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ELCPartially AllowedELCLJR E002 OF 2026

Republic v Narok County Government & another; Adventures Aloft Kenya Limited & 2 others (Ex parte) (Environment and Land Judicial Review Case E002 of 2026) [2026] KEELC 4355 (KLR)

Environment and Land Court of Kenya
9 July 2026
14,098 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~56 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court quashed Narok County's approval of a new Maasai Mara hot air balloon business because the county failed to follow its own management plan or hear affected operators.

What this practically means

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Executive summary

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The Ex Parte Applicants, existing hot air balloon operators in the Maasai Mara National Reserve, sought certiorari to quash the County Government of Narok's letter of 13th August 2025 approving Aspire Aviation Limited's request to operate a hot air balloon business in the Reserve, and prohibition against new approvals inconsistent with the Maasai Mara National Reserve Management Plan 2023 - 2032, plus declaratory reliefs on legitimate expectation and ulterior motive. The Interested Party raised preliminary objections on limitation, exhaustion of County grievance mechanisms, and forum shopping; the Respondent and Interested Party argued the approval merely operationalised a 2018 approval and complied with all regulatory requirements. The Court upheld its jurisdiction: the grant of leave on 2nd March 2026 was valid and unappealed, the County mechanisms could not grant certiorari or prohibition, and prior litigation did not conclusively determine the legality of the impugned decision. On the merits, the Respondent admitted the Plan prohibits new ballooning concessions but failed to explain how the approval was reconciled with that prohibition, and produced no evidence that the Applicants were notified, heard, or invited to make representations. The decision was tainted by procedural impropriety contrary to Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act. Certiorari issued quashing the approval, and a qualified prohibition issued restraining approvals inconsistent with the Plan, the Constitution and the Act. The declaratory reliefs were declined as unavailable in judicial review. Costs were awarded to the Ex Parte Applicants jointly and severally against the Respondent and Interested Party. Judgment delivered by L. Gacheru J on 9th July 2026.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Court has jurisdiction to entertain the Ex Parte Applicants' Notice of Motion dated 2nd March 2026
  2. 2.Whether the Respondent's decision contained in the letter dated 13th August 2025 approving the Interested Party's request to operate a Hot Air Balloon Business within the Maasai Mara National Reserve was unlawful, irrational or procedurally unfair
  3. 3.Whether the Ex Parte Applicants have established grounds for the grant of the Judicial Review orders sought
  4. 4.Whether the declaratory reliefs sought are available in Judicial Review proceedings
  5. 5.Who should bear the costs of the Application

Key legal issues

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01

Limitation - whether the judicial review was filed outside the six-month period under Section 9(3) of the Law Reform Act

Holding

No - leave was granted on 2nd March 2026 and was never set aside or appealed; the collateral attack on the grant of leave was impermissible

Reasoning

The Court noted the Chamber Summons for leave was considered and granted on 2nd March 2026, and the Interested Party neither sought review nor appealed. Once granted and un-varied, the leave order remained valid, so the objection that the proceedings were statute-barred failed.

p. 51
02

Exhaustion of alternative remedies under Sections 88 and 89 of the County Governments Act and Section 9 of the Fair Administrative Action Act

Holding

Exhaustion doctrine acknowledged, but the County grievance mechanisms were not shown capable of granting certiorari and prohibition or quashing the impugned decision

Reasoning

The Court accepted the doctrine but held that the Interested Party had not demonstrated that the internal petition and grievance mechanisms could grant the public law remedies sought, so they were not an effective alternative remedy ousting the supervisory jurisdiction.

p. 53
03

Forum shopping and abuse of process due to multiplicity of proceedings

Holding

Rejected - previous proceedings did not conclusively determine the legality of the impugned 13th August 2025 decision and no plea of res judicata was formally raised or demonstrated

Reasoning

The Court acknowledged prior litigation existed but held that mere existence of previous or parallel proceedings does not deprive the Court of jurisdiction; the Interested Party failed to show the impugned decision's legality had been finally determined elsewhere.

p. 54
04

Whether the approval contravened Chapter 4.6 of the Management Plan and was procedurally fair

Holding

The Respondent failed to demonstrate how the approval was reconciled with the acknowledged prohibition on new concessions, and failed to show procedural fairness under Article 47 and Section 4 of the Fair Administrative Action Act

Reasoning

The Respondent admitted the Management Plan bars new concessions but offered no material showing it analysed the inconsistency before approving; nor did it show the Ex Parte Applicants were notified, heard or invited to make representations. Prior KCAA participation could not substitute for the Respondent's own statutory obligations. The decision was therefore procedurally improper and liable to be quashed.

