely: “The order of mandamus is of most extensive remedial nature and is in the form of a command issuing from the High Court of Justice directed to any person, corporation or inferior tribunal requiring him or them to do some particular thing therein specified which appertains to his or their office and is of the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue to the end that justice may be done, in all cases where there is a specific legal right, and it may issue in cases where although there is an alternative remedy, yet the mode of redress is not convenient, beneficial and effectual.” 2. It is trite law that **“Mandamus”** is an equitable remedy that serves to compel a public authority to perform its public legal duty and it is a remedy that controls procedural delays. The test for mandamus is set out in ***“Apotex Inc. – Versus - Canada Attorney General”,*** and, was also discussed in the case of:- ***“Dragan –Versus- Canada (Minister of Citizenship and Immigration)”.*** The eight (8) factors that must be present for the Prerogative writ of “Mandamus” to issue are: - 3. There must be a public legal duty to act; 4. The duty must be owed to the Applicants; 5. There must be a clear right to the performance of that duty, meaning that; a. The Applicants have satisfied all conditions precedent; and b. There must have been; 1. A prior demand for performance; 2. A reasonable time to comply with the demand; 3. An express refusal, or an implied refusal through unreasonable delay; 4. No other adequate remedy is available to the Applicants; 5. The order sought must be of some practical value or effect; 6. There is no equitable bar to the relief sought; 7. On a balance of convenience, mandamus should lie. 8. The nature and scope of the remedy of certiorari was stated in the case of:- “***Captain Geoffrey Kujoga Murungi – Versus - Attorney General, Misc. App No. 293 of 1993”*** was as follows: ***"Certiorari deals with decisions already made – so that when issued an order brings up into this Court a decision of an inferior court, tribunal or of a public authority to be quashed. Such an order [certiorari] can on1y be issued where the court considers that the decision under attack was reached without or in excess of jurisdiction or in breach of the rules of natural justice; or contrary to law.”*** ***ISSUE No. b.). Whether the Judicial review suit instituted by the Ex – Parte Applicant meets the threshold of such a suit and has merit whatsoever?*** 1. Under this Sub – heading, the Honourable Court will deliberate on the merits of the Judicial review case instituted by the Ex – Parte Applicant under the already set out provisions of the Law. But before that, the Court will extrapolate on the brief facts of the case for ease of reference. 2. It is the Ex - Parte Applicant’s case that he applied to the land registrar Kwale for issuance of land records in relation to the parcel Kwale/ Diani S.S/378 the suit property herein. That despite making full payment of all the statutory fees and the administrative requirements necessary, the 1st Respondent has to date refused to issue the land records and has infact sought that he first be handed to the full four paged land title over the suit property which the Ex - Parte Applicant stated was not in his possession. 3. The Ex - Parte Applicant states that the 1st Respondent being a public officer is simply abusing his powers by refusing to carry out his mandate as the custodian of the said records and the said refusal has no legal basis as the documents are public records. 4. The scope of Judicial Review was well articulated in the case of:- *“****Municipal Council of Mombasa – Versus - Republic & Umoja Consultants Ltd. Civil Appeal No.185 of 2001”***where the Court of Appeal stated: ***-“ Judicial review is concerned with the decision making process, not with the merits of the decision: the court would concern itself with such issues as to whether the decision makers 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 circumstances under which judicial Review orders can be issued were further set out in the Ugandan case of “***Pastoli – Versus - Kabole District Local Government Canal (Supra)”*,** where the court held:- ***“in order to succeed in an application for judicial review, the Applicant has to show that the decision or the act complained of is tainted with illegality, irrationality and procedural impropriety.”*** Therefore, the Exparte Applicant herein has to establish the above parameters for him to succeed in this Judicial Review 1. I wish to first point out that the Exparte Applicant complied with the procedure outlined in Order 53 of the Civil Procedure Rules in seeking leave before instituting judicial review proceedings as has been re-affirmed in a number of authorities including the case of:- “***Republic Versus County Council of Kwale & Another Ex - Parte Kondo & 57 others, Mombasa HCMCA No. 384 of 1996”,*** as cited in the case of:- “***Republic - Versus - Anti-Corruption Commission & Another; Mike Mbuvi Sonko & another (Interested Parties) Ex parte Paul Ndonye Musyimi (2020) eKLR”****.* 2. From the Ex - Parte Applicants case, what can be deduced is that the said party claims that together with his family, they have been in use and occupation of the suit property since time immemorial. That they however have never been able to procure registration of the same and are apprehensive that the land might be registered under someone else without their knowledge and the same might be disposed off without their prior knowledge. This informs the need to have the registration of the property confirmed. 