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ELCPartially AllowedJudicial Review Notice of Motion dated 14.10.2025· [2026] KEELC 1370 (KLR)

Republic v CECM Lands, Energy, Housing & Urban Development County Government of Marsabit & 3 others; Alelo alias Qalicha Arero (Ex parte Applicant) (Judicial Review Application E005 of 2025) [2026] KEELC 1370 (KLR)

Environment and Land Court
5 March 2026
3,265 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that county governments cannot allocate unregistered community land they only hold in trust for communities.

What this practically means

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Executive summary

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The Ex-parte Applicant moved the court by Notice of Motion dated 14 October 2025 under Sections 8 and 9 of the Law Reform Act and Order 53 Rules 3 and 4 of the Civil Procedure Rules, seeking certiorari to quash and prohibition against a decision of the County Executive Committee Member, Lands, Energy, Housing and Development of the County Government of Marsabit, contained in a letter dated 15 August 2025, directing re-planning, subdivision and re-allocation of land the Applicant occupies. The Applicant contended the suit property is unregistered community land which the County Government holds only as trustee, so the CECM lacked jurisdiction to alienate it, and that the decision breached Articles 10, 47 and 50 of the Constitution. The 1st and 2nd Respondents justified the decision as implementing the judgment in Moyale PMCELC No. 1 of 2020; the 3rd and 4th Respondents (with the Attorney General) opposed the joinder; the Interested Party argued the decision was lawful and the Applicant had no rights in the land. The court framed three issues: joinder of the 3rd and 4th Respondents; the status of the land and the 1st Respondent's jurisdiction; and whether the decision was ultra vires. It found the Attorney General mis-joined since no National Government officer made the decision. It affirmed that the property is unregistered community land held on trust by the County Government, and held that the magistrate in Moyale PMCELC No. 1 of 2020 had erred in directing the County Government to survey, plan, allocate and register it. The CECM's directive was made without jurisdiction and without affording the Applicant a hearing, hence illegal, unlawful, invalid and ultra vires. The suit against the 3rd and 4th Respondents was struck out; certiorari and prohibition issued against the 1st and 2nd Respondents only, with costs to the Ex-parte Applicant borne by the 1st and 2nd Respondents, and a declaration that the property remains unregistered community land subject to the Community Land Act, 2016.

Key legal issues

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01

Proper joinder of the 3rd and 4th Respondents (Attorney General)

Holding

The 3rd and 4th Respondents were mis-joined; they made no decision capable of being quashed, and the applicant was non-suited against them.

Reasoning

The decision complained of was made by the 1st Respondent, an officer of the 2nd Respondent (an autonomous county government under Article 176). The Attorney General is the principal legal advisor of the National Government under Article 156(4) and can only be joined where the complained-of omission was by a National Government officer. No such act existed, so the applicant had no cause of action against the 3rd and 4th Respondents.

p. 4
02

Status of the suit property as unregistered community land

Holding

The suit property is unregistered community land held on trust by the County Government of Marsabit; the magistrate's finding to that effect stands as a judgment in rem.

Reasoning

The judgment in Moyale PMCELC No. 1 of 2020 found the property to be unregistered community land, and all parties before the court confirmed that position. However, the court held that the magistrate erred in directing the County Government to undertake survey, planning and registration, since a trustee county government cannot alienate or allocate unregistered community land; such processes must follow Sections 6 and 8 of the Community Land Act, 2016.

p. 5
03

Whether the impugned decision was ultra vires and made without jurisdiction

Holding

The 1st Respondent's directive to re-plan, subdivide and re-allocate unregistered community land was made without jurisdiction and was illegal, unlawful, invalid and ultra vires.

Reasoning

The 1st Respondent, an officer of the 2nd Respondent, directed that the land be re-planned and subdivided into two equal parts for fresh re-allocation. A county government holding unregistered community land only as trustee cannot allocate or re-allocate it; any purported allocation was ipso facto an illegality. The decision therefore lacked jurisdiction and was void.

p. 5
04

Violation of fair administrative action (Articles 47 and 50) and national values (Article 10)

Holding

The impugned decision was made without notice to, involvement of, or participation by the Ex-parte Applicant, contravening Articles 47 and 50 of the Constitution.

Reasoning

The decision was bound to affect the rights and interests of the Ex-parte Applicant, who occupied and possessed the land, yet was not given notice or heard. The court invoked the fair administrative action jurisprudence in Oloo Onyango, County Assembly of Kisumu, Shollei, Sonko and Gikenyi, holding that a decision made contrary to the rule of law is bad in law regardless of the outcome that would have been reached.

p. 5

Legal principles established

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  • Where community land has not been registered, it is held on trust by the County Government, and the County Government as trustee has no power, mandate or authority to alienate, allocate or re-allocate such land.
  • A decision made without jurisdiction is illegal, unlawful, invalid and ultra vires; an illegal act remains void and cannot be sanitized.

Court orders

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  1. 1.The suit against the 3rd and 4th Respondents be and is hereby struck out
  2. 2.The Application be and is hereby allowed in terms of prayers 1 and 2 thereof
  3. 3.An order of judicial review in the nature of Certiorari and Prohibition granted as against the 1st and 2nd Respondents only
  4. 4.The costs of the Application awarded to the Ex-parte Applicant, borne by the 1st and 2nd Respondents
  5. 5.The suit property remains an unregistered community land and thus subject to the provisions of the Community Land Act, 2016

Authorities

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Legislation

  • Law Reform Act, Chapter 26 Laws of KenyaSections 8 and 9
  • Civil Procedure Rules, 2010Order 53 Rules 3 and 4
  • Constitution of Kenya, 2010Articles 1, 10, 47, 50, 62, 156(4), 176
  • Community Land Act2016, Sections 6 and 8

Cases cited (7)

  • Selle and Another versus Associated Motor Boat Limited
    [1968] EA 93
  • County Assembly of Kisumu versus The Clerk, Kisumu County Assembly Service Board and Others
    2015 eKLR
  • David Oloo Onyango Versus the Attorney General
    1987, eKLR
  • Judicial Service Commission versus Gladys Boss Shollei
    [2022] KESC
  • Mike Sonko Mbuvi versus the City County Assembly of Nairobi and others
    [2022] KESC
  • Gikenyi versus the County Government of Nakuru and others
    [2026] KESC
  • Macfoy Vs United Africa Co Ltd
    (1961) 3 All ER 1169
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act, Chapter 26 Laws of Kenya; and Order 53 Rules 3 and 4 of the Civil Procedure Rules 2010

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, "Republic v CECM Lands, Energy, Housing & Urban Development County Government of Marsabit & 3 others; Alelo alias Qalicha Arero (Ex parte Applicant) (Judicial Review Application E005 of 2025) [2026] KEELC 1370 (KLR)", Case Analysis (2026). Judicial Review Notice of Motion dated 14.10.2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1370/eng@2026-03-05

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