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ELCPartially AllowedKimilili CMCC Case No. E003 of 2021 (related applications; ruling delivered at Bungoma)· [2026] KEELC 3143 (KLR)

Wafula & 4 others v Saenyi & another (Environment and Land Miscellaneous Application E039 of 2025) [2026] KEELC 3143 (KLR)

High Court of Kenya
6 May 2026
KBK. BOR
1,327 words in judgment
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The bottom line

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The High Court refused judicial review and recusal but gave the land owners 60 days to file an appeal before eviction.

What this practically means

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Executive summary

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This ruling of the High Court at Bungoma (K. Bor, J) determined three applications by the Applicants arising from Kimilili CMCC Case No. E003 of 2021, in which interlocutory and final judgments were entered against them, including a judgment requiring them to vacate the suit land within 90 days and subsequent eviction orders issued on 6/2/2026. The first application sought leave to apply for mandamus, prohibition and certiorari against the trial court's judgment; the second sought stay of execution of the interlocutory judgment and a ruling, and expungement of Kakamega High Court Succession Cause No. 221 of 2006 from the record; the third, supported by an interested party, Boniface Wamalwa Wataka, who was evicted despite not being a party to the suit, sought stay of the eviction order and the recusal of Hon. John Ndururi. The Respondent opposed, contending that no leave for judicial review was sought, that an appeal was the proper remedy, and that new issues were being raised. The court held that judicial review was not the proper recourse against a subordinate court's judgment, that an appeal was the correct avenue, and that the recusal application should first have been made before the magistrate. The court refused the prerogative reliefs and recusal but, in the interest of justice, stayed execution of the trial judgment for 60 days to enable the Applicants to lodge and pursue an appeal, directing that the appeal be filed within 14 days. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether leave should issue for prerogative orders (mandamus, prohibition, certiorari) against the trial court's judgment

Holding

Refused; judicial review does not lie as a substitute for an appeal from a competent subordinate court

Reasoning

The court held that the Applicants' grievance with the magistrate's judgment and interlocutory rulings could properly be addressed on appeal. The Applicants had not appealed in time and had not sought extension of time, and the review application raised new issues not addressed before the trial court. Judicial review is not the proper vehicle for challenging the correctness of a trial court's decision on evidence and law.

p. 3
02

Whether the magistrate should recuse himself

Holding

Refused; the recusal application was not first made before the magistrate

Reasoning

The court found that recusal must be sought before the judicial officer concerned so that he has the opportunity to hear and determine the application. Raising recusal for the first time on appeal, without affording the magistrate that opportunity, was procedurally improper.

p. 3
03

Whether stay of execution should be granted

Holding

Granted for 60 days, with the appeal to be filed within 14 days

Reasoning

Although the Applicants' intended remedy was a stay pending appeal rather than judicial review, the court considered it in the interest of justice to stay execution of the trial court's judgment, including the eviction order, for a limited period to enable the Applicants to lodge and pursue their appeal.

p. 3

Legal principles established

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  • A party aggrieved by a subordinate court's judgment should challenge it on appeal, not through judicial review proceedings
  • An application for a judicial officer's recusal must first be made before that judicial officer
  • The court may in the interest of justice grant a time-limited stay of execution to enable an aggrieved party to lodge and pursue an appeal

Court orders

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  1. 1.Stay of execution of the judgment delivered in Kimilili CMCC Case No. E003 of 2021 for 60 days to enable the Applicants lodge and pursue their appeal
  2. 2.The appeal must be filed within the next 14 days
  3. 3.Each party to bear its own costs for the applications

Authorities

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Legislation

  • Civil Procedure Act
  • Civil Procedure RulesOrder 53 Rules 1 to 7
  • Civil Procedure RulesOrder 42

Cases cited (2)

  • Mukisa Biscuits Manufacturing Limited v West End Distributors ltd
    [1969] EA 696
  • Giella v Cassman Brown and Company Limited
    (1973) E.A
On appeal from
Senior Principal Magistrate's Court, Kimilili
Kimilili CMCC Case No. E003 of 2021
Jurisdiction invoked
Order 53 Rules 1 to 7 of the Civil Procedure Rules (judicial review and supervisory jurisdiction over subordinate court)

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, "Wafula & 4 others v Saenyi & another (Environment and Land Miscellaneous Application E039 of 2025) [2026] KEELC 3143 (KLR)", Case Analysis (2026). Kimilili CMCC Case No. E003 of 2021 (related applications; ruling delivered at Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3143/eng@2026-05-06

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