Mwereni Group Ranch

satised that the 1st and 2nd Respondents were properly served with the pleadings. Despite of the service, they refused, neglected and/or failed to le any responses. II. Description of the parties 5. The Ex – Parte Applicant was described as the Group Ranch incorporated under the Land (Group Representatives) Act, Cap. 287 of the Laws of Kenya and issued with a Certicate of Incorporation bearing numbers 0042 dated 22nd April, 2016. It is the absolute and legal proprietors of all that parcel of land known as “Kwale/Mwereni/14 measuring approximately 43,466 Hectares (approximately 107, 404.49 acres or thereabout) ) (Hereinafter referred to as “The Suit Land”). 6. The 1st Respondent is the Land Control Board established under the provisions of the Land Control Act, Cap. 302 of the Laws of Kenya to deal with all controlled transactions of all agricultural land as spelt out under the provisions of Section 6 of the said Act. Whilst the 2nd Respondent is a duly appointed Civil Servant designated as the deputy County Commissioner of Lunga Lunga Sub – County of the County of Kwale (No. 002) by the Public Service Commission under the provision of Articles 233, 234 and 235 of the Constitution of Kenya, 2010 to execute and perform assigned duties for the National Government of Kenya under the Ministry of Interior & National Administration. III. Court directions 7. Subsequently, on the 9th October, 2025 the Honourable Court in the absence of the 1st and 2nd Respondents xed the matter to proceed for hearing on 5th November, 2025. Additionally, guided by the principles of natural Justice, Equity and Conscience, the Ex – Parte Applicant was directed to serve the Respondents with the hearing notice. Indeed, this was executed eectively. 8. Through their duly appointed Learned Counsel, M/s. Kiti Advocate sought to have the matter adjourned on the ground that she had been called on 31st October, 2025 by the 2nd Respondent and belatedly informed about the matter. Admittedly, the Learned Counsel confessed to Court of not even bearing any pleadings over the case and hence needed 14 days leave to fully comply. She sought for adjournment. It is instructive to note that the Learned Counsel had not even led a Notice of Appointment nor Memorandum of Appearance as required by Law. 9. The application was vehemently opposed. The Court declined to allow the adjournment and it directed that the matter proceed accordingly. Ideally, the application was unopposed but nonetheless, the hearing took place whereby parties tendered brief oral submissions. Subsequently, the Honourable Court has made a decision on its own merit whatsoever. The Honourable Court shall be dealing with the issues indepth later on in this Judgement. IV. The Ex – Parte Applicant’s case: 10. The Ex - Applicant sought for the following orders:a. Spent. b. An order of Certiorari be and is hereby issued to remove and bring into the Environment and Land Court and quash the decision made by the 2nd Respondent on 22nd May, 2025 declaring as null and void the Letter of Consent to sub - divide property Land Reference Number Kwale/ Mwereni/14 issued by the 1st Respondent on 26th February, 2025. c. The costs of this suit be paid by the Respondents. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18641/eng@2025-12-17 2

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11. The Originating Summons was premised on the grounds, testimonial facts and the averments made out under the 19 Paragraphed adavit sworn by HASSAN NGOMBEKO VUDU dated the same day as the Ex – Parte application together with annextures marked as “HNV – 1” annexed thereto. The Aant averred, inter alia, that: a. He was an adult male of sound mind and understanding and the Chairman of Mwereni Group Ranch (Hereinafter referred to as “The Ex – Parte Applicant”). b. Thus, he was competent and duly authorized to swear this Adavit on behalf of the Ex - Parte Applicant. Further, that he was well acquainted with the facts of this matter. c. He had read the Originating Motion herein, the contents whereof were explained to him by the Advocate for the Ex – Parte Applicant, and that he fully understood the pleadings well. d. He swore this Adavit in support of the Originating Motion led herein. e. Annexed hereto and collectively marked as “HNV - 1” were the documents relied upon in support of this Adavit. f. The Ex – Parte Applicant was duly registered under the Land (Group Representatives) Act, Cap. 287 Laws of Kenya, and that a copy of the Certicate of Registration was annexed at page 1 of “HNV – 1” thereto. g. The Ex – Parte Applicant was the registered proprietor of all that parcel of land known as Land Reference Number Kwale/Mwereni/14, measuring approximately 43,466 hectares (approximately 107, 404.486 acres). (Hereinafter referred to as “The Suit Property”). h. He averred that the Certicate of Title in respect of the suit property is annexed at pages 2 to 5 of “HNV-1,” while the ocial search conrming ownership was annexed at pages 6 to 8 of “HNV – 1” thereof. i. The Ex – Parte Applicant had led the present Originating Motion seeking an Order of Certiorari to remove into this Honourable Court and quash a decision made by the 2nd Respondent on 22nd May 2025, which decision purported to declare null and void a consent issued by the 1st Respondent on 26th February 2025 for the sub - division of the suit property. j. The grounds upon which the order to quash the decision of the 2nd Respondent was sought were set out in the succeeding paragraphs of this Adavit. k. On 17th January 2025, the Ex – Parte Applicant duly submitted to the 1st Respondent an application for consent to sub - divide the suit property, a copy whereof was annexed at pages 9 to 10 of “HNV -1.” l. The Ex – Parte Applicant appeared before and was heard by the 1st Respondent, whereafter it was granted a Letter of Consent to sub - divide the suit property on 26th February 2025, which letter was annexed at page 11 of “HNV - 1.” m. On 22nd May 2025, the 2nd Respondent wrote to the Applicant notifying it that the Letter of Consent to sub - divide the suit property granted by the 1st Respondent on 26th February 2025 was null and void, and a copy of the said letter was annexed at page 12 of “HNV - 1.” n. He verily believed and as advised by their Advocate on record that the 2nd Respondent was not authorized under the Land Control Act, Cap. 302 Laws of Kenya, to make the decision sought to be quashed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18641/eng@2025-12-17 3

