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ELCDismissedJudicial Review (Chamber Summons dated 24th April, 2025), Naivasha· [2025] KEELC 5362 (KLR)

Kemboi & 2 others v Land Registrar, Naivasha & 3 others (Environment and Land Judicial Review Case E001 of 2025) (Environment and Land) [2025] KEELC 5362 (KLR)

Environment and Land Court
17 July 2025
5,141 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Naivasha dismissed a late challenge to a land title cancellation, confirming Kenya's strict six-month deadline for certiorari.

What this practically means

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Executive summary

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The Applicants moved the Environment and Land Court at Naivasha by Chamber Summons dated 24th April 2025 under Order 53 Rules 1(1), 2, 7(2) and Order 22 Rule 22 of the Civil Procedure Rules seeking leave to institute judicial review proceedings for certiorari to quash the Land Registrar, Naivasha's decision of 19th January 2023 cancelling title to Miti Mingi/Mbaruk Block 5/5172 (Kiungururia) and its subdivisions 6021-6028 held by Joseph Kariuki Murimi, plus a stay of execution of the judgment in Naivasha CMCELC No. E037 of 2024. The 2nd Respondent raised a preliminary objection that the application was time barred under Section 9(2) and (3) of the Law Reform Act and Order 53 Rule 2, was res judicata the judgment of 7th April 2025 in Naivasha CMCELC No. E037 of 2024, and was defective for seeking orders on behalf of a stranger to the proceedings. Delivering a single reasoned ruling on 17th July 2025, M.C. Oundo J applied the Mukisa Biscuits definition of a preliminary objection, held that the applicants had pleaded knowledge of the cancellation in their plaint of 9th February 2023 and defence of 22nd October 2024, and that the statutory six-month period could not be extended. The court further found the intended proceedings res judicata the previous final judgment between the same parties over the same title. The Chamber Summons was dismissed with costs to the 2nd Respondent and the preliminary objection upheld.

Key legal issues

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01

Whether the application for leave to apply for certiorari was time barred

Holding

The application was time barred; the applicants knew of the 19th January 2023 decision by February 2023 at the latest, and the six-month statutory period could not be extended

Reasoning

Order 53 Rule 2 and Section 9(3) of the Law Reform Act bar leave for certiorari beyond six months from the date of the proceeding. The applicants pleaded knowledge of the cancellation in the plaint filed on 9th February 2023 in Naivasha CMCELC No. 010 of 2023 and in their defence and counterclaim of 22nd October 2024. As the limitation is statutory, the time could not be extended, and an application filed on 24th April 2025, over two years later, could not stand.

p. 8
02

Whether the intended certiorari proceedings were res judicata the judgment in Naivasha CMCELC No. E037 of 2024

Holding

The matter was res judicata; the same issues, parties and title had been determined by a court of concurrent jurisdiction on 7th April 2025 with finality and no appeal preferred

Reasoning

Applying the Supreme Court's elements of res judicata in John Florence Maritime Services, the court compared the pleadings and counterclaim in the previous suit and found the matters identical, the parties similar, the title the same and jurisdiction concurrent. The previous judgment was final in nature and no appeal had been preferred, so only the same court or an appellate court could disturb it.

p. 10
03

Whether the preliminary objection was a proper point of law

Holding

The objection constituted pure points of law capable of disposing of the matter, following Mukisa Biscuits

Reasoning

The court adopted Law JA's classic definition of a preliminary objection as a point of law pleaded or arising by clear implication from the pleadings which, if argued as a preliminary point, may dispose of the suit, citing limitation as an example. Limitation and res judicata are both matters going to jurisdiction to be determined in limine.

p. 7

Legal principles established

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  • Leave to apply for certiorari must be sought within six months of the decision and time cannot be extended under the Civil Procedure Rules because the limitation is statutory
  • Adding parties to a subsequent suit does not defeat the doctrine of res judicata
  • A judgment of a competent court can only be varied, vacated, set aside or reviewed by the same court or an appellate court

Court orders

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  1. 1.The Applicants' Chamber Summons dated 24th April, 2025 seeking leave to institute judicial review proceedings is dismissed
  2. 2.The 2nd Respondent's Notice of Preliminary Objection dated 4th June 2025 succeeds
  3. 3.Costs of the application to the 2nd Respondent
Jurisdiction invoked
Order 53 Rule 1(1), 2, 7(2) and Order 22 Rule 22 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kemboi & 2 others v Land Registrar, Naivasha & 3 others (Environment and Land Judicial Review Case E001 of 2025)  (Environment and Land) [2025] KEELC 5362 (KLR)", Case Analysis (2025). Judicial Review (Chamber Summons dated 24th April, 2025), Naivasha. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5362/eng@2025-07-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.