Mukuna (As the Person Representative of the Estate of the Late Alice Kasikwa) v Cabinet Secretary, Ministry of Lands and Physical Planning & 7 others (Environment and Land Judicial Review Case E005 of 2025) [2026] KEELC 3066 (KLR)

MUKII MUKUNA ............................................................. 2ND INTERESTED PARTY NDITI MUKUNA ............................................................. 3RD INTERESTED PARTY JUDGMENT 1. This is a judgment in respect of an originating summons dated 28th March, 2025 in which the Applicant sought the following relief: 1. Spent 2. That the time for lodging this judicial review application be extended in favour of the Applicant to challenge the decision/judgment of the 1st and 2nd Respondents which was made on 24th October, 2024 in the absence of and without the knowledge of the Applicant in Adjudication Land Appeal to the Minister Case Number 256 of 1990 with respect to the Uvete Adjudication Section situated within Makueni County, or in the alternative, this judicial review application be deemed as properly filed under the doctrine of discoverability. 3. Spent 4. That an order of prohibition be issued prohibiting the 3rd Respondent Director of Land Adjudication and Settlement and the 4th Respondent Chief Land Registrar from implementing and enforcing the impugned Decision/Judgment of the 1st and 2nd Respondents which was made on 24th October, 2024 in Adjudication Land Appeal to the Minister Case Number 256 of 1990 with respect to the Uvete Adjudication Section situated within Makueni County. 5. That an order of certiorari be issued to remove into this honourable court for purposes of being quashed the impugned decision of the 1st Respondent Cabinet Secretary, Ministry of Lands and Physical Planning and the 2nd Respondent Deputy County Commissioner, Mukaa Sub-county, Makueni County, which was made on 24th October, 2024 in Adjudication Land Appeal to the Minister Case Number 256 with respect to the Uvete Adjudication Section situated within Makueni County. 2. Before I move on to decide the prayers sought, I first have to dispose of prayer two which seeks extension of time to file this originating summons for if extension of time is disallowed, this will mean that consideration of other prayers will be superfiuous. 3. The prayer for extension of time was brought under the provisions of Rule 6(1) (2) and (3) of the Fair Administrative Action Rules of 2024 which states as follows: 1. An applicant intending to apply for the quashing of an administrative action or decision shall commence judicial review proceedings before a court within six weeks after the date the administrative action was taken. 2. The court may, on the written application by an applicant, extend the time for lodging a judicial review application where it is proved to its satisfaction that the applicant was prevented, through fraud or misrepresentation, from getting to know of the administrative action or decision or could not, despite exercise of diligence, have known of the administrative action or decision sought to be quashed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3066/eng@2026-05-21 2