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o. Further, he averred that he verily believed, and based on the advise by their Advocate on record that the 2nd Respondent acted in excess of jurisdiction and/or power conferred under the Land Control Act, Cap. 302 Laws of Kenya, in making the impugned decision. p. He also stated that he verily believes that the decision sought to be quashed was materially inuenced by an error of law, for the reason that the 2nd Respondent had no lawful power to declare null and void a Letter of Consent validly issued by the 1st Respondent. q. The decision by the 2nd Respondent was made in bad faith and was unreasonable, in so far as it unjustly prejudiced the proprietary rights of the Applicant. r. He stated that it was lawful, just, and equitable that the orders sought in the Originating Motion be granted as prayed. V. The Response by the Attorney General. 12. As already indicated on 5th November 2025 when the matter was slatted for “Inter - Parte” hearing both Mr. Havi and Mr. Mbithi Advocates for the Ex – Parte Applicant while Ms. Kiti Advocate for the 1st and 2nd Respondents respectively were present. M/s. Kiti Advocate made an application for adjournment but which was vigorously opposed. Pursuant to that the Court delivered the following instant decision based on these orders that:a. This is a Court of record. Its evident that the Applicant instituted this suit vide ling of the originating summons under Rule 11 of the Fair Administrative Action Rules 2024 on the 1st July 2025. b. Clearly from the led Adavit of service dated 28th July 2025 sworn by Mr. Nelson Havi Advocate of the High Court indicated that the 1st and 2nd Respondents – through the oces of Lunga Lunga Land Control Board and the Deputy County Commissioner (DCC) were well and properly served with the led pleadings being the Certicate of Urgency dated 1st July, 2025 Originating Summons dated 1st, July, 2025; Supporting Adavit sworn on 1st July, 2025 and the mention notices for 7th July, 2025; despite of this the 1st and 2nd Respondents never took any steps as requested by law. c. Today their Counsel Ms. Kiti Advocate has only come to court not even having led a Notice of Appointment nor Memorandum of Appearance and even stated that she was called on 31st October, 2025 by the Deputy County Commissioner (DCCC) as requested to appear in court today and seek for more time – 14 days to le Replies. She had not even been given the pleadings. d. I fully concur with the Counsel for the Ex – Parte Applicant that the Respondent cannot hold on a matter for over 4 months of this magnitude without having taken action whatsoever. Matters need to be expedited. I therefore decline to grant the adjournment and direct the matter to proceed at 11.00 am today. VI. The Oral submissions by the Parties A. Oral Submissions by the Applicant 13. Taking that, despite of the service having been properly undertaken by the Ex – Parte Applicant and the Respondents failure to respond as required by law, being a land matter it had to proceed for hearing in accordance with the provision of Order 10 Rules, 4, 5, 6, 7, 8, 9 and 10 of the Civil Procedure Rules, https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18641/eng@2025-12-17 4

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2010. Based on the direction by Court, and due to the straight forward nature of the matter, parties were advised to only make oral as opposed to written submissions. 14. Thus, to begin with Mr. Havi Advocate, commenced by informing the Honourable Court that what was before it was the Originating Summons dated 1st July 2025. The suit was brought pursuant to the provision of Rule 11 of the Fair Administrative Rules, 2024. It sought for Judicial review orders of “Certiorari” to remove into this Court and quash the decision made by the 2nd Respondent, the Deputy County Commissioner (DCCC), Lunga Lunga, a sub – division within the County of Kwale, Numbers 002. (Hereinafter referred to as the 2nd Respondent”). According to the Learned Counsel, the decision was contained in a letter dated 22nd May 2025, declaring the Letter of Consent issued by the Lunga Lunga Land Control Board on 26th February 2025 in respect of all that parcel of land known as Land Reference Number Kwale/Mwereni/14 (Hereinafter referred to as “The Suit Land”) as null and void. 15. It was the contention of the Learned Counsel that the material facts in these proceedings were not disputed based on the following. Firstly, that the Applicant is the registered and absolute proprietor of the suit property, registered under “the Land (Group Representatives) Act, Cap. 287”, and holding a valid Certicate of Incorporation dated 22nd April 2016, and a Certicate of Title Deed issued to them on 14th November 1984. Clearly, it was evident they were absolute and registered legal absolute proprietors to the suit land and with all the indefeasible rights, title and interest vest in them by law and “prima facie” evidence to that eect. 16. Secondly, it was not disputed that on 17th January 2025, the Applicant formally applied to the 1st Respondent, the Lunga Lunga Land Control Board, for consent to sub - divide the suit property. The Applicant appeared before the Board. They were heard, and was subsequently issued with a Letter of Consent to sub - divide on 26th February 2025. 17. The Learned Counsel submitted that despite the lawful issuance of the Letter of Consent by the statutory body mandated under the Land Control Act, Cap. 302, the 2nd Respondent through a letter dated 22nd May 2025, purported to nullify the said consent without any legal basis, process, or hearing aorded to the Applicant. 18. It was the Learned Counsel’s assertion that the central issue for determination was whether the 2nd Respondent has any power under the Land Control Act, Cap. 302, to nullify, vary, suspend, or cancel a Letter of Consent which had been lawfully issued by a Land Control Board, the 1st Respondent. 19. The Counsel argued that under the Land Control Act, the powers of the Deputy County Commissioner are limited to those expressly provided by statute. That there was nowhere does the Act confer upon the 2nd Respondent authority to unilaterally invalidate a decision of the Land Control Board. 20. It was submitted that the actions of the 2nd Respondent were ultra vires, illegal, irrational, and procedurally unfair, thereby oending the principles of legality, reasonableness, and procedural fairness as enshrined under the provision of Article 47 of the Constitution of 2010 and the Fair Administrative Action Act, of 2015. 21. In conclusion, the Learned Counsel urged the Honourable Court to allow the application as prayed, quash the impugned decision, and award costs to the Applicant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18641/eng@2025-12-17 5

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B. Oral Submissions by the Respondents 22. In a brief rejoinder, M/s. Kiti, Learned Counsel appearing for the 1st and 2nd Respondents herein straight away conceded to the fact that that the Lunga Lunga Land Control Board is the statutory body mandated under the Land Control Act, Cap 302, to grant consent in respect of controlled transactions, including sub - division of agricultural land. 23. Further, the Counsel candidly conceded that the letter dated 22nd May 2025, the Deputy County Commissioner, in eect ostensibly cancelling the Letter of Consent issued by the Land Control Board was unlawful. The Counsel admitted that in law, the Deputy County Commissioner had no statutory powers under the Land Control Act to cancel, revoke, or nullify a consent lawfully issued by a Land Control Board. 24. The Counsel informed the Court that the Deputy County Commissioner had verbally indicated that the decision was motivated by security concerns, but conceded that even if such concerns existed, there were appropriate legal mechanisms and lawful procedures available to address the same, which ought to have been pursued instead of unilaterally cancelling the consent. 25. The Counsel stated that she had since advised the Deputy County Commissioner accordingly, and formally conceded to the position that the impugned decision was made without lawful authority. VII. Analysis and Determination. 26. I have keenly assessed and considered all the led pleadings herein, the oral submissions and in spite of the surrounding facts and inference of this case whereby the 1st and 2nd Respondent conceded to the wrong committed by their decision in the letter of 22nd May, 2025, the relevant provisions of Constitution of Kenya, 2010 and the statures thereof. 27. For the Honourable Court to reach at an informed, reasonable, just and Equitable decision, it has condensed the subject matter into the following three (3) issues for its determination. These are:a. Whether the Judicial review suit instituted by the Ex – Parte Applicant meets the threshold of such a suit and has merit whatsoever. b. Whether the Applicant is entitled to the reliefs sought c. Who will bear the costs of this ex parte application. ISSUE No. a). Whether the Judicial review suit instituted by the Ex – Parte Applicant meets the threshold of such a suit and has merit whatsoever. 28. Under this Sub heading, the Honourable Court will critically access whether the application by the Ex – Parte Applicant has merit or not. Ideally, having exhaustively set out the legal framework governing judicial review and the nature and scope of the prerogative writ of certiorari, this Court now turns to the application of the said principles to the facts and circumstances of the present case. 29. It is trite law that the court in exercising its jurisdiction in Judicial Review proceedings is not acting as an appellate court and judicial review remedies are only available to a party who has no other avenue of redress or where the other available remedies are not ecacious. In “Michael Mungai – Versus - https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18641/eng@2025-12-17 6

