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ELCStruck OutNot stated in judgment

Mburugi & another (Legal Representative of Samuel Mugambi Mburugu and M’mbui M’rithaa, Respectively – Deceased) v Sub-County Land Adjudication & Settlement Officer [Imenti North/Imenti South/Meru Central & Buuri] & another (Judicial Review E006 of 2025) [2025] KEELC 6096 (KLR)

Environment and Land Court
18 September 2025
3,591 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicants sought an order of certiorari to quash the Sub-County Land Adjudication & Settlement Officer's refusal (by letter dated 26th November 2024) to grant consent under section 30(1) of the Land Adjudication Act, Cap 284, and mandamus compelling issuance of the consent to enable them to file a civil suit. The Respondents opposed, contending the application was premature, misconceived and that the court lacked jurisdiction under section 30(3) of the Act. The court framed two issues: competency of the application, and jurisdiction. On competency, the court held the application was fatally defective because it was not intituled in the name of the Republic with the affected persons as ex-parte applicants, as required for prerogative orders, following Welamondi and Scope Telematics; the defect went to the root of jurisdiction and could not be cured by Article 159(2)(d). On jurisdiction, the court held that section 30(3) obliged an aggrieved person to appeal to the Cabinet Secretary within 28 days of refusal, and failure to exhaust that remedy divested the applicants of access to the court, applying the exhaustion doctrine from Mumba v Munyao and Muthinja. The court further held mandamus could not issue since the 1st Respondent had already performed its statutory mandate by deciding the request. The substantive Notice of Motion dated 17th June 2025 was struck out, with costs awarded to the respondents, to be agreed or taxed by the Deputy Registrar.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the substantive notice of motion application is competent or otherwise
  2. 2.Whether the court is divested of the requisite jurisdiction to entertain and adjudicate upon the application

Key legal issues

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01

Competency of the judicial review application

Holding

The application was improperly intituled as it was not brought in the name of the Republic, rendering the proceedings fatally incompetent and a nullity ab initio

Reasoning

Judicial review proceedings are taken in the name of the Republic on behalf of the affected person, who must be described as Ex-parte Applicant. Citing Welamondi, prerogative orders issue in the name of the Republic since Kenya became a Republic. The defect goes to the root of jurisdiction and is not a curable procedural technicality under Article 159(2)(d).

p. 3
02

Jurisdiction and exhaustion of statutory remedies under section 30(3) of the Land Adjudication Act

Holding

The court lacked jurisdiction because the applicants failed to exhaust the statutory remedy of appealing to the Cabinet Secretary within 28 days of the refusal of consent

Reasoning

Section 30(3) requires a person aggrieved by refusal of consent to appeal in writing to the Minister within 28 days, whose decision is final and only impeachable by judicial review. Failure to exhaust divests the applicant of the right to access the court. The exhaustion doctrine, as expounded in Mumba v Munyao and Muthinja, requires courts to defer to statutory dispute resolution mechanisms; absent jurisdiction a court must down its tools.

p. 5
03

Availability of mandamus

Holding

Mandamus cannot issue where the public body has already performed its statutory obligation

Reasoning

The 1st Respondent had already exercised its mandate by declining the consent. Mandamus only lies to compel performance where there is default, failure, neglect or refusal by a public body or authority, following Kenya National Examination Council v Republic Ex Parte Gathenji.

p. 7

Legal principles established

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  • Applications for prerogative orders must be intituled in the name of the Republic, with the affected person as ex-parte applicant; failure renders the proceedings fatally incompetent
  • Where a person is aggrieved by refusal of consent under section 30(1) of the Land Adjudication Act, an appeal to the Cabinet Secretary within 28 days is the mandatory statutory route before recourse to court
  • Article 159(2)(d) of the Constitution does not permit litigants to disregard rules of procedure

Court orders

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  1. 1.The Substantive Notice of Motion dated 17th June 2025 be and is hereby struck out
  2. 2.Costs of the Application be and are hereby awarded to the respondents
  3. 3.The Costs shall be agreed upon and in default, taxed by the Deputy Registrar of the Court in the conventional manner

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act, Cap 26 and Order 53 of the Civil Procedure Rules 2010

Relief refused

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Order of Certiorari to quash the 1st Respondent's refusal to give consent to file a suit under section 30(1) of the Land Adjudication Act

Application improperly intituled, fatally incompetent, and court divested of jurisdiction as applicants failed to appeal to the Cabinet Secretary under section 30(3)

p. 7

Order of Mandamus to compel issuance of consent to file suit

The 1st Respondent had already performed its statutory mandate by declining consent; mandamus only issues upon default, failure, neglect or refusal to act

p. 7

Costs

Costs of the Application awarded to the respondents, to be agreed upon and in default taxed by the Deputy Registrar in the conventional manner

Quotable passages

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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 Substantive Notice of Motion dated 17th June 2025; be and is hereby struck out.
p. 7Final orders - striking out
the failure to bring the application for judicial review in the name of the Republic [as prescribed under the law] renders the entire proceedings before the court fatally incompetent and thus a nullity ab initio
p. 3Proper intituling of judicial review applications
The failure to file the appeal, divests the applicant of the right to access the court; and hence the Applicants have only themselves[s] to blame
p. 5Exhaustion of statutory remedies
It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked.
p. 6Exhaustion doctrine (quoting Court of Appeal in Muthinja)
Absent jurisdiction, a court of law is commanded to down its tools at the very earliest.
p. 7Jurisdiction
an order of mandamus can only issue where there is default, failure, neglect and or refusal by the public body and or authority
p. 7Mandamus

Issues in the judgment

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minor

Case number/title of the judicial review application not stated anywhere in the judgment; parties not individually named

minor

Final disposition paragraph contains a grammatical lapse (missing word) in recording the dismissal

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, "Mburugi & another (Legal Representative of Samuel Mugambi Mburugu and M’mbui M’rithaa, Respectively – Deceased) v Sub-County Land Adjudication & Settlement Officer [Imenti North/Imenti South/Meru Central & Buuri] & another (Judicial Review E006 of 2025) [2025] KEELC 6096 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6096/eng@2025-09-18

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