3. The 1st Respondent thus failed to carry out his duties in availing the required information to the Applicant. The Applicant stated that he did comply with the requisite requirement administratively that is filing out the necessary form RL 26 making an inquiry on the status of a registered parcel, paying the stipulated fees and availing the filled form to the Kwale lands office. 4. The failure to get the information required makes basis for institution of the suit before court as the same seeks that the Land Registrar is ordered by the court to carry out his duties as a public officer. The suit thus meets the threshold set for what entails a judicial review application. ***ISSUE No. c). Whether the Ex - Parte Applicant is entitled to the prerogative reliefs sought*** 1. Based on the pleadings and the supporting documents herein, this court opines that a case has been made for grant of the orders sought. From the evidence on record, it is clear that the 1st Respondent has simply refused to carry out his duties. The 1st Respondent, as a State officer, is bound by the provision of Articles 73 and 232 of the Constitution, which demand accountability, responsiveness, and high standards of professional ethics in public service. The conduct exhibited herein falls short of those constitutional imperatives. 2. This Court aligns itself with the holding in the case of: - ***“Republic – Versus - District Land Registrar, Kajiado & Another Ex - Parte Casca Traders Limited [2018] eKLR”*** that once statutory conditions are met, a Registrar cannot frustrate a proprietor through administrative inertia or unreasonable demands. 3. I however need to point out that the court will confine itself to the issues of information concerning registration of the suit parcel as the same is the gist of the judicial review application herein. The court is thus hesitant in granting any conservatory orders at the moment as issues of ownership and use of the property cannot be delved into under a judicial review application. ***ISSUE No. d). Who will bear the costs of the suit?*** 1. Under Section 27 of the Civil Procedure Act, the costs of and incidental to a suit is at the discretion of the court and as a general rule, costs follow the event. In Halsbury’s Laws of England, 4th Edition (Re-issue), [2010] Vol. 10, para 16 the authors have stated as follows: **“The Court has discretion as to whether costs are payable by one party to another, the amount of those costs, and when they are to be paid. Where costs are in the discretion of the Court, a party has no right to costs unless and until the Court awards them to him and the Court has an absolute and unfettered discretion to award or not to award them. This discretion must be exercised judicially; it must not be exercised arbitrarily but in accordance with reason and justice”.** 1. The Ex - Parte Applicant has succeeded in his claim against the Respondents. No reason has been advanced why the Exparte Applicant should be denied his costs of the suit. The Exparte Applicant shall have the costs of the suit to be paid by the Respondents jointly and severally. 2. **Conclusion & Findings** 3. Ultimately, having carefully and exhaustively analysed the framed issues hereinabove, this Honourable Court is satisfied, on a balance of probabilities and guided by the principles of legality, reasonableness, and procedural fairness, that the Ex - Parte Applicant has proved his case. 4. Therefore, the Court finds that the 1st Respondent, being a public officer exercising statutory authority under the Land Registration Act, No. 3 of 2012, failed and/or refused to perform a clear statutory duty imposed upon him under the said Act, notwithstanding full compliance by the ExParte Applicant with all the prescribed legal requirements. 5. Consequently, the Honourable Court finds merit in the Notice of Motion application dated 11th December, 2025 be and is hereby allowed in the following terms: a). **THAT Judgment be and is hereby entered in favour of the Ex - Parte Applicant under the following terms and conditions:** 1. **An Order of Mandamus is hereby issued compelling the Respondent to forthwith issue to the Applicant the official search, green card, and all registry records relating to Plot No. 378- Diani Settlement Scheme (DSS).** 2. **An Order of Certiorari is hereby issued removing into this Honourable Court for purposes of quashing the Respondent's illegal administrative requirement that the Applicant must first produce "the four pages of a Certificate of Title" before an official search or registry extract can be issued in respect of Plot 378 DSS.** 3. **A Declaration is hereby made that the Respondent's refusal and/or neglect to issue the Applicant with the said land records is unlawful, unreasonable, irrational, procedurally unfair, and in violation of Articles 35, 40, 47 and 48 of the Constitution and Sections 4-7 of the Fair Administrative Action Act.** 4. **THAT the costs of this Judicial Review suit be and are hereby awarded to the Ex - Parte Applicant, to be borne by the 1st & 2nd Respondents jointly and severally.** **IT IS ORDERED ACCORDINGLY.** **JUDGEMENT DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS………17TH ……… DAY OF ………JUNE …….2026** **………………………………** **HON. MR. JUSTICE L.L NAIKUNI,** **ENVIRONMENT & LAND COURT** **AT** **KWALE.** **Judgement delivered in the presence of: -** 1. Mr. Daniel Disii, the Court Assistant. 2. Mr. Lusamba Advocate holding brief for Mr. Mbwiza Advocate for the Ex – Parte Applicant. 3. No appearance for the 1st & 2nd Respondents.