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Attorney General & 9 Others [2015] eKLR” Odunga J. observed as follows regarding the nature of judicial review orders, and I agree: ...Judicial Review, it has been said time and again is a relief of last resort and ought not to be Treated as an alternative mode of redress to remedies available under the Civil Procedure or process.” 30. I am also persuaded by the observation by R.E Aburih, J. in “Republic –Versus - Nairobi City County Government Ex Parte Ndiara Enterprises Limited [2017] eKLR” in which it was stated as follows:“ … It is also now settled law that where the constitution or any law provides a procedure for settlement of disputes, that procedure shall be followed before resort to the High Court or any other procedure provided by law. That, in essence, is the eect of Articles 50 (1) and 159 (2) of the Constitution which provides that: “50 (1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent or impartial tribunal or body…” 31. This is a judicial review motion seeking orders of certiorari. It is rst necessary to outline the place of judicial review. Judicial review is a discretionary remedy and it is not in all instances that the court will be persuaded to exercise its discretion to grant prerogative orders. There are situations and instances which would militate against the court exercising its jurisdiction in judicial review. One such instance, in my view, is where it is apparent that there is contention on ownership of land. 32. Article 47 of the Constitution grants every person the right to an administrative action that is expeditious, ecient, lawful, reasonable, procedurally fair and with written reasons if the administrative action is likely to adversely aect the person. 33. It is trite that where discretion is donated to a particular body, the Courts should exercise restraint and not readily accede to invitations to interfere with such powers and discretion. In the case of:“Municipal Council of Mombasa – Versus - Republic & Umoja Consultants Ltd Civil Appeal No. 185 of 2001” the Court of Appeal held: “ The Court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself such as whether there was or there was not sucient evidence to support the decision…” 34. However, as outlined in the “Judicial Review Handbook, 6th Edition” by Michael Fordham, on page 5, Judicial Review stands as a pivotal mechanism within Administrative Law, serving to uphold the Judiciary's Constitutional duty to guard against the misuse of power by public authorities. This process is a crucial safeguard for the rule of Law, ensuring that the public interest is maintained. It monitors the adherence to limits and obligations set by Parliament, directs public bodies to act within legal boundaries, guarantees that these entities are answerable to the law and not exempt from it, and safeguards individual rights. 35. The grounds upon which judicial review orders can be granted were set out in the case of “Pastoli – Versus - Kabale District Local Government Council and Others (2008) 2 EA 300” where it was held as follows: “ In order to succeed in an application for judicial review, the Applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18641/eng@2025-12-17 7

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impropriety …..illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Ocer of District interdicts a public servant on District Service Commission….irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in deance of law and acceptable moral standards………Procedural Impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be aected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision” 36. The Ex Parte Applicant contends that the Applicant is the registered proprietor of Land Reference Number Kwale/Mwereni/14, measuring approximately 43,466 hectares. On 17th January 2025, it applied to the 1st Respondent for consent to subdivide the property. The 1st Respondent, being the statutory body mandated under the Land Control Act, duly heard the Applicant and issued a Letter of Consent on 26th February 2025. 37. On 22nd May 2025, the 2nd Respondent purported to nullify the said consent. The Land Control Act does not confer upon the Deputy County Commissioner any authority to revoke or invalidate a consent issued by a Land Control Board. The 2nd Respondent’s action was therefore ultra vires, illegal, and procedurally unfair. Article 47 of the Constitution guarantees every person the right to fair administrative action that is lawful, reasonable, and procedurally fair. The 2nd Respondent’s unilateral decision violated this constitutional safeguard. Even if security concerns existed, lawful mechanisms were available, but none were pursued. 38. Counsel for the Respondents candidly conceded that the 2nd Respondent acted without lawful authority. This concession reinforces the Applicant’s case. 39. So that the Court is able to determine this issue there are these following issues for determination: - 40. a. Whether the 2nd Respondent had jurisdiction under the Land Control Act, Cap. 302, to nullify a consent issued by the 1st Respondent. b. Whether the decision of the 2nd Respondent was lawful, reasonable, and procedurally fair. I will start by analyzing whether a Deputy County Commissioner (DCC), acting as the 2nd Respondent, has jurisdiction under the Land Control Act (Cap. 302, Laws of Kenya) to nullify or revoke a Letter of Consent lawfully issued by a Land Control Board (LCB), acting as the 1st Respondent. The context is a judicial review application in which the DCC issued a letter declaring a previously granted consent for subdivision of land as null and void. The analysis focuses on the statutory framework of the Land Control Act, relevant case law, administrative law principles (including Article 47 of the Constitution and the Fair Administrative Action Act), and doctrines governing the limits of administrative authority and procedural fairness. The goal is to establish whether the DCC has any legal authority under Cap. 302 to interfere with or invalidate a decision of the LCB. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18641/eng@2025-12-17 8