05

Whether a fresh concession or continuation of an existing 2018 approval was granted

Holding

Left undecided - contested facts requiring oral evidence fall outside judicial review; the Court confined itself to the legality of the process

Reasoning

The Court noted neither the application nor the approval letter described the approval as a renewal, and the alleged 2018 approval was disputed (the Interested Party having been incorporated in 2021), but held that definitive findings of fact on contested evidence are outside the province of judicial review.

p. 58
06

Availability of declaratory reliefs in judicial review

Holding

Not available - declined

Reasoning

The Court concurred with the Respondent that Order 53 judicial review remedies are traditionally certiorari, prohibition and mandamus; Article 23 declarations require a constitutional petition, which this was not.

p. 70
07

Whether an Order of Prohibition should issue

Holding

Yes, in a qualified form - prohibiting approvals inconsistent with the Management Plan, the Constitution and the Fair Administrative Action Act, without usurping the Respondent's statutory mandate

Reasoning

The Court agreed it should not disable a public authority from performing its mandate, but held that judicial review ensures powers are exercised lawfully; a prohibition limited to approvals inconsistent with the Plan merely requires lawful exercise of the mandate.

p. 69

Legal principles established

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  • Once leave has been granted by a court of competent jurisdiction and not set aside or varied, it remains valid and binding, and a party cannot at the substantive hearing invite the court to sit on appeal against its own interlocutory decision
  • Where a public authority departs from an established policy or statutory management framework, it bears the obligation of explaining the basis for the departure
  • Judicial review is concerned with the decision-making process, not the merits of the decision
  • Declaratory reliefs are not available in judicial review proceedings under Sections 8 and 9 of the Law Reform Act and Order 53

Court orders

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  1. 1.An Order of Certiorari removing into the Court and quashing the Respondent's decision contained in the letter dated 13th August 2025 approving the Interested Party's request to operate a Hot Air Balloon Business within the Maasai Mara National Reserve
  2. 2.An Order of Prohibition restraining the Respondent from granting approvals for the operation of Hot Air Balloon Businesses within the Maasai Mara National Reserve in a manner inconsistent with the Maasai Mara National Reserve Management Plan 2023 - 2032, the Constitution and the Fair Administrative Action Act
  3. 3.Declaratory prayers declined
  4. 4.Costs of the Judicial Review Application awarded to the Ex Parte Applicants, to be borne jointly and severally by the Respondent and the Interested Party

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act, Cap. 26 and Order 53 of the Civil Procedure Rules, 2020

Relief refused

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Declaration that by operation of legitimate expectation no new approvals would be granted during the lifespan of the Management Plan

Declarations are not remedies available in Judicial Review proceedings under the Law Reform Act and Order 53; such remedies are confined to certiorari, prohibition and mandamus

p. 70

Declaration that the impugned approval was actuated by ulterior motives and violated the Constitution and the Fair Administrative Action Act

Declined for the same reason - declaratory reliefs lie in constitutional petitions, not in Order 53 judicial review

p. 70

Costs

The Ex Parte Applicants shall have the costs of the instant Judicial Review Application dated 2nd March 2026, to be borne jointly and severally by the Respondent and the Interested Party.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

it remains a valid and binding order of the Court. The Interested Party cannot, at the hearing of the substantive Judicial Review Motion, invite this Court to sit on an appeal against its own interlocutory decision granting leave.
p. 51Finality of the grant of leave; no collateral attack
this court is not persuaded that the available internal mechanisms constituted an effective alternative remedy capable of ousting this Court's supervisory jurisdiction.
p. 53Exhaustion doctrine and alternative remedies
the mere existence of previous or parallel proceedings does not, without more, deprive this Court of jurisdiction.
p. 54Multiplicity of proceedings and forum shopping
the Respondent failed to demonstrate compliance with the procedural requirements imposed by Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act, in arriving at the impugned decision.
Fair administrative action - procedural impropriety
Where a public authority departs from an established policy or statutory management framework, it bears the obligation of explaining the basis upon which such departure is justified.
p. 60Rationality and duty to justify departure from policy
the prayers seeking declaratory reliefs are not available in the present Judicial Review proceedings, and are therefore declined, and the same cannot be granted.
p. 70Declaratory reliefs unavailable in judicial review
A. An Order of Certiorari, is hereby issued removing into this Court and quashing the Respondent's decision contained in the letter dated 13th August 2025, approving the request by the Interested Party, to operate a Hot Air Balloon Business, within the Maasai Mara National Reserve.
p. 71Final orders - certiorari
B. An Order of Prohibition, is hereby issued restraining the Respondent from granting approvals for the operation of Hot Air Balloon Businesses within the Maasai Mara National Reserve, in a manner inconsistent with the provisions of the Maasai Mara National Reserve Management Plan 2023 - 2032, the Constitution and the Fair Administrative Action Act.
p. 71Final orders - prohibition
D.The Ex Parte Applicants shall have the costs of the instant Judicial Review Application dated 2nd March 2026, to be borne jointly and severally by the Respondent and the Interested Party.
p. 72Final orders - costs

Issues in the judgment

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minor

The judgment references a '2nd Respondent's Replying Affidavit' in NCART Appeal No. E001 of 2025 although only one Respondent (County Government of Narok) is party to these proceedings

minor

The identity of the Ex Parte Applicants is never expressly stated in the coram or opening; the 1st Ex Parte Applicant's director is named (Paramjeet Mhajan) but the full list of applicants must be inferred from related litigation references

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 Narok County Government & another; Adventures Aloft Kenya Limited & 2 others (Ex parte) (Environment and Land Judicial Review Case E002 of 2026) [2026] KEELC 4355 (KLR)", Case Analysis (2026). ELCLJR E002 OF 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4355/eng@2026-07-09

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