Republic v Attorney General & 6 others; Wilson (Ex parte Applicant) (Suing on Behalf of the Residents of Chepchoina Phase 111 in Trans Nzoia County) (Environment and Land Judicial Review Case E005 of 2024) [2025] KEELC 5947 (KLR)
The bottom line
#A Kenyan court scrapped a settlement scheme's beneficiary list because land officials broke the law in forming vetting committees and skipped genuine public participation.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the notice of motion is time-barred under Order 53 Rule 2 of the Civil Procedure Rules
- 2.Whether the constitution, election and approval of the Chepchoina Phase 111 vetting committee on 11/6/2021 complied with Section 134 of the Land Act and Section 33(1) of the Land Regulations, 2017
- 3.Whether the Sub-County Selection Committee appointed on 13/4/2022 was lawfully constituted under Section 134(4) of the Land Act
- 4.Whether public participation requirements were met in compiling the list of beneficiaries
- 5.Whether the applicant is entitled to the judicial review orders of certiorari, mandamus and prohibition
Key legal issues
#Timeliness/jurisdiction under Order 53 Rule 2
The preliminary objection on the six-month time bar fails because the application challenges an ongoing settlement process
The court found the notice of motion challenges an ongoing process of resettlement and identification of beneficiaries, not merely past decisions, so the six-month certiorari time limit under Order 53 Rule 2 did not bar it. The applicant also invoked constitutional jurisdiction under Article 47 and the Fair Administrative Action Act, under which applications must be made without unreasonable delay, a contextual question.
Legality of the committees' constitution
The vetting and Sub-County Selection Committees were unlawfully constituted contrary to Section 134 of the Land Act
Section 134(4) requires the Sub-County Selection Committee to be appointed by the Cabinet Secretary with a statutorily defined membership. The vetting committee arose from a public meeting with no legal basis and the selection committee included community representatives outside the statutory categories. The respondents filed no reply and the sworn averments and annexures stood uncontroverted, so the committees' decisions were in vacuo.
Public participation and fair administrative action
The respondents failed to demonstrate lawful, procedurally fair and participatory administrative action under Article 47 and the FAAA
Public participation is a national value under Articles 1, 10, 118 and 232, entailing sensitization, notice, facilitation, consideration of views, inclusivity and transparency. Section 5 of the FAAA requires public notice, consideration of views, reasons and appeal mechanisms. The respondents, having not responded, failed to show compliance; access to information and fair administrative action are rights the applicant and residents are entitled to.
Scope of judicial review post-2010
Where a party invokes both the Constitution and Order 53, the court may engage in merit review; the applicant took a dual approach
Relying on Dande and Saisi, judicial review is now a substantive justiciable right under Article 47. Where proceedings are brought under the Constitution, the court may review merits; under Order 53 alone it is confined to process. The applicant invoked Articles 2, 10, 22, 23, 40, 47, 50, 60, 67, 68 and 162(3)(b) alongside statutory provisions, permitting broader review.
Burden of proof and effect of non-filing of responses
The burden lay on the applicant but was discharged because the respondents' unchallenged affidavit evidence admitted the facts
Under Sections 107 and 112 of the Evidence Act the applicant had to prove the impugned decisions violated Articles 10 and 47 and Sections 134 and 135 of the Land Act. The minutes, letters and beneficiary list annexed were not disputed. Authorities hold that failure to file a replying affidavit amounts to admission of the facts alleged on oath, entitling the applicant to the writs.
Legal principles established
#- A respondent who fails to file a replying affidavit cannot controvert sworn averments, which stand unchallenged
- Prohibition is directed at future proceedings while certiorari quashes past illegal decisions
- Proper statutory constitution of the Sub-County Selection Committee is a precondition for lawful public participation in settlement schemes
Court orders
#- 1.Certiorari to quash the decision of the meeting held on 11/6/2021 culminating in the 6th respondent's confirmation/approval of the Sub-County vetting committee in Chepchoina Phase 111 Settlement Scheme
- 2.Certiorari to quash the decision(s) of the meeting of 13/4/2022 of the Chepchoina Phase 111 Sub-County Selection Committee culminating in the publication of the list of beneficiaries compiled on 11/8/2023
- 3.Mandamus compelling the 6th respondent to revoke the confirmation and approval of the vetting committee
- 4.Prohibition restraining the 7th respondent from considering, approving, verifying, publishing or initiating settlement of squatters per the identified list of beneficiaries
- 5.Prohibition restraining the 3rd respondent from issuing, allocating or opening a register in favour of the 7th respondent per that list
- 6.Mandamus directed at the 2nd, 4th, 5th, 6th and 7th respondents to strictly adhere to Section 134 of the Land Act in constituting, selecting and appointing the Sub-County Selection Committee
- 7.Directions to the respondents to publish and supply members of the settlement scheme with all minutes, proceedings, details and beneficiary lists within 45 days, to be presented at a meeting chaired by the Assistant County Commissioner
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 23, 47 and 162(3)(b) of the Constitution; Sections 8 and 9 of the Law Reform Act; Sections 7, 8 and 12 of the Fair Administrative Action Act; Order 53 of the Civil Procedure Rules; Sections 134 and 135 of the Land Act
Relief refused
#Costs
The court declined to award costs against the respondents
Costs
There will be no order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The preliminary objection raised by the respondents in my view lacks merit. The notice of motion seeks to challenge an ongoing process of resettlement of squatters and the identification of the genuine beneficiaries.
An order of certiorari be and is hereby issued to remove into this court to quash the decision of the meeting held on 11/6/2021 culminating in the 6th respondent’s decision to confirm and or approve the Sub-County vetting committee in Chepchoina Phase 111 Settlement Scheme.
An order of mandamus shall also issue directed at the 2nd , 4th, 5th, 6th and 7th respondents, to henceforth, strictly adhere to the law and the rules made thereunder in the constitution, selection and appointment of the Sub-County Selection Committee in line with Section 134 of the Land Act.
There will be no order as to costs.
The averments on oath by the exparte applicant have not been controverted. The annexures have not been challenged.
Issues in the judgment
#The judgment inconsistently refers to the challengeable decisions as made on 11/6/2021 and 12/4/2022 versus 13/4/2022
The Land Regulations 2017 are inconsistently cited in the body as 'Sections' but in the framework discussion as 'Rules' (Rule 33-39) and also as 'Part V1 of the Land Registration Act, 2017'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Attorney General & 6 others; Wilson (Ex parte Applicant) (Suing on Behalf of the Residents of Chepchoina Phase 111 in Trans Nzoia County) (Environment and Land Judicial Review Case E005 of 2024) [2025] KEELC 5947 (KLR)", Case Analysis (2025). Judicial Review Notice of Motion dated 3/10/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5947/eng@2025-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.