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3. In making a decision under sub-rule (2), the court may consider the period of the delay, the reason for the delay and whether an extension of time may cause substantial hardship or prejudice to the respondent. 4. The fair Administrative Action Rules, 2024 (Koome Rules) were enacted pursuant to Section 10 (2) of the Fair Administrative Action Act and were Gazatted via Gazette Notice No. 165 of 2024. 5. In 2024, Katiba Institute filed Constitutional Petition No. E373 OF 2024 seeking to suspend certain sections of the Rules. On 2nd April, 2025 Justice Mwamuye granted conservatory orders in which Rules 5, 6, 7, 11(4), 27(3) and 33 were suspended. That Petition is yet to be determined. On 21st April, 2026, Justice Mutai granted the ofice of the Chief Justice 30 days to file a response to the Petition. 6. Though this originating summons was dated 28th March, 2025, the same was filed on 3rd April, 2025 a day after Rule 6 of the Koome Rules had been suspended. It is possible that the Applicant’s counsel may not have been aware of the suspension of Rule 6 which gives the court power to extend time for filing originating summons seeking to quash a decision complained of. Owing to the date the pleadings herein were prepared and dated and given the possibility that the Applicant may not have been aware of the suspension before he filed the originating summons, I will in the interest of justice consider whether there should be extension of time as the pleadings were prepared and signed before the suspension of Rule 6. 7. The impugned decision was made on 24th October, 2024. When the appeal to the Minister was heard on 22nd August, 2024, the Applicant was present as well as the 1st Interested Party. There is nothing on record to show that judgment was to be delivered on notice. The parties must have been informed of the date of the judgment. There was a delay of 5 months and 5 days in filing the originating summons. 8. The Applicant states that he was not informed of the judgment date. He claims to have heard rumors on 24th January, 2024 at Uveti Market that the 1st Interested Party had obtained judgment in her favour and that she was intending to sell the land the subject of the appeal to a local church. He immediately wrote a letter addressed to the 2nd Respondent seeking confirmation of the rumors and if it was not so, when the judgment would be delivered. The Applicant claims that he delivered the letter to the 2nd Respondent on 27th January, 2025 but that the 2nd Respondent refused to stamp on his copy instead the 2nd Respondent asked him to go to the Director of Land Adjudication at the headquarters in Nairobi where would be informed about everything concerning the appeal. 9. The Applicant further claims that he did not know the existence of the proceedings before the Minister. The first time he knew of the proceedings was on 22nd August, 2024 when he was summoned to the 2nd Respondent’s ofice only for him to be surprised that the appeal was for hearing. He states that none of the family members was aware of the appeal before the Minister. By family, he meant the family of his deceased father who had five wives. 10. Contrary to the Applicant’s claim that no family member was aware of the appeal case, representatives of the family of the deceased wives of Mukuna had on 21st April, 2025 agreed to sell a small portion of the suit property to cater for survey fees. The representative from the house of Mukii Mukuna was Benjamin Musau Muthenya. The house of Nditi Mukuna had King’oo Mukuna. The house of Mbeleete Mukuna had Samuel Mutisya Musau while that of Mutete Mukuna was represented by Joyce Kilonzo and Geofirey Mukuna. 11. It is therefore not true as the Applicant claims that no family member was aware of the appeal proceedings. King’oo Mukuna who was in the family meeting of 21st April, 2025 where it was agreed that the suit property be shared amongst the five houses of Mukuna Kakui later swore an afidavit on 9th https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3066/eng@2026-05-21 3

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July, 2025 denouncing any knowledge of the appeal before the Minister. Also roped in the scheme of denouncing the appeal proceedings was one Agness Ngina Kimilu who claims to be an administrator of the estate of Mukii Mukuna. 12. By a letter dated 11th November, 2025 the area chief of Kitange location had written a letter confirming that Mukii Mukuna had only two daughters who had all died but prior to their death, they had appointed Benjamin Musau Muthenya to be representing the family of Mukii Mukuna. This Benjamin Musau Muthenya swore an afidavit on 30th October, 2025 stating that there was no family member by name Agness Ngina Kimilu within the family of Mukii Mukuna. 13. Three sisters of the Applicant swore an afidavit on 15th August, 2024 stating that they were aware of the appeal before the Minister and that they were agreeable to the suit property being shared among the five houses of Mukuna Kakui. A brother of the Applicant known as Joseph Kakui Mukuna also swore an afidavit on 5th August, 2025 agreeing to the sharing of the suit property amongst the five houses of Mukuna Kakui. 14. It is clear from the afidavits sworn herein which have not been denied that the family of Mukuna Kakui except the Applicant were in agreement that the suit property be shared amongst the five houses of Mukuna Kakui. It is therefore not true that the Applicant first came to know of the appeal proceedings in January, 2025. 15. This court is not convinced that the Applicant did not know of the decision of the Minister. It is clear from the hardbook writings by Mukuna Kakui that plot No. 1 at Uvete was not distributed during the time he distributed his properties amongst his five wives. This being the case it will be very prejudicial to the Interested Parties if the court was to grant extension of time to file proceedings or allow the proceedings which have already been filed when it was clear that plot 1 Uvete (the suit property) was not among the plots which were distributed by the late Mukuna Kakui. I therefore decline to extend time for filing of originating summons. Consequently the Applicant’s application is dismissed with costs to the Respondents and the Interested Parties. JUDGMENT SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 21ST DAY OF MAY, 2026. ............................................ HON. E. O. OBAGA JUDGE In The Presence Of: Mr. Omondi for Applicant. Ms. Nyaata for Interested Parties. Mr. Kuria for Ms. Momanyi for Respondent. Court assistants – Musyoki/Kilonzo https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3066/eng@2026-05-21 4

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