M’muraga & another v Deputy County Commissioner, Tigania Central Sub-County & another (Environment and Land Judicial Review Case E023 of 2025) [2026] KEELC 2791 (KLR) (29 April 2026) (Ruling) Neutral citation: [2026] KEELC 2791 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MERU ENVIRONMENT AND LAND JUDICIAL REVIEW CASE E023 OF 2025 BM EBOSO, J APRIL 29, 2026 BETWEEN JACOB M’LIBURU M’MURAGA ................................ 1ST EX PARTE APPLICANT SAMUEL MBITI LIBURU ............................................ 2ND EX PARTE APPLICANT AND DEPUTY COUNTY COMMISSIONER, TIGANIA CENTRAL SUBCOUNTY ............................................................................................... RESPONDENT AND LUCY WAIRIMU (SUED AS THE LEGAL REPRESENTATIVE OF THE ESTATE OF JOHN NDUATI – DECEASED) ....................................... INTERESTED PARTY RULING 1. On 9/2/2026, this court rendered an ex-tempore Ruling on the exparte applicants’ chamber summons dated 10/12/2025. Through the Chamber Summons, the exparte applicants had sought, among other reliefs, leave to initiate judicial review proceedings. The chamber summons was disposed in the following verbatims terms: “ (a) The ex-parte applicants are granted leave in terms of prayer (i). (b) The substantive motion shall be filed and served within 21 days. In default, the above leave shall lapse. (c) Subject to compliance with (b) above, the above leave shall operate as an order staying implementation of the Minister’s decision dated 17/7/2025 in Appeal No. 209 of 2024. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2791/eng@2026-04-29 1
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(d) Unless extended by this court, the stay order shall lapse on expiry of 9 months from today.” 2. On the same day [9/2/2026], the court listed this matter for directions on 13/4/2026. When the matter came up for directions on 13/4/2026, Ms Esther Wairimu, Senior State Counsel [counsel for the respondent] submitted that the leave granted on 9/2/2026 had lapsed without the ex-parte applicants filing and serving the substantive motion as ordered by the court. It was the respondent’s case that the leave having lapsed on expiry of 21 days, this court had no jurisdiction to entertain these proceedings. 3. In response, Ms Mugo [counsel for the ex-parte applicants] submitted that the substantive motion was uploaded on 4/3/2026, which was one day after expiry of the 21 days period. She further stated that filing fees relating to the substantive motion was assessed and paid at the stage of filing the chamber summons seeking leave. Counsel argued that the one day delay was minimal and should be ignored in line with Article 159(2) of the Constitution. She urged the court to deem the motion as “duly filed”. 4. Through this ruling, the court is invited to determine whether it is seized of a competent judicial review motion that would form the basis of a judicial review hearing. 5. The court was moved and exercised jurisdiction under Order 53 of the Civil Procedure Rules. Order 53 rule 3(1) of the Civil Procedure Rules provides the following framework on timelines for filing a substantive motion: “ When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within twenty-one days by notice of motion to the High Court, and there shall, unless the Judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for the hearing.” 6. The mandatory requirement of filing the substantive notice of motion within twenty-one days from the date of grant of leave was emphasized by the Court of Appeal in Wilson Osolo v John Ojiambo Ochola & another [1996] eKLR as follows: “ It was a mandatory requirement of Order 53 rule 3(1) of Civil Procedure Rules then (and it is now again so) that the notice of motion must be filed within 21 days of grant of such leave. No such notice of motion having been apparently filed within 21 days of 15th February, 1982 there was no proper application before the Superior Court. This period of 21 days could have been extended by a reasonable period had there been an application under Order 49 of the Civil Procedure Rules. There was no such application save the one dated 28th April, 1994. That came too late in the day in any event and the learned Judge erred in even considering the extension of time some 12 years after the event.” 7. It is clear from the submissions of counsel for the ex-parte applicants that the above timelines were not adhered to. Secondly, it is clear from the order that was issued by the court that upon expiry of the period of 21 days [reckoned from 9/2/2026], the leave that was granted in this cause lapsed. 8. The leave having lapsed on 2/3/2026, there was no leave upon which to anchor the substantive motion that was filed on 4/3/2026. To bring a competent judicial review motion under Order 53 of the Civil Procedure Rules, there must be in place leave. The result is that the Notice of Motion dated 4/3/2026 is fatally defective for want of leave. Consequently, the same is hereby struck out. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2791/eng@2026-04-29 2
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9. The general principle on costs is that costs follow the event. There is no proper ground to warrant a departure from the general principle. Consequently, the ex-parte applicants shall bear costs of this judicial review cause. DATED, SIGNED AND DELIVERED AT MERU THIS 29TH DAY OF APRIL, 2026. B M EBOSO [MR] JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2791/eng@2026-04-29 3
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