Republic v Land Registrar Kwale & another; Manzara Horizons Limited (Ex parte Applicant) (Judicial Review Miscellaneous Application E005 of 2024) [2026] KEELC 3261 (KLR)

JUDGMENT I. Preliminaries 1. The Judgement of this Honourable Court pertains to the Judicial Review suit brought vide the Notice of Motion application dated 4th December, 2024. The suit was instituted by “the Ex – Parte” Applicant, Manzara Horizons Limited and premised under the provision of Order 53 Rules 1, 2, 3 and 4 of the Civil Procedure Rules, 2010, Sections 8 (2) and 9 of the Law Reform Act, Cap. 26 and all other enabling provisions of the law. 2. It is instructive to note that apart from filing of a Memorandum of Appearance filed by the ofice of the Attorney General dated 30th September 2024, the Respondent never participated in this proceedings at all. 3. However, upon being served, and while opposing the suit, the Interested Party, Hezekiah Karanja Gitata filed their replies through a Replying Afidavit dated 14th February, 2025. The Honourable Court shall be dealing with it indepth at a later stage of this Judgement accordingly. All said and one, the Honourable Court shall proceed on delivering this Judgement on its own merit whatsoever. II. The case by the Ex- Parte Applicant**__ 4. The Ex - Parte Applicant sought for the following reliefs: a). That an order do issue compelling the Respondent to cancel entry 12 on the Land Register for Kwale/Msambweni “A”/2183 placed by Hezekiah Karanja Gitata. b). 5. That costs of this application be in favour of the Ex - Parte Applicant. The Judicial Review suit was premised on the grounds, testimonial facts and the averments made out from the 13 Paragraphed Verifying Afidavit sworn by the Ex - Parte Applicant, Susan M. Wanjiru dated 2nd September, 2024 together with eight (8) annextures marked as “SMW – 1 to 8” annexed thereto. She averred as follows that:a. The Deponent was an adult of sound mind, disposition and well versed with the facts of this case and hence competent to swear the Afidavit. b. She was the sole Director/Shareholder of the Ex - Parte Applicant with authority to swear the afidavit on behalf of the Ex - Parte Applicant. c. The Ex - Parte Applicant was the registered owner of all that parcel of land registered as Kwale/ Msambweni “A” /2183 as per an annexed copy of title (Hereinafter referred to as “The Suit Land”). d. On or about 16th February, 2023 the Respondent registered Entry no 12 which was a restriction at the instance of the Interested Party on the land register without notice to the Ex - Parte Applicant in contravention of the provisions of Sections 76 & 77 of the Land Registration Act, No. 3 of 2012. e. On 25th June, 2024, the Ex - Parte Applicant formally applied to the Respondent to have the said entry cancelled pursuant to the provisions of Section 78 of the Land Registration Act, No. 3 of 2012 but on 23rd July, 2024 it was rejected and returned with the following https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3261/eng@2026-03-17 2

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comments made on the booking form - “R/R OWNER TO APPEAR BEFORE THE LAND REGISTRAR” f. As per the direction by the Land Registrar, on 23rd July 2024 the deponent appeared before the Land Registrar by the name of Denis Mtana accompanied by her Lawyer Saida Mkabane but surprisingly the Interested Party who had caused the entry no. 12 had not been summoned as required by law. g. During the deliberations on 23rd July, 2024, before the Land Registrar, the deponent then requested to be furnished with the application for registration of the said restriction by the Interested Party to enable them know the ground upon which the registration had been made but the said Land Registrar refused to avail the documents. h. They were later informed by the said Land Registrar that she would cancel the entry but she would first have to consult her boss. The said Land Registrar later called the Ex - Parte Applicants Advocate and informed her that she had been asked by her boss not to remove the said restriction and that she would have to seek a court order for the cancellation. i. On 7th August, 2024 her Advocates wrote letter to the Respondent seeking to have the Interested Party summoned for compliance with the provision of Section 78 of the Land Registration Act, No. 3 of 2012 but to date the said letter had never been responded to. j. The Interested Party was probably a busy body, had no interest on the said property and was non - existent due to failure by the Respondent to furnish the Ex - Parte Applicant with the application for registration of the restriction despite several follow ups. k. The entry was being used as a bribery ground and extortion means. l. The Ex - Parte Applicant sought that the application was allowed. III. The responses by the Interested Party**__ 6. In opposition of the judicial review application, the Interested Party filed a 23 Paragraphed Replying Afidavit sworn by HEZEKIAH KARANJA GITATA and dated 14th February 2025. He averred as follows that:a. He was a beneficiary to the estate of the late Robert Gitata Gichohi (Hereinafter called “The