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ELCDismissedMakueni ELC Judicial Review Application (Notice of Motion dated 29th August, 2025)· [2026] KEELC 770 (KLR)

Nganga v Land Control Board of Makueni/Kyaluma & another; Wambua (Interested Party) (Environment and Land Judicial Review Case E010 of 2025) [2026] KEELC 770 (KLR)

Environment and Land Court
12 February 2026
2,351 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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If a Land Control Board refuses your consent in Kenya, you must appeal to the provincial appeals board first before going to court.

What this practically means

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Executive summary

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The Ex-parte Applicant, Benard Kituva Nganga, moved the Environment and Land Court at Makueni by Notice of Motion dated 29th August 2025 seeking judicial review orders of certiorari to quash the decision of the Land Control Board, Makueni/Kyaluma refusing consent to subdivide land parcel Makueni/Kyaluma/57, and mandamus compelling cancellation of consent and title allegedly issued clandestinely to the Interested Party, plus stay, costs and consequential orders. He claimed to be the lawful registered proprietor whose consent was verbally and unjustifiably denied, and that the transfer to the Interested Party was irregular and fraudulent. The Interested Party filed a preliminary objection dated 22nd September 2025 arguing the application was res judicata Makueni ELC No. 89 of 2019, an abuse of process, and that the court lacked jurisdiction to sit on appeal over a decision of a concurrent court. The court framed two issues. On the first, applying Mukisa Biscuit and Oraro v Mbaja, it held the preliminary objection was founded on disputed facts - identity of parties, subject matter and issues with the prior suit - since the pleadings and judgment therein were not availed, and dismissed it with costs. On the second, the court held that Sections 11 and 13 of the Land Control Act provide an appeal to the provincial land control appeals board, which the Applicant never pursued. Applying the exhaustion doctrine per Muthinja, Okal and Chaurembo Mumba, the court found the Applicant had not exhausted the statutory mechanism and dismissed the judicial review application with costs.

Key legal issues

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01

Validity of the preliminary objection on res judicata

Holding

The preliminary objection failed as it was founded on disputed facts requiring proof, not a pure point of law

Reasoning

Relying on Mukisa Biscuit and Oraro v Mbaja, the court held that a preliminary objection must not be blurred with factual details liable to be contested. The court had not perused the pleadings and judgment in Makueni ELC No. 89 of 2019 to ascertain identity of parties, subject matter and issues, and could not speculate on the similarity of the suits. The objection was therefore improperly raised and dismissed with costs.

p. 4
02

Exhaustion of statutory appeal mechanism under the Land Control Act

Holding

The Applicant did not exhaust the appeal to the provincial land control appeals board as provided by Sections 11 and 13 of the Land Control Act, so judicial review could not issue

Reasoning

Section 11 of the Land Control Act provides that a party aggrieved by refusal of consent may appeal to the provincial land control appeals board within thirty days. The Applicant adduced no evidence of filing such an appeal. Applying the exhaustion doctrine as articulated by the Court of Appeal and the Supreme Court, the court held the application was misconceived and dismissed it.

p. 6

Legal principles established

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  • A preliminary objection must raise a pure point of law and cannot rest on disputed facts
  • Where a statutory dispute resolution mechanism exists, it must be exhausted before recourse to the courts

Court orders

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  1. 1.The preliminary objection dated 22nd September, 2025 is dismissed with costs
  2. 2.The Notice of Motion dated 29th August, 2025 seeking judicial review orders of certiorari and mandamus is dismissed with costs
Jurisdiction invoked
Article 23(3) of the Constitution, Section 8 of the Law Reform Act and Section 13(7) of the Environment and Land Court Act 2011

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, "Nganga v Land Control Board of Makueni/Kyaluma & another; Wambua (Interested Party) (Environment and Land Judicial Review Case E010 of 2025) [2026] KEELC 770 (KLR)", Case Analysis (2026). Makueni ELC Judicial Review Application (Notice of Motion dated 29th August, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/770/eng@2026-02-12

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