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41. The Land Control Act establishes Land Control Boards (LCBs) as statutory bodies tasked with regulating transactions involving agricultural land in designated land control areas. Section 5 mandates the Cabinet Secretary to establish a land control board for every land control area or division, with membership as set out in the First Schedule. The First Schedule species that the District Commissioner (now Deputy County Commissioner, following administrative restructuring) or a District Ocer deputed in writing is the chairperson, alongside other public ocers and community representatives. 42. The LCB’s primary function is to consider and determine applications for consent to controlled transactions, including sales, transfers, leases, mortgages, exchanges, partitions, and subdivisions of agricultural land. 43. Section 6 of the Act provides that transactions aecting agricultural land—including subdivision— are void for all purposes unless the relevant LCB has given its consent in accordance with the Act. This requirement is central to the regulation of agricultural land transactions and is designed to prevent fragmentation, protect agricultural productivity, and ensure compliance with land use policies. 44. Section 8 outlines the procedure for applying for consent. Applications must be made in the prescribed form to the appropriate LCB within six months of the agreement for the controlled transaction. The LCB is empowered to either grant or refuse consent. Critically, Section 8(2) states: “ The land control board shall either give or refuse its consent to the controlled transaction and, subject to any right of appeal conferred by this Act, its decision shall be nal and conclusive and shall not be questioned in any court.” 45. Section 9 prescribes the criteria the LCB must consider in granting or refusing consent, including the economic development of the land, standards of good husbandry, and fairness of the transaction terms. 46. Sections 11 and 13 provide for appeals against refusal of consent. An applicant may appeal to the Provincial Land Control Appeals Board (now functionally replaced by county-level structures), and subsequently to the Central Land Control Appeals Board. Both sections contain ‘nal and conclusive’ clauses, stating that the decision of the appeals board ‘shall not be questioned in any court’. 47. Section 16 requires that every decision of a board be given in writing, signed by or on behalf of the chairperson, and that reasons for refusal or dismissal be stated. A copy of the decision must be delivered or posted to the applicant. 48. Section 20 mandates that the land registrar refuse to register any instrument eecting a controlled transaction unless satised that the required consent has been obtained. This provision underscores the centrality of LCB consent in the conveyancing process. 49. The Deputy County Commissioner (formerly District Commissioner) is designated as the chairperson of the LCB under the First Schedule. However, the DCC’s role is as part of the collective board, not as a unilateral decision-maker. The Act does not confer upon the DCC, acting in their individual administrative capacity outside the board, any statutory authority to review, revoke, or nullify a consent once granted by the LCB. 50. A careful reading of Cap. 302 reveals no provision empowering the DCC, acting alone or in an administrative capacity, to nullify or revoke a consent already granted by the LCB. The only mechanisms for challenging or reviewing an LCB decision are the statutory appeals to the Provincial and Central Land Control Appeals Boards. There is no statutory basis for administrative revocation by the DCC or any other ocer outside these appeal structures. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18641/eng@2025-12-17 9

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51. The ultra vires doctrine, foundational in administrative law, holds that a public authority may not act outside the powers conferred upon it by statute. Any purported exercise of power by the DCC to revoke LCB consent, absent express statutory authority, is ultra vires and therefore null and void. 52. In the case of “Republic – Versus – Chairman Manyatta Divisional Land Control Board [1999] KEHC 10 (KLR)” the Court emphasized that the LCB is a statutory body whose decisions are subject to judicial review only on grounds such as want or excess of jurisdiction, denial of natural justice, or errors on the face of the record. The court held that the chairman (District Commissioner or their depute) must act within the board’s collective authority and cannot unilaterally process applications or make decisions. Any such action is arbitrary, prejudicial, and an abuse of oce. 53. Similarly, in the case of “Republic – Versus - Kaplamai Land Control Board & another; Gichuhi & 2 others (Ex parte Applicants) [2025] KEELC 7236 (KLR)”, the Environment and Land Court reiterated that the powers of the LCB are governed strictly by the Land Control Act. The court underscored that the LCB must act within the law, and any decision made outside its statutory mandate or without adherence to procedural fairness is subject to judicial review and quashing by certiorari. The court also highlighted that the only recourse for aggrieved parties is through the statutory appeal process, not administrative revocation by individual ocers. 54. Further in the case of “Mutuku – Versus - Deputy County Commissioner Kilungu & 2 others [2025] KEELC 5277 (KLR)”, the Environment and Land Court dismissed a challenge to a Minister’s (DCC as delegate) decision under the Land Adjudication Act, but the reasoning is instructive: the court rearmed that judicial review is concerned with the process, not the merits, and that administrative ocers must act within their statutory jurisdiction. The court cited Pastoli v Kabale District Local Government Council, emphasizing that acting without jurisdiction or ultra vires is a ground for quashing administrative action. 55. The Land Control Act contains "nal and conclusive" clauses regarding LCB and appeals board decisions. Kenyan courts have consistently held that such ouster clauses do not preclude judicial review for excess of jurisdiction, breach of natural justice, or error of law. The courts will disregard ouster clauses where an administrative body acts outside its powers or in breach of procedural fairness. 56. In “Nyakinyua & Kang’ei Farmers Co. Ltd – Versus - Kariuki & Gathecha Resources Ltd”, the Court of Appeal held that nality clauses do not protect decisions made without jurisdiction or in breach of the law. The remedy of certiorari is never to be taken away except by the clearest words, and even then, courts will interpret such clauses in favor of access to justice and the rule of law. 57. The Constitutional right under Article 47 of the Constitution is both procedural and substantive, requiring transparency, notice, participation, and reasonableness in decision-making. Any administrative action that is arbitrary, unfair, or outside statutory mandate is subject to judicial review and invalidation. 58. Under the Fair Administrative Action Act (FAAA), 2015, Article 47 of the Constitution is operationalized and applies to all administrators exercising public power. The duty to give reasons for administrative decisions is now a constitutional and statutory requirement. Failure to provide reasons, or to act fairly, renders the decision susceptible to judicial review and quashing. 59. Administrative ocers must act strictly within the powers conferred by statute. Any purported exercise of power outside the statutory framework is ultra vires and void. This doctrine is central to the rule of law and the protection of individual rights against arbitrary state action. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18641/eng@2025-12-17 10