Deceased”) the owner of the disputed suit property by the time of his death. He was the son of the deceased. b. He had registered a caution over it after it was established that the property had been fraudulently transferred to the Ex - Parte Applicant herein. c. The deponent opposed the application by stating that the decision by the Respondent was correct and the same ought to be upheld for reasons that Robert Gichohi Gitata who died on 21st May, 2004 and as the time of his death was the registered owner of the suit property. d. Subsequent to his death, the beneficiaries to the said estate petitioned for Grant Letters of Administration to his estate vide Succession Cause No 374 of 2011 at Chuka Law Courts as per the Certificate of Confirmation of Grant that was issued therein. e. At the point of distribution of the estate, the beneficiaries were shocked to find out that the property on 3rd October ,2022 was illegally and fraudulently transferred to the Ex - Parte applicant herein. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3261/eng@2026-03-17 3

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f. The Legal Administrators and beneficiaries to the estate of the deceased were not part of the fraudulent transfer. g. After scrutiny of the documents at the Lands Registry, Kwale it was established that the land had been transferred to Dan Otieno Okumu on 31st August, 2012 purportedly by the deceased who had died 8 years prior to the alleged fraudulent transfer. Later the said Dan Otieno Okumu transferred the said property to the Ex - Parte Applicant on 3rd October, 2022. h. The Interested Party proceeded as the Administrator to the estate of the deceased to register a caution upon the land on 16th February, 2023 to bar any further dealings and to further protect the land. i. The original land title to the suit property in the names of the deceased was presented upon the then Land Registrar, a Mr. Muigai and it was confirmed that the said title was genuine. j. The fraudulent transaction was reported to the DCI in Msambweni on 17th March, 2023. That a search at the Registrar of companies confirmed that the Ex - Parte Applicant company had one sole proprietor being Susan Wanjiru Irungu. k. Efiorts to serve the Ex - Parte Applicant with the notice lodging the caution proved futile as the address on the CR - 12 Form was not in existence. That it was only after the institution of this suit that the Interested Party came to get the Ex - Parte Applicant address. l. The Ex - Parte Applicant's subsequent acquisition of the suit property the said Dan Otieno Okumu was null and void and was not eligible to enjoy legal protection neither could this honourable courts process be abused to sanction the illegality to give its seal of approval to an illegally and fraudulently obtained title as they were now seeking through this application for judicial review. m. As the Legal Administrator to the Estate of the Estate, on 16th February, 2023 he proceeded to execute his duties by registering the Caution at the land registry against the suit property to bar any transaction from taking place. n. He held that they were holding the original Certificate of the Title deed to the land and which when they produced it at the Land Registry it was confirmed to be the genuine one than the one registered which was fraudulent. o. On 17th March, 2023 he reported the matter at the DCIO Msambweni. On the same date they conducted a search at the Company registry to establish the directorship of the company known as “Manzara Holdings Limited”. The CR – 12 Form revealed that it had a sole Director called Susan M. Wanjiru Irungu. p. Using the address on the CR – 12 form being non – existent, the Land registrar could not reach the Ex – Parte Applicant as the Notices and Summons kept on bouncing. q. Mr. Dan Otieno Okumu had no valid legal Interested capable of being transferred to the Ex – Parte Applicant making the transfer null and void as it was bestowed on a fraudulent scheme. r. They caused the Caution to be registered with valid reasons and grounds was an available legal means to them. s. The Interested Party prayed for status quo to be maintained. Indeed, as the beneficiaries to the estate of the deceased they were filing a suit for recovery of the land and had in fact served the Ex - Parte Applicant with a demand letter. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3261/eng@2026-03-17 4

