Mukembo (On Behalf of 21 others) v Attorney General & another; Nthakanio (Deceased) Represented by Albert Njeru Gachoni & 2 others (Interested Parties); Nyaga & 3 others (Proposed Interested Parties) (Environment and Land Judicial Review Miscellaneous Application 3 of 2014) [2025] KEELC 3911 (KLR)
The bottom line
#Once a Kenyan court delivers judgment in a judicial review case, its hands are tied — it cannot reopen the matter, no matter how compelling the new applications are.
What this practically means
#Executive summary
#Key legal issues
#Whether the court is functus officio in a concluded judicial review matter
Yes; upon delivery of judgment on 9/6/2016 the court became functus officio and could not entertain further applications
Judicial review operates under a special procedural regime under Article 47 of the Constitution, the Fair Administrative Actions Act, the Law Reform Act and Order 53 of the Civil Procedure Rules. The post-judgment applications were brought under provisions of the Civil Procedure Rules which do not apply to judicial review proceedings, which are sui generis. Having delivered judgment, the court had exhausted its jurisdiction and the matter was concluded.
Whether the preliminary objection raised a pure point of law
Yes; functus officio and the sui generis nature of judicial review are pure points of law
The court reaffirmed the Mukisa Biscuit test that a preliminary objection must rest on assumed pleaded facts and not require ascertainment of facts or exercise of discretion. The grounds that judicial review is sui generis and that the court became functus officio after judgment are pure points of law capable of disposing of the applications without evidence.
Legal principles established
#- Judicial review proceedings are sui generis and exclusively governed by Order 53 of the Civil Procedure Rules; other provisions of the Civil Procedure Act and Rules are inapplicable
- A court becomes functus officio upon delivering judgment in judicial review proceedings and cannot entertain further applications except to perfect the judgment
- A preliminary objection must raise a pure point of law on assumed facts, without need to ascertain facts or exercise discretion
Court orders
#- 1.The applications dated 30/9/2020, 30/4/2021, 19/4/2021, 13/1/2023 and 20/7/2023 are struck out for being irregularly filed in a concluded judicial review matter
- 2.The preliminary objection is upheld; the matter is finalised and there is nothing more to be done
- Jurisdiction invoked
- Original judicial review jurisdiction under Order 53 of the Civil Procedure Rules, Article 47 of the Constitution, the Fair Administrative Actions Act and the Law Reform Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mukembo (On Behalf of 21 others) v Attorney General & another; Nthakanio (Deceased) Represented by Albert Njeru Gachoni & 2 others (Interested Parties); Nyaga & 3 others (Proposed Interested Parties) (Environment and Land Judicial Review Miscellaneous Application 3 of 2014) [2025] KEELC 3911 (KLR)", Case Analysis (2025). Not stated in judgment (judicial review application dated 4/5/2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3911/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.