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60. I do take note however that there is no provision in the Land Control Act, or any other relevant statute, that empowers the DCC, acting outside the LCB, to revoke or nullify a consent once granted by the board. The DCC’s role is conned to chairing the LCB and participating in its collective decisionmaking. Once the board has lawfully granted consent, the only avenues for challenge are the statutory appeals or judicial review by the courts. 61. It is settled law that a statutory body may only act within the scope of the powers or duties conferred on it, and accordingly, where a body acts outside the powers which are prescribed for it, such an action is ultra vires and null and void. Likewise, a statutory body may interpret and determine the scope of its powers or duties incorrectly, and as a result, act beyond its powers. Put another way, a statutory body will act unlawfully if it incorrectly interprets a statutory provision as conferring on it a power or a duty to act, when such provision confers no such power or duty. See in this respect sections 12.05 to 12.07 of Judicial Review: Principles and Procedure (2013), by Jonathon Auburn, Jonathan Moet and Andrew Sharland, and section 7(2)(a) (i) and (ii) of the Fair Administrative Action Act, which makes such actions or decisions reviewable by the courts.(See “Attorney General & another – Versus Commission on Administrative Justice [2024] KECA 1157 (KLR)”). 62. In “R. (on the application of Pis Elm Ltd) – Versus - Commission for Local Administration in England [2023] EWCA Civ 486”, the English Court of Appeal held that, absent express statutory authority, a public authority has no implied power to withdraw or revoke a decision once made. The proper remedy for a legally awed decision is judicial review, not administrative rescission. This principle is persuasive in the Kenyan context and has been adopted in local jurisprudence. 63. Further, if a party has obtained LCB consent through due process, they acquire a legitimate expectation that the consent will not be arbitrarily revoked. Any purported revocation by the DCC, without statutory authority or due process, constitutes an abuse of power and is reviewable for error of law and procedural impropriety. 64. On the procedural fairness and requirements before revoking a consent, I do take cognizance that even if there were statutory authority to revoke consent (which there is not), the principles of procedural fairness would require that the aected party be given prior notice, an opportunity to be heard, and written reasons for the decision. These requirements are enshrined in Article 47, the FAAA, and the common law rules of natural justice. (See “Kariuki – Versus – Land Control Board of Kakuzi/ Ithanga (Environment and Land Judicial Review Case E002 of 2023) (25{{^}} January 2024) (Judgment)”. 65. An administrative action, as dened under the Fair Administrative Action Act 2015, includes the power, functions, and or duties of authorities or quasi-judicial tribunals; it also contains acts, omissions, or decisions of a body or authority aecting the legal right or interest of any person whom such action relates. 66. Where an administrative ocer purports to revoke LCB consent without authority or due process, the aggrieved party may seek judicial review by way of certiorari to quash the decision, prohibition to prevent further unlawful action, and mandamus to compel performance of statutory duties. The courts have consistently granted such remedies where administrative action is ultra vires, procedurally unfair, or irrational. 67. Before we understand the purported injustice the Applicant contends, it is best to examine the eect of the LCB Consent on Land Registration and Registrar Actions. Section 20 of the Land Control Act requires the land registrar to refuse registration of any instrument eecting a controlled transaction unless satised that the required consent has been obtained. Once valid consent is issued, the registrar is bound to register the transaction, and has no authority to question the merits of the LCB’s decision. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18641/eng@2025-12-17 11

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68. The registrar may only cancel or refuse registration in accordance with the law, such as where consent was obtained by fraud or misrepresentation, or where a court order so directs. Administrative revocation by the DCC is not a recognized ground for cancellation. (See Francis Gacheru Mwai – Versus - Kelvin Muchira Kariuki [2020] KEELC 2917 (KLR)”. 69. It is also important to note that the Land Act and Land Registration Act complement the Land Control Act but do not alter the exclusive jurisdiction of the LCB over controlled transactions. The Land Regulations, 2017, reinforce the requirement for LCB consent for subdivision and transfer of agricultural land, and the registrar’s duty to ensure compliance before registration. 70. The gravamen of the Applicant’s case is to challenge the decision by the that the 2nd Respondent, vide a letter dated 22nd May, 2025. The Applicant holds that the 2nd Respondent acted without jurisdiction, in excess of statutory authority, and in error of law by purporting to declare null and void a Letter of Consent to sub - divide the suit land which had lawfully been issued by the 1st Respondent, the Lunga Lunga Land Control Board, on 26th February 2025. 71. For ease of reference, the Honourable Court has proceeded to re – produce the said letter hereinbelow verbatim:Oce Of The President Ministry Of Interior & National Administration Telegrams"districter" Lunga Deputy County Commissioner Telephone:0700115461 Lungalunga Sub County Email-dcclungalunga@gmail.com P.o Box 104 Lungalunga 22Nd May,2025 Ref No.sf/agr/11/1 Vol.i/105 Mwereni Group Ranch Box 13 Lungalunga Re:notication Of Nullication Of Land Consent And Entitlement The above subject matter refers, I am writing to you concerning the land consent and entitlement currently held by your committee. After conducting a public meeting on 11th March 2025 at Mwangulu, we have had engagements and discussions regarding the validity and implications of the land consent in question. Subsequently, a technical committee was formed, chaired by the County Commissioner, to oversee the issues pertaining to the land matter and settlement. It is essential to inform you that, following these deliberations and the ongoing securitization process, the consent currently in your possession has been declared null and void. This decision was made in consideration of the community's interests and in accordance with the established legal framework. We recognize that this may prompt questions or concerns from your committee. Therefore, we encourage you to seek clarication from the technical committee, which is well-equipped to address any grievances or inquiries related to this matter. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18641/eng@2025-12-17 12

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Thank you for your attention this important issue. R.S Shunnet Ag. Deputy County Commissioner Lungalunga Sub County 72. In this instant, the Deputy County Commissioner, acting as the 2nd Respondent, has no legal authority under the Land Control Act (Cap. 302) to nullify or revoke a Letter of Consent lawfully issued by a Land Control Board, acting as the 1st Respondent. The DCC’s role is conned to chairing the LCB as part of its collective decision-making process. Once the LCB has granted consent, the only lawful avenues for challenging or reviewing that decision are the statutory appeals provided in the Act or judicial review by the courts. Any purported revocation or nullication of consent by the DCC, acting administratively or unilaterally, is ultra vires, null, and void. 73. Such action also violates the constitutional right to fair administrative action under Article 47 and the Fair Administrative Action Act, as it is not authorized by law, is procedurally unfair, and undermines legitimate expectations. 74. Accordingly, any letter or decision by the DCC purporting to revoke or nullify LCB consent should be quashed by the court as ultra vires and unlawful. The DCC, or any other administrative ocer, must act strictly within the powers conferred by statute and in accordance with the principles of procedural fairness, transparency, and accountability. 75. It is not in dispute that the 1st and 2nd Respondents were properly served with all the pleadings as evidence from the various Adavit of Service pursuant to the provision of Order 5 Rule 15 of the Civil Procedure Rules, 2010. Despite of this, the Respondent failed, neglected and/or refused to respond to the pleadings as provided for in law. Being a land matter, it had to proceed for hearing in accordance with the provision of Order 10 Rules, 4, 5, 6, 7, 8, 9 and 10 of the Civil Procedure Rules, 2010. Similarly, its another undisputed fact is that the Ex – Parte Applicant is the registered proprietor of the suit property. This fact is borne out by the Certicate of Title lawfully issued to them and a copy of the Certicate of the Ocial Search annexed to the Supporting Adavit. These empirical documentary evidence on ownership of the suit land documents were never controverted by the 1st and 2nd Respondents. It is also common ground that the Applicant applied for consent to subdivide the suit property, appeared before the 1st Respondent, and was duly granted a Letter of Consent on 26th February 2025 76. The central question, therefore, is whether the 2nd Respondent had the legal authority to nullify or invalidate a consent issued by a Land Control Board under the Land Control Act, Cap 302 Laws of Kenya, Article 47 of the Constitution of Kenya, 2010 guarantees every person the right to administrative action that is lawful, reasonable, and procedurally fair. The Fair Administrative Action Act, 2015 operationalizes Article 47, requiring that: 77. a. Decisions must be made within the scope of lawful authority. b. Persons aected must be given prior notice and an opportunity to be heard. c. Decisions must be rational, proportionate, and not arbitrary. The Land Control Act is explicit on the establishment, composition, powers, and functions of Land Control Boards. Under Sections 5, 6, and 8 of the Act, the mandate to grant or refuse consent in respect of controlled transactions, including subdivision of agricultural land, lies exclusively with the Land Control Board. The statute does not confer upon the Deputy County Commissioner, or any other https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18641/eng@2025-12-17 13