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t. They urged the Court to dismiss the suit. IV. Directions by the Court**__ 7. On 8th April 2025, in the presence of the Learned Counsels for the Ex - Parte Applicant and the Interested Party but in the absence of the Respondent directions were taken on how to dispose ofi the suit. 8. Specifically, the Honourable Court granted the following directions that: a. The Ex - Parte Applicant directed to physically serve the Land Registrar Kwale and the State Law Ofice at Mombasa with all the pleadings within the next 3 days and to file an afidavit of service under the provision of Order 5 Rule 15 of the Civil Procedure Rules, 2010 as proof of service. b. Upon service the Respondent granted 21 days leave to file and serve replies. c. Thereafter the Ex - Parte Applicant granted 7 days to file and serve further afidavit if need responding to new issues of law from the filed replies. d. The Interested Party granted 10 days to file and serve written submissions. e. There be a mention on 7th June, 2025 to ascertain progress made. f. In the meantime the court to render its Judgment on 30th July, 2025. V. The Submissions**__ 9. On 25th February, 2025 upon the closure of filing pleadings and exchange of pleadings as earlier directed by court, Parties were directed to file their Written Submissions within given stringent timeframe. 10. Subsequently, the Honorable Court reserved a day to deliver its Judgment accordingly on 30th July, 2025 as already stated in the directions given above. 11. Pursuant to this, only the Ex – Parte Applicant and the Interested Party complied accordingly. A. The Written Submissions by the Ex - Parte Applicant**__ 12. 13. The Ex - Parte Applicant’s submissions are dated 15th March 2025. It was filed by the Law firm of Messrs. Mungai Kamau & Co Advocates. Mr. Mungai Advocate identified the following issues for determination:a. Whether the Respondent acted unprocedurally by entering entry no. 12 on the land register for KWALE/ MSAMBWENI “A”/2183. b. Whether the Grounds of Opposition dated 30th September, 2024 has merit. c. Whether the response in the Replying Afidavit by the Interested Party is an issue to be addressed in this suit. On the first issue for determination, Learned Counsel made reference to the provisions of Section 76 of the Land Registration Act, No. 3 of 2012 which provides as follows (1) “ ………. the Registrar may, either with or without the application of any person interested in the land, lease or charge, and after directing such inquiries to be made and notices to be served and hearing such persons as the Registrar considers fit, make an order (hereinafter https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3261/eng@2026-03-17 5

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referred to as a restriction) prohibiting or restricting dealings with any particular land, lease or charge. (2) 14. A restriction may be expressed to endure— (a) for a particular period; (b) until the occurrence of a particular event; or (c) until a further order is made, and may prohibit or restrict all dealings or only the dealings that do not comply with specified conditions, and the restriction shall be registered in the appropriate register. Further, the provision of Section 77 of the Act provides that: 77. Notice and efiect of restriction (1) The Registrar shall give notice, in writing, of a restriction to the proprietor afiected by the restriction. 15. However, according to the Learned Counsel, the Respondent entered entry 12 on the land register without any basis or suficient cause and any application by any person. The land Registrar, failed to make any inquiries and refused to serve any notice for hearing of the Ex - Parte Applicant herein before the entry of restriction which entry directly afiected the Ex - Parte Applicant’s right to due process before the law and before any action afiecting him and his proprietary property rights are made. Instead he summoned the Ex - Parte Applicant only after the application for removal of restriction was made and refused to summon the Interested Party who allegedly had made the application which was irregular and open biases since it did not yield any results. The Respondent despite having been requested to comply with the mandatory provisions of the law by the Ex - Parte Applicant, blatantly refused to comply. Thus acting in bad faith, unprocedurally and his actions amounted to gross abuse of powers. 16. And further the provision of Section 78 of the Act provides that: 78. Removal and variation of restrictions (1) The Registrar may, at any time and on application by any person interested or at the Registrar s motion, and after giving the parties afiected by the restriction an opportunity of being heard, order the removal or variation of a restriction. (2) Upon the application of a proprietor afiected by a restriction, and upon notice to the Registrar, the court may order a restriction to be removed, varied, or other order as it deems fit, and may make an order as to costs. 17. The Respondent violated the mandatory provisions of the law thus prompting the Ex - Parte Applicant to seek Court's intervention in having the Respondent compelled by this Court. The Ex - Parte Applicant complied with the statutory provisions in having entry no. 12 for the restriction removed by making the requisite application for removal of restriction and notice to the Respondent in compliance with the provisions of Section 78 (1) and (2) of the Act. 18. As a Public Oficer, the Respondent was under a legal obligation to comply with the law before making any decision that will afiect the Applicant by giving him an opportunity to be heard before entering entry No. 12 of the Land Register since the Respondent is well aware that its actions would directly afiect the Ex - Parte Applicant who is the registered proprietor of the afiected suit property. The restriction placed was for an indefinite period and did not give a condition upon which it could be removed thus being contrary to the provisions of the law. 19. To buttress his point, the Learned Counsel made reference was made to the provisions of Article 47 of the Constitution which provides for fair administrative action, it states: - https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3261/eng@2026-03-17 6

