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ELCDismissedJudicial Review (Notice of motion dated 22 March 2023), Machakos· [2026] KEELC 3313 (KLR)

Republic of Kenya v National Land Commission & 3 others; Kibua & another (Ex parte Applicants) (Environment and Land Judicial Review Case E003 of 2023) [2026] KEELC 3313 (KLR)

Environment and Land Court
2 June 2026
AKA. Y. Koross
3,333 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Machakos dismissed an attempt to force issuance of land leases, holding that disputed land ownership must be settled through a full trial, not judicial review.

What this practically means

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Executive summary

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The ex parte applicants, holding letters of allotment dated 21 December 1993 for Machakos/Municipality/Block 1/681 and 1/679, sought judicial review orders of mandamus compelling the 1st and 2nd respondents to issue leases and certificates of lease, prohibition against the 3rd respondent (County Government of Machakos) interfering with the suit parcels, and mandamus compelling the 3rd respondent to grant development applications. They alleged 23 to 29 years of unexplained refusal to issue titles and permits, in breach of fair administrative action under Articles 40 and 47. The 3rd respondent opposed, averring the suit parcels fall within its registered public land (formerly LR 909/563) developed as a housing estate with NHC funding, never available for alienation, and that the applicants' allotment was procedurally defective and their sale agreement void. The interested party (an investigations body) likewise opposed, showing the 1993 allotment was irregular, the PDP unapproved, and the allocated parcel did not correspond to the plot in the allotment letter. The 1st and 2nd respondents associated themselves with the IP's documents. The court framed two issues: whether judicial review was appropriate and whether the motion was merited. Citing Supreme Court authority that Order 53 review is confined to process, not merits, the court nevertheless concurred with Riungu that where contested land ownership with divergent documents must be resolved on affidavit evidence, an ordinary suit with oral testimony is required. Finding the ownership issue highly contentious and noting pending related suits, the court held the orders could not be granted. The motion was dismissed with costs to the respondents and the interested party.

Key legal issues

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01

Whether judicial review is the appropriate avenue where the underlying dispute concerns contested ownership of land

Holding

Judicial review is inappropriate; the dispute requires a full merits determination in an ordinary suit

Reasoning

Although the ex parte applicants sought only prerogative orders, their affidavits showed they knew their ownership was questioned by the IP. The court, concurring with the IP and Riungu, found the matter required scrutiny of ownership on divergent documents, which can only be resolved through oral testimony in an ordinary suit, not affidavit-based judicial review proceedings.

p. 6
02

Whether the ex parte applicants' letter of allotment and PDP constituted valid title conferring rights to the suit parcels

Holding

The allotment was irregular; the PDP lacked an approved development plan number and was neither approved nor present in physical planning records

Reasoning

The IP's investigations showed the 1993 letter of allotment to KANU Women League was issued in disregard of existing public use, was accepted after the 30-day period expired, and the parcel eventually allocated to the 1st ex parte applicant differed from UNS B.C.R Plot No. 7 in the PDP, which was not approved or on record.

p. 5

Legal principles established

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  • Judicial review under Order 53 is concerned only with the process of decision-making, not the merits of the decision
  • Where a dispute requires resolution of contested ownership of land based on documentary and affidavit evidence, it falls outside judicial review and must be resolved in an ordinary suit with oral testimony

Court orders

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  1. 1.The notice of motion dated 22 March 2023 is dismissed
  2. 2.Costs are awarded to the respondents and the interested party
Jurisdiction invoked
Order 53 Rules 1 and 3 of the Civil Procedure Rules, pursuant to leave granted on 23 March 2023

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 of Kenya v National Land Commission & 3 others; Kibua & another (Ex parte Applicants) (Environment and Land Judicial Review Case E003 of 2023) [2026] KEELC 3313 (KLR)", Case Analysis (2026). Judicial Review (Notice of motion dated 22 March 2023), Machakos. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3313/eng@2026-06-02

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