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administrative ocer, the power to unilaterally nullify, cancel, or invalidate a consent duly issued by a properly constituted Land Control Board. 78. The Land Control Act, Cap. 302 vests the power to grant or refuse consent in the Land Control Board. It provides appellate mechanisms under Section 9, but nowhere does it empower the Deputy County Commissioner to revoke or nullify a consent. 79. In order to fully appreciate the substratum of this case, it is imperative that the Court deliberates on the concept of the controlled land within agricultural areas and the transactions thereon in Kenya. They are governed by the Land Control Act, Cap. 302 which is the law regulating transactions in agricultural land. Its commencement date was 12th December, 1967. Its preamble reads as follows: “ An Act of Parliament to provide controlling transactions in agricultural land” 80. The following are the except of the Land Control Act related to this matter: Part Iii – Land Control Boards 5. Establishment of land control boards (1) The Cabinet Secretary shall, by notice in the Gazette, establish a land control board for every land control area or, where it is divided into divisions, for each division. (2) The membership of a land control board shall be as provided in in the First Schedule of this Act. Part IV – Control Of Dealings In Agricultural Land 6. Transactions aecting agricultural land (1) Each of the following transactions, that is to say— (a) the sale, transfer, lease, mortgage, exchange, partition or other disposal of or dealing with any agricultural land which is situated within a land control area; (b) the division of any such agricultural land into two or more parcels to be held under separate titles, other than the division of an area of less than twenty acres into plots in an area to which the Development and Use of Land (Planning) Regulations, 1961 (L.N. 516/1961) for the time being apply; (c) the issue, sale, transfer, mortgage or any other disposal of or dealing with any share in a private company or co-operative society which for the time being owns agricultural land situated within a land control area, is void for all purposes unless the land control board for the land control area or division in which the land is situated has given its consent in respect of that transaction in accordance with this Act. (2) For the avoidance of doubt it is declared that the declaration of a trust of agricultural land situated within a land control area is a dealing in that land for the purposes of subsection (1). (3) This section does not apply to— (a) the transmission of land by virtue of the will or intestacy of a deceased person, unless that transmission would result in the division of the land into two or more parcels to be held under separate titles; or https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18641/eng@2025-12-17 14

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(b) a transaction to which the Government or the Settlement Fund Trustees or (in respect of Trust land) a county council is a party. [Act No. 13 of 1980, Sch., Act No. 22 of 1987, Sch., Act No. 13 of 1988, Sch.] 7. Recovery of consideration If any money or other valuable consideration has been paid in the course of a controlled transaction that becomes void under this Act, that money or consideration shall be recoverable as a debt by the person who paid it from the person to whom it was paid, but without prejudice to section 22. Part V – Granting Of Consent 8. Application for consent (1) An application for consent in respect of a controlled transaction shall be made in the prescribed form to the appropriate land control board within six months of the making of the agreement for the controlled transaction by any party thereto: Provided that the High Court may, notwithstanding that the period of six months may have expired, extend that period where it considers that there is sucient reason so to do, upon such conditions, if any, as it may think t. 9. (2) The land control board shall either give or refuse its consent to the controlled transaction and, subject to any right of appeal conferred by this Act, its decision shall be nal and conclusive and shall not be questioned in any court. (3) For the purposes of subsection (1), an application shall be deemed to be made when it is delivered to the authority prescribed in the manner prescribed. (4) An application under subsection (1) shall be valid notwithstanding that the agreement for the controlled transaction is reduced to writing, or drawn up in the form of a legal document, only after the application has been made. Granting or refusal of consent (1) In deciding whether to grant or refuse consent in respect of a controlled transaction, a land control board shall— (a) have regard to the eect which the grant or refusal of consent is likely to have on the economic development of the land concerned or on the maintenance or improvement of standards of good husbandry within the land control area; (b) act on the principle that consent ought generally to be refused where— (i) (ii) the person to whom the land is to be disposed of— (A) is unlikely to farm the land well or to develop it adequately; or (B) is unlikely to be able to use the land protably for the intended purpose owing to its nature; or (C) already has sucient agricultural land; or the person to whom the share is to be disposed of— https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18641/eng@2025-12-17 15

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(c) (2) 81. (A) already has sucient shares in a private company or cooperative society owning agricultural land; or (B) would, by acquiring the share, be likely to bring about the transfer of the control of the company or society from one person to another and the transfer would be likely to lower the standards of good husbandry on the land; or (iii) the terms and conditions of the transaction (including the price to be paid) are markedly unfair or disadvantageous to one of the parties to the transaction; or (iv) in the case of the division of land into two or more parcels, the division would be likely to reduce the productivity of the land; refuse consent in any case in which the land or share is to be disposed of by way of sale, transfer, lease, exchange or partition to a person who is not— (i) a citizen of Kenya; or (ii) a private company or co-operative society all of whose members are citizens of Kenya; or (iii) group representatives incorporated under the Land (Group Representatives) Act (Cap. 287); or (iv) a state corporation within the meaning of the State Corporations Act (Cap. 446). Where an application for the consent of a land control board has been refused, then the agreement for a controlled transaction shall become void— (a) on the expiry of the time limited for appeal under section 11; or (b) where an appeal is entered under section 11 and dismissed, on the expiry of the time limited for appeal under section 13; or (c) where a further appeal is entered under section 13 and dismissed, on that dismissal. Where a party is aggrieved by a decision of a Land Control Board, the Act provides a clear appellate mechanism. Section 11 of the Land Control Act stipulates that any person aggrieved by the decision of a Land Control Board may appeal to the Provincial Land Control Appeals Board (now the County Land Control Appeals Board), and thereafter to the Central Land Control Appeals Board. At no point does the statute envisage or permit an administrative override by the 2nd Respondent. Part VI – Provincial Land Control Appeals Board 10. Establishment of provincial land control appeals boards (1) The Cabinet Secretary shall establish for each province which contains a land control area, in consultation with the Provincial Commissioner of that province, a provincial land control appeals board. (2) The membership of a provincial land control appeals board shall be as provided in paragraph 2 of the First Schedule. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18641/eng@2025-12-17 16