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20. 1) Every person has the right to administrative action that is expeditious, eficient, lawful, reasonable and procedurally fair. 2) If a right or fundamental freedom of a person has been or is likely to be adversely afiected by administrative action, the person has the right to be given written reasons for the action. 3) Parliament shall enact legislation to give efiect to the rights in clause (1) and the legislation shall: - a) Provide for review of administrative action by a Court or, if appropriate, an independent and impartial tribunal; Further, the provision of Section 4(1) of the Fair Administrative Action Act, No.4 of 2015 provides that: “ Every person has the right to administrative action which is expeditious, eficient, lawful, reasonable and procedurally fair. 21. Section 4 (3) of the Fair Administrative Action Act provides that: “ Where an administrative action is likely to adversely afiect the rights or fundamental freedoms of any person, the administrator shall give the person afiected by the decision— 4 a) prior and adequate notice of the nature and reasons for the proposed administrative action; b) an opportunity to be heard and to make representations in that regard; c) notice of a right to a review or internal appeal against an administrative decision, where applicable; d) a statement of reasons pursuant to section 6; e) notice of the right to legal representation, where applicable; f) notice of the right to cross-examine or where applicable; or g) Information, materials and evidence to be relied upon in making the decision or taking the administrative action. 22. The Learned Counsel cited the case of “Daniel Piranto Ole Nchani – Versus - Deputy County Commissioner Kajiado & 3 others Ex - Parte Daniel Piranto Ole Nchani [2019] eKLR”, where the Court discussed the right to fair administrative action which is expeditious, eficient, lawful, reasonable and procedurally fair as well as to be given reasons for the said action as envisaged under the provision of Article 47 of the Constitution. The court held that failure by the Respondents to accord the Ex Parte Applicant a hearing before registering the restriction on his parcel of land as well as failure to remove the same when the Applicant sought for it, is against the rules of Natural Justice and violated the Ex parte Applicant’s Constitutional right not to be condemned unheard. 23. Also in the case of:- “Sultan Khan aka Khan Sultan Ali & another – Versus - Ethics & Anti-Corruption Commission & another [ 2021] eKLR”, it was held that: “ Section 78(2) of the Land Registration Act gives the court discretion to grant an order for removal of restriction upon an application of a proprietor afiected by a restriction. It is evident that the Applicants are the registered owners of the suit property having purchased the same from M/s. Hayer Bishan Singh & Sons Limited and they obtained their Certificate of Lease on 30th August, 2016. The Applicants are therefore the proprietors of the suit https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3261/eng@2026-03-17 7

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property and have filed this application for removal of the restriction. The Defendants/ Respondents have not filed any response to the instant application to justify the placing of the said restriction. It is my finding that there are no reasons as to why the restriction placed on the suit property should remain.” 24. The court was also referred to the dictum in the case of: “ Ridge – Versus - Baldin (1964) AC (1963) 2 ALL ER 66” where the Court, while discussing the right to a fair hearing observed as follows:5 “The principle of fairness has an important place in the administration of justice and is also a good ground upon which courts ordinarily exercise discretion to intervene and quash the decisions of a tribunal or subordinate court made in violations of the right to a fair hearing and due process.” 25. Further in the case of: “Sceneries Limited – Versus - National Land Commission [2017] eKLR”, the Court held: “ I find no dificulty in concluding that the Respondents violated the rules of natural justice by failing to serve the Applicant with adequate notice and details of the complaint and on this ground alone, I am inclined to allow the Originating Summons before me. The Court further held a decision arrived at in total breach of the rules of natural justice is ultra vires null and void and cannot be allowed to stand…” 26. The Learned Counsel further submitted on whether the grounds of opposition dated 30th September, 2024 were merited and stated that the Respondent only filed Grounds Opposition stating that the Application was defective as it usurped the role of the Court to enjoin a party as an Interested Party. It was further stated that the Interested Party ought to have been sued as a Respondent and not an Interested Party. 