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ELCPartially AllowedELC JR NO. E016 OF 2025· [2026] KEELC 4700 (KLR)

Mulinge v Cabinet Secretary, Ministry of Lands and Physical Planning & 5 others (Environment and Land Judicial Review Case E016 of 2025) [2026] KEELC 4700 (KLR)

Environment and Land Court
23 July 2026
3,105 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicant, John Kimongu Mulinge, moved the Court by Originating Motion dated 17th December 2025 under the Fair Administrative Action Act and the Fair Administrative Action Rules, 2024, seeking an order deeming the application properly filed under the doctrine of discoverability, an order of prohibition, and an order of certiorari quashing the decision of 29th October 2025 made in Adjudication Land Appeal to the Minister Case No. 14 of 1999 over Parcel No. 253, Kilome Adjudication Section, Makueni County. He contended the appeal was lodged about five years outside the statutory 60-day period, that fresh evidence was admitted without leave, that the Interested Party prosecuted the appeal without letters of administration, and that the appeal had been withdrawn in 2020 and revived without notice. The Respondents opposed, urging the application was an appeal on the merits. The court framed two issues: extension of time and entitlement to certiorari and prohibition. The six-day delay was excused because the Applicant demonstrated, through the certification stamp, that he obtained the decision only on 2nd December 2025 despite due diligence, and no prejudice was shown. On the merits of the review, the court held the allegation of excess of jurisdiction unsubstantiated for want of a memorandum of appeal or official receipt; found no procedural impropriety in the Interested Party acting as a customary-law representative per Dominic Musei Ikombo v Kyule Makau; and found the Applicant was invited, attended and gave evidence at the hearing, hence no denial of fair hearing. Applying Municipal Council of Mombasa, the court held the application was really an appeal on the merits. Extension of time was allowed in terms of prayer 2, but the substantive orders were refused and the application dismissed with costs.

Key legal issues

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01

Extension of time for filing judicial review

Holding

Extension allowed where applicant could not, despite due diligence, have known of the decision in time and no prejudice was shown

Reasoning

The decision was made on 29th October 2025 and the application filed 17th December 2025, a delay of about six days beyond the six-week window under Rule 6 of the Fair Administrative Action Rules, 2024. The Applicant explained he only learnt of the decision on about 1st December 2025 through market gossip and obtained a certified copy on 2nd December 2025, borne out by the stamp of the 3rd Respondent. The Respondents showed no prejudice.

p. 6
02

Whether the Minister's appeal entertained outside the 60-day statutory period amounted to excess of jurisdiction

Holding

The allegation was unsubstantiated because the Applicant produced no memorandum of appeal or official receipt proving the filing date

Reasoning

Relying on section 109 of the Evidence Act, the court held the evidential burden lay on the Applicant to prove the filing was out of time. No memorandum of appeal or official receipt was availed, so the claim of excess of jurisdiction failed.

p. 9
03

Procedural impropriety in representation by a person without letters of administration

Holding

No procedural impropriety; proceedings before the Minister need not strictly adhere to Civil Procedure Act or Law of Succession, and customary-law representatives are recognised

Reasoning

The court applied Dominic Musei Ikombo v Kyule Makau, holding that under Section 13 of the Land Adjudication Act representatives under African customary law are recognised without letters of administration. The 1st Respondent verified the Interested Party's identity, the Applicant raised no objection during the hearing, and no new issues were heard.

04

Whether the Applicant was denied a fair hearing

Holding

No denial of fair hearing; the Applicant was invited, attended, gave evidence and cross-examined

Reasoning

Applying the audi alteram partem rule and the due process standard requiring reasonable notice with sufficient particulars, the court found from the certified proceedings that the Applicant was invited, attended the hearing on 21st August 2025, and both he and the Interested Party gave evidence. Review lies over process, not merits.

p. 11

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision itself
  • The burden of proving a particular fact lies on the person who wishes the court to believe in its existence
  • Proceedings before the Minister on appeal under the Land Adjudication Act do not require strict adherence to the Civil Procedure Act or Law of Succession; representatives under African customary law are recognised

Court orders

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  1. 1.Extension of time for lodging the judicial review application allowed in terms of prayer number 2
  2. 2.The application dismissed with costs
Jurisdiction invoked
Sections 7(a), 9(1), 10 and 12 of the Fair Administrative Action Act and Rules 4, 6(1)(2)(2), 11, 13(1) and (2) of the Fair Administrative Action Rules, 2024

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, "Mulinge v Cabinet Secretary, Ministry of Lands and Physical Planning & 5 others (Environment and Land Judicial Review Case E016 of 2025) [2026] KEELC 4700 (KLR)", Case Analysis (2026). ELC JR NO. E016 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4700/eng@2026-07-23

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