Republic v Principal Magistrate, Kajiado Magistrate Law Court & 3 others; eeli & 2 others (Ex parte Applicants) (Environment and Land Judicial Review Case E014 of 2024) [2026] KEELC 926 (KLR)
The bottom line
#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 Preliminary Objection is merited and meets the legal threshold
Key legal issues
#Whether the Preliminary Objection raising want of a Supporting Affidavit and improperly sealed annexures is a pure point of law and merited
The Preliminary Objection is dismissed; the judicial review pleadings complied with Order 53 and the objection conflated procedural regimes and contested facts
The Court recited the Mukisa Biscuit definition and the Cheperenger and Oraro authorities, observing that an objection bearing factual aspects requiring proof is not a true preliminary objection. Under Order 53 Rule 1(2) only a Statutory Statement and Verifying Affidavit are required at the leave stage, and Order 53 Rule 4(1) requires service of that statement with the Notice of Motion. Since the Ex Parte Applicants' pleadings complied with Order 53, importing Order 51 Rule 4 requirements was inappropriate, and Article 50(1) favoured determination on the merits.
Legal principles established
#- A substantive Notice of Motion in judicial review proceedings under Order 53 need not be accompanied by a Supporting Affidavit; compliance with the Statutory Statement and Verifying Affidavit requirements suffices
- Rule 11 of the Fair Administrative Action Rules does not apply retroactively to judicial review processes commenced under Order 53 of the Civil Procedure Rules
Court orders
#- 1.The 2nd Respondent's Preliminary Objection dated 8 October 2025 is disallowed as unmerited
- 2.The costs of the objection shall be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 53 of the Civil Procedure Rules (judicial review jurisdiction of the High Court)
Relief refused
#2nd Respondent's prayer that the Amended Notice of Motion dated 17 July 2025 be struck out for want of a Supporting Affidavit and improperly sealed annexures
The Court found the judicial review pleadings fully compliant with Order 53 and held the objection blended contested facts, so it was not a true preliminary objection
Costs
The costs of the objection shall be in the cause.
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.
Accordingly, I hereby disallow the 2nd Respondent’s Preliminary Objection dated 8 October 2025, as it is unmerited. The costs of the objection shall be in the cause.
It would therefore be unjust to deny the Ex Parte Applicants the opportunity to have their dispute determined on the merits on the basis of alleged procedural defects, and particularly where the Constitution guarantees the right to a fair hearing under Article 50(1).
Any assertion which claims to be a preliminary objection, yet bears factual aspects calling for proof or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed.
Unlike ordinary motions under Order 51, a substantive Notice of Motion in judicial review proceedings need not be accompanied by a Supporting Affidavit.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Principal Magistrate, Kajiado Magistrate Law Court & 3 others; eeli & 2 others (Ex parte Applicants) (Environment and Land Judicial Review Case E014 of 2024) [2026] KEELC 926 (KLR)", Case Analysis (2026). Judicial Review proceedings arising from Kajiado Miscellaneous Application No. E014 of 2025 (Amended Notice of Motion dated 17 July 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/926/eng@2026-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.