27. It was submitted that the application herein was one under the provision of Order 53 Rules 1 (1), (2), (3) & (4) of the Civil Procedure Rules, 2010 and Sections 8 (2) and 9 of the Law Reforms Act, Cap. 26. The said provisions provide for orders of Judicial review, which were orders seeking to challenge the decisions of Public Oficers and bodies. 28. That the decision being challenged was the decision of the Respondent who is a Public Oficer. Specifically, it was the only the decision by the Respondent, the Land Registrar, which was being challenged. The Interested Party was not a Public Oficer, did not make any decision that was being challenged and has properly been made a party to this suit as an Interested Party only because he was the one who caused the entry of the restriction to be entered into the land register claiming he has an interest in the suit property and his role and or participation in these proceedings are very minimal. 29. Further that a suit belonged to the Applicant and the Court could not direct an Applicant on who it should sue as a Respondent or a party to the suit hereof. The Respondent had failed to furnish this Court with evidence that it complied with mandatory provisions of Law on whether he accorded the Ex - Parte Applicant with the opportunity for a hearing before the decision it made that afiected its proprietary interest was made even despite the Ex - Parte Applicant urging the Respondent to comply with the law. That the actions of the Respondent in failing to cope with the law amounted to gross abuse of power and any decision made by it in violation of the law was an illegality, null and void ab initio as was held in the case of: “Sceneries Limited (Supra). 30. The Learned Counsel also contended on the third issue for determination. This was whether the response in Replying Afidavit by the Interested Party was an issue to be addressed in this suit. That https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3261/eng@2026-03-17 8

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the Interested Party in his Replying Afidavit raised issues of fraud and not the procedural fiaws and noncompliance by the Respondent with the provisions of the law. 31. The Learned Counsel averred that the Issues of fraud could not be addressed through a judicial review application. That if the Interested Party sought to have its interest in the suit property protected, it could move the Court appropriately. Also that the Interested Party had no role in serving the registered proprietor with notices on behalf of the Land Registrar as it has stated that it served the notice to the Applicant by way of registered mail. 32. That in addition to the Interested Party claiming that the Respondent served the Notice to the Applicant, it had not attached the said notice in its Replying Afidavit and or Certificate from the Postal Corporation of Kenya confirming service by way of registered mail and in addition the Respondent has not confirmed it served the Applicant. 33. In conclusion it was submitted that the Ex - Parte Applicant has demonstrated that the decisions of theRespondent in entering entry No. 12 of the land register which is a restriction by the Interested Party was done in total disregard of the law. Despite the efiorts by the Ex - Parte Applicant to have the Respondent regularize the illegalities that it perpetuated according to the Ex - Parte Applicant's due process, it refused to do so which is a demonstration that its decision was made in bad faith. The suit herein has not been challenged by the Respondent and it is therefore unopposed and we pray that it be allowed as prayed. 34. The court was urged to in addition to allowing the application as prayed, direct that the costs be borne by the specific Land Registrar who acted in bad faith in subjecting the Ex - Parte Applicant to the Court process that would have been avoided if there was strict compliance with the law. B. The Written Submissions by the Interested Party**__ 35. On 5th June, 2025 the Interested Party, through the Law firm of Messrs. Aroka & Co Advocates’ filed his written submissions. M/s. Aroka Advocate submitted that the sole aim of the Interested Party registering the restriction was to safeguard the deceased’s estate, whose title had been fraudulently and illegally transferred to the Ex - Parte Applicant. The Interested Party fully relied on the averments in its Replying Afidavit dated 14th February, 2025 in opposition to the instant application and submitted that the decision by the Land Registrar, duly supported by and based on an application by the interested party, was lawful and should be upheld for reasons further elaborated herein below. 