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11. Appeal to provincial land control appeals board (1) Where a land control board refuses to grant consent in respect of a controlled transaction, the applicant may, within thirty days of the copy of the board’s decision being delivered or posted under section 16(2) of this Act, appeal to the provincial land control appeals board for the province in which the land in question is situated. (2) A provincial land control appeals board shall, in its absolute discretion, hear and determine all appeals made to it under subsection (1), and, subject to the right of appeal conferred by section 13, the decision of a provincial land control appeals board shall be nal and conclusive and shall not be questioned in any court. Part VII – Central Land Control Appeals Board 12. 13. Establishment of central land control appeals board (1) There is hereby established a central land control appeals board. (2) The membership of the central land control appeals board shall be as provided in the First Schedule. (3) The Commissioner of Lands shall be the secretary of the Central land control appeals board, and shall attend and may speak at meetings, but may not vote. Appeal to central land control appeals board (1) Any person whose appeal has been dismissed by a provincial land control appeals board may, within thirty days of the copy of the board’s decision being delivered or posted under section 16(2) of this Act, appeal to the central land control appeals board. (2) The central land control appeals board shall, in its absolute discretion, hear and determine all appeals made to it under subsection (1) of this section, and its decision of the central land control appeals board shall be nal and conclusive and shall not be questioned in any court. 82. The 1st Respondent herein is bound to consider the Applicant’s application for consent for the sub – division of the suit land for purposes of allocation of land t its registered members in accordance with the laid – down provisions of the Law and give reasons in writing, and failure to do so would amount to abuse of discretion. These legal prepositions and the board having rendered its decision have been strongly held in several cases by the Court of Appeal. (See the cases of “Republic – Versus - Kenya National Examination Council, Ex Parte Gathenji & others Civil Appeal No, 266 0f 1996”; “Macharia Mwangi Maina & 87 Others – Versus – Davidson Mwangi Kariri (2014) eKLR”; “David Ole Tukai – Versus – Francis Arap Muge & 2 Others (214) eKLR”; “CA of 2015 (Eldoret) - Willy Kimutai Kitilit – Versus – Michael Kibet (2018) KECA 573 (KLR). 83. The application is in an annexture marked as “HNV – 1” from pages 9 to 10 which is dated 17th January 2025. The decision of the board was then granted through a letter of consent to subdivide the property on 26th February 2026. The letter is exhibited at page 11 of annaexture marked as “HNV – 1”. 84. The decisions of the board are guided by the provision of Section 16 of the Land Control Board Act which provides as follows:16. Decisions of boards https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18641/eng@2025-12-17 17

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85. (1) Every decision of a board shall be given in writing in the prescribed manner and shall be signed by or on behalf of the Chairperson or other person presiding, and where consent is refused or an appeal is dismissed the reasons for the refusal or dismissal shall be stated in the decision. (2) A copy of the decision shall in every case be delivered or sent by post to the applicant and, in the case of an appeal, to the board whose decision is appealed against. The rst schedule of the Land Control Board Act provides for membership of the boards; Membership Of Land Control Board 1. A land control board shall consist of— (a) the District Commissioner of the district in which the land control area or division is situated, or a District Ocer deputed by him in writing, who shall be Chairperson; (b) not more than two other public ocers; (c) two persons nominated by the county council having jurisdiction within the area of jurisdiction of the board; and (d) not less than three and not more than seven persons resident within the area of jurisdiction of the board, all appointed by the Cabinet Secretary: Provided that— 2. (i) not less than eight and not more than twelve persons shall be appointed as members of the board; and (ii) more than one-half of the members of the board shall be owners or occupiers of agricultural land within the area of jurisdiction of the board. A provincial land control appeals board shall consist of— (a) the Provincial Commissioner, who shall be Chairperson; (b) not more than two other public ocers appointed by the Cabinet Secretary; and (c) not less than two and not more than ve persons appointed by the Cabinet Secretary: Provided that more than one-half of the members of the board shall be owners or occupiers of agricultural land within the province. 3. The central land control appeals board shall consist of— (a) the Cabinet Secretary, who shall be Chairperson; (b) the Cabinet Secretary for the time being responsible for economic planning; (c) the Cabinet Secretary for the time being responsible for agriculture; (d) the Cabinet Secretary for the time being responsible for home aairs; (e) the Cabinet Secretary for the time being responsible for co-operatives and social services; and https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18641/eng@2025-12-17 18

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(f) 4. the Attorney-General. Notwithstanding the foregoing provisions of this Schedule, no person shall be appointed a member of more than one board. 86. Thus, in application of these provisions of the law, this Honourable Court therefore nds that the action taken by the 2nd Respondent vide the letter dated 22nd May 2025 was ultra vires, illegal, capricious and made without jurisdiction. Jurisdiction is everything; without it, a public ocer must down his tools. Any decision made without jurisdiction is nullity ab initio and cannot be allowed to stand. The 2nd Respondent as the Chairperson of the Lunga Lunga Land Control Board had already issued the collective decision of the board which was granted through a Letter of Consent to cause the sub – division of the suit land on 26th February 2026. The letter is exhibited at page 11 of annexture marked as “HNV – 1”. 87. Further, the impugned decision by the 2nd Respondent oends the principle of legality, which is a cornerstone of administrative law and constitutional governance under the provision of Articles 10 and 47 of the Constitution of Kenya, 2010. Public ocers and administrative bodies must act strictly within the connes of the law. To do otherwise is to descend into arbitrariness, personal whim and abuse of power. 88. The Honourable Court is also persuaded that the decision of the 2nd Respondent was tainted with irrationality and unreasonableness, in that it purported to extinguish a valid proprietary and statutory right without due process, without aording the Applicant a hearing, and without reference to any lawful authority. Such conduct squarely violates the rules of natural justice and the right to fair administrative action. 89. In this instant case, the 1st Respondent (Land Control Board) lawfully issued a Letter of Consent on 26th February 2025 after hearing the Applicant.The 2nd Respondent (Deputy County Commissioner), by letter dated 22nd May 2025, purported to declare that consent null and void. 90. From the extensive analysis we have done on the duties of the 2nd Respondent herein, the decision was unlawful as the 2nd Respondent acted outside the powers conferred by Cap. 302. No statutory provision authorizes such interference. The decision was arbitrary, unsupported by evidence or legal justication, and ignored the Applicant’s proprietary rights.It was contrary to the principles of natural Justice. The Applicant was not aorded a hearing before the consent was nullied. The unilateral cancellation violated the principles of natural justice and Article 47. 91. For the reasons adduced herein, the Court nds that the decision of the 2nd Respondent was neither lawful, reasonable nor procedurally fair. It was made in excess of jurisdiction, in violation of constitutional and statutory safeguards, and unjustly prejudiced the Applicant’s proprietary rights. ISSUE No. b). Whether the Applicant is entitled to the reliefs sought? 92. On the question of procedural propriety, there is no evidence that the Applicant was accorded an opportunity to be heard before the impugned decision was made. The unilateral declaration that the consent was “null and void” was communicated by way of a letter, without reasons grounded in law and without adherence to any known statutory procedure. This procedural impropriety alone is sucient to attract the intervention of this Court. The principal remedies are: a. Certiorari: To quash the unlawful decision of the DCC purporting to revoke LCB consent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18641/eng@2025-12-17 19