36. The Learned Counsel submitted that the property in dispute, Kwale/Msambweni/2183 – the suit property belonged to Robert Gitata Gichohi (Deceased) who died on 21st May, 2004 as evidenced by the Certificate of death and copy of title, that the original of which the administrators to the estate of the deceased still hold to date. That the evidence in the court record and indeed the Respondent’s records speaks of an elaborate scheme to fraudulently and illegally strip the estate of Robert Gitata Gichohi, title that was legally and procedurally acquired on 7th July, 1982. Further that the suit property was one of the properties that were subject to a Succession Cause No. 374 of 2011 at Chuka Law Courts, after the demise of Robert Gitata Gichohi as evidenced by the confirmation of grant dated 6th March, 2012. 37. As regards what transpired at the time of distribution of the estate of the deceased. The Learned Counsel submitted that in February, 2023, while at the point of seeking to distribute the estate, the administrators were shocked to learn that the property had on 3rd October, 2022 been illegally and fraudulently transferred to the Ex - Parte Applicant. According to the Counsel, it prompted them to lodge the restriction against the said title on 16th February, 2023 to preserve the estate as evidenced https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3261/eng@2026-03-17 9

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by the application marked. The application form to the Land Control Board purported to show that Robert Gitata Gichohi who had been dead for 8 years, consented to the transfer. Thus, it laid bare the fraudulent transaction by one Dan Otieno Okumu who then transferred the property to the Ex - Parte Applicant. 38. The Learned Counsel contended that the said Dan Otieno Okumu had no valid legal interest capable of being transferred to the Ex - Parte Applicant. Hence, the title bestowed upon the Ex - Parte Applicant having been obtained through fraudulent means did not enjoy sanctity of title. 39. It was submitted that the Interested Party reported the matter to the DCI Msambweni on 17th March, 2023 as evidenced by the Occurrence Book (OB) entry availed to court and investigations which are still ongoing became challenging as the parties to the transaction deliberately left inaccurate and/or fictitious contact details with the Registrar of Companies. 40. The Learned Counsel opined that it was only through the advertisement that was published in one of the local newspaper serving the pleadings through substituted means that the Interested Party had finally been able to even get hold of the Ex - Parte applicant through this suit. That the Ex - Parte Applicant’s subsequent acquisition of the suit property from the said Dan Otieno Okumu was null and void ab initio. Hence they could not enjoy legal protection neither could this Honorable Court’s process be abused to sanction the illegality or to give its seal of approval to an illegally and fraudulently obtained title as they are now seeking through this application for judicial review. 41. The Interested Party identified the following 4 issues for determination. Firstly, whether there was procedural impropriety in registering the caution. The Learned Counsel referred to the grounds for granting judicial review as: 42. a. Illegality. b. Irrationality; and c. Procedural impropriety. It was submitted that the above grounds were well expounded in the case of: “Council of Civil Service Unions – Versus - Minister for the Civil Service (1985) AC 374, 410” where Lord Diplock spoke of these grounds as follows: “ My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’ the second ‘irrationality’ and the third ‘procedural impropriety.’ That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ‘proportionality’ which is recognized in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will sufice”. 43. Regarding procedural impropriety, it was submitted that it was trite that in cases where a person’s rights or fundamental freedoms was likely to be afiected by an administrative decision, the administrator must give the person afiected by the decision prior and adequate notice of the nature and reasons for the proposed administrative action; an opportunity to be heard and to make representations; notice https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3261/eng@2026-03-17 10

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of a right to a review or internal appeal against where applicable; a statement of reason; notice of the right to legal representation and right to cross-examine; as well as information, materials and evidence to be relied upon in making the decision or taking the administrative action. 44. The Learned Counsel stated that he was in agreement with the provisions of Section 4(3) of the Fair Administrative Actions Act and further to 77 of the Land Registration Act, No. 3 of 2012 on notice and efiect of registration. Section 77 (1) provided that the Registrar shall give notice, in writing of a restriction to the proprietor afiected by the restriction. They maintained that service was efiected upon the Ex - Parte Applicant on the known address as per the CR – 12 Form and further on the listed phone number but the same were not functional. 