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b. Prohibition: To prevent the DCC or other administrative ocers from implementing the unlawful revocation. c. Mandamus: To compel the registrar or LCB to act in accordance with the law and recognize the valid consent. d. Declarations and Injunctions: As appropriate, to clarify rights and prevent further unlawful action. e. Compensation: In appropriate cases, for loss suered due to maladministration. 93. It is important to note the FAAA requires exhaustion of internal remedies where available. However, where the administrative action is ultra vires or there is no eective internal remedy, the courts may entertain judicial review directly. 94. The Ex Parte Applicant has sought for the following orders: - 95. a. Spent. b. An order of Certiorari be and is hereby issued to remove and bring into the Environment and Land Court and quash the decision made by the 2nd Respondent on 22nd May, 2025 declaring as null and void the Letter of Consent to sub - divide property Land Reference Number Kwale/ Mwereni/14 issued by the 1st Respondent on 26th February, 2025. c. The costs of this suit be paid by the Respondents. The prerogative writs of “Certiorari” derives from the Latin word “Certiorari” which means to be certied, informed, appraised or shown. Both in its embryonic days and today, the order, initially and prerogative writ was inferior courts and required the proceedings of that to be transferred to the High Court and examined for validity. It meant the decision would be quashed. From the Provisions of Order 53 of the Civil Procedure Rules, 2010, the Applicant ought to move court within a period of six (6) months from the time the order, decree, Judgment, conviction or other proceeding was made. Under the provision of Order 53 Rule 7 of Civil Procedure Rules, which provides:1. In the case of an application for an order of certiorari to remove any proceedings for the purpose of their being quashed, the applicant shall not question the validity of any order, warrant, commitment, conviction, inquisition or record, unless before the hearing of the motion he has lodged a copy thereof veried by adavit with the registrar, or accounts for his failure to do so to the satisfaction of the High Court. 2. Where an order of certiorari is made in any such case as aforesaid, the order shall direct that the proceedings shall be quashed forthwith on their removal into the High Court. 96. This provision, requires that any party seeking an order of Certiorari must annex to his application a copy of the order or decision he seeks to challenge or if does not, he must give to court a satisfactory reason for that failure. Order 53 Rule 7 is a precondition to seeking an order of Certiorari and failure to comply renders the entire application incompetent since the court is not in a position to determine whether there in fact existed an order capable of being quashed. The rationale behind it is to enable court satisfy itself of the existence of the orders or decision their contents and whether the application was led in time. 97. The Applicant has also complied with the procedural requirements under Order 53 of the Civil Procedure Rules. The impugned decision was annexed to the Supporting Adavit, and the application https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18641/eng@2025-12-17 20

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was led well within the six-month statutory period. The Court is therefore satised that the application is properly before it and is not incompetent. 98. In light of the foregoing, this Court nds and holds that the Ex – Parte Applicant has eectively demonstrated, to the required standard, that the decision of the 2nd Respondent was tainted with illegality, irrationality, and procedural impropriety, and is therefore amenable to being brought to this Court to be quashed by the prerogative writ/order of “Certiorari”. ISSUE No. c). Who will bear the costs of this Ex - Parte application 99. It is now well established that the issue of Costs is at the discretion of the Court. Costs mean the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The Black Law Dictionary denes cost to means:“ the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”. 100. The proviso of Section 27 of the Civil Procedure Act, Cap. 21 provides as follows:“ (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.” 101. By the event, it means the outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus Nairobi City County Government [2018] eKLR and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR, the court rearmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 102. In “Machakos ELC Pet No. 6 of 2013 Party of Independent Candidate of Kenya & another – Versus Mutula Kilonzo & 2 others [2013] eKLR” quoted the case of “Levben Products – Versus -Alexander Films (SA) (PTY)Ltd 1957 (4) SA 225 (SR) at 227” the Court held:“ It is clear from authorities that the fundamental principle underlying the award of costs is two-fold. In the rst place the award of costs is matter in which the trial Judge is given discretion (Fripp – Versus - Gibbon & Co., 1913 AD D 354). But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could have come to the conclusion arrived at….In the second place the general rule that costs should be awarded to the successful party, a rule which should not be departed from without the exercise of good grounds for doing so.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18641/eng@2025-12-17 21

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103. As already graphically evidenced and attested in these proceedings, the actions of the Respondents, particularly the 2nd Respondent, necessitated the ling of this suit. The Applicant was forced to invoke the supervisory jurisdiction of this Court to vindicate its rights. Accordingly, the 2nd Respondent shall personally bear the costs of this suit. VIII. Conclusion and disposition. 104. Ultimately, having caused such an in-depth analysis to the framed issues herein, on the Preponderance of Probabilities and the balance of convenience, for avoidance of doubt, the Honourable Court accordingly proceeds to issue the following specic orders: a. That Judgement be and is hereby entered in favour of the Ex – Parte Applicant based on the Originating Summons dated 1st July, 2025. b. That an order of Certiorari be and is hereby issued removing into this Honourable Court and quashing the decision made by the 2nd Respondent on 22nd May 2025, purporting to declare null and void the Letter of Consent to sub - divide Land Reference Number Kwale/ Mwereni/14 issued by the 1st Respondent on 26th February 2025. c. That for avoidance of doubt, a declaration be and is hereby issued that the Letter of Consent to sub - divide Land Reference Number Kwale/Mwereni/14 issued by the 1st Respondent on 26th February 2025 remains valid, lawful, and of full legal eect, unless set aside through lawful procedures provided under the Land Control Act. d. That the costs of this suit to be awarded to the Ex – Parte Applicant and shall be borne by the 2nd Respondent. It Is Ordered Accordingly. JUDGEMENT DELIVERED VIRTUALLY THROUGH THE MICRO SOFT TEAMS, SIGNED AND DATED AT KWALE THIS ...17TH.....DAY OF .... DECEMBER .... 2025 ………………….…………. HON. MR. JUSTICE L.L NAIKUNI ENVIRONMENT AND LAND COURT, AT KWALE Judgement delivered in the presence of: a. Mr. Daniel Disii, the Court Assistant. b. Mr. Mbithi and Mr. Ashioya Advocates holding brief for Mr. Nelson Havi, Senior Counsel & Advocate for the Ex – Parte Applicant. c. No appearance for the 1st and 2nd Respondents. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18641/eng@2025-12-17 22

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