45. From the foregoing it was clear that the notice and summons were sent out by the Respondent but the said process was frustrated due to the Ex - Parte Applicant’s actions of issuing fictitious and nonexistent contact details. Clearly, there was no procedural fiaw by the Respondent as alleged by the Ex Parte Applicant or at all. That from the application form for the restriction duly filed by the Interested Party marked as “CJG - 5” it was clearly stated that the restriction was to be for 5 years and/or when the issue of rightful title to and ownership of the property shall have been conclusively determined. 46. Secondly, whether the Ex - Parte Applicant exhausted alternative and/or administrative remedies. It was submitted that the Doctrine of Exhaustion of remedies was a fundamental principle, infiuencing how disputes are resolved in various legal contexts. It mandated that before approaching the courts, parties must exhaust all available administrative or alternative remedies. 47. The Counsel held that before proceeding to file this action, the Ex - Parte Applicant never exhausted alternative remedies using the Respondent’s hierarchies to appeal the decision by the Respondent neither did they lodge a complaint to the ombudsman as is requisite. Reference was made to the provisions of Section 14 (2) (e) of the Land Registration Act, 2012 which clothes the Chief Lands Registrar with authority to hear appeals from land registries by providing thus: “ In addition to the powers conferred by section 14 (1) the Chief Land Registrar shall— … hear and determine appeals from the registries” 48. The Learned Counsel averred that Parliament in its own wisdom having prescribed the procedure to be followed by anyone seeking to challenge a declaration made by Respondent it is not open to the ex parte Applicant to bypass this procedure by invoking the prerogative orders under order 53 of the Civil Procedure Rules. Reference was made to a myriad of authorities which included; Republic – Versus National Environment Management Authority Ex - Parte Sound Equipment Limited (Miscellaneous Civil Application 7 of 2009) [2010] KEHC 3736 (KLR) (22 February 2010) (Judgment), Speaker of the National Assembly v Karume (Civil Application 92 of 1992) [1992] KECA 42 (KLR) (29 May 1992) (Ruling], Harley Devt Inc – Versus - Commissioner Of Inland Revenue (1996) IWLR 727 R – Versus - Wandsworth County Court (2002) EWCA CIV 1728 (2003) IWLR 475” the courts said that permission to claim Judicial Review should not be granted when a suitable alternative remedy was available. Also in the case of:- “Rep – Versus - Lamberth London Borough Council (2006) UKHL 10 (2006) 2 AC 265”, Lord Bingham said: “ referring to the principle that if other means of redress are conveniently and efiectively available to a party, they ought ordinarily to be used before resort to Judicial Review”. That the Court of Appeal held the same view in the case of:- “James Njenga Karume – Versus CR 192/1992”:- https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3261/eng@2026-03-17 11

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“Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament that procedure should be strictly followed. Order 53 cannot oust clear Constitutional and Statutory provisions.” 49. It was submitted that the Ex - Parte Applicant had not demonstrated that there were exceptional circumstances that necessitate them to come by way of Judicial Review instead of pursuing the remedy under the LRA. The actions that they were complaining of against the Respondent could have easily been resolved by the Chief Land Registrar, had they escalated the matter as required by the Act. That they thus ought to be re directed to first exhaust the alternative administrative remedies and only come to this court as a last resort. On this basis it was submitted that this application ought to be dismissed with costs. 50. Thirdly, what remedy was entitled to the Interested Party. The Learned Counsel submitted that the Interested Party had a legal basis for registering the restriction upon the estate of Robert Gichohi Gitata in his capacity as an administrator of the estate. That due procedure was followed by both the interested party and the Respondent in registering the same. Further that due procedure having been followed by the Respondent in issuing the summons and notice and further noting that the delivery of the said notice was frustrated by the Ex - Parte Applicant’s intentional action of falsifying their contact details in government records, they should not be allowed to benefit from any orders of this honorable court. 51. Reference was made to the equity maxim that goes, “Ex turpi casua non orituracti action’ /“he who comes to equity must come with clean hands” that granting the orders for judicial review as sought shall not only be prejudicial to the estate of the deceased but shall also be tantamount to breaching the 4 main principles to this maxim that provide thus: i. Immoral consideration: An action cannot be found on immoral basis. ii. Fraud: A right of action cannot arise out of fraud or deception. 52. The Counsel held that it was clearly evident in not only the illegal and fraudulent transfer of title but also the Ex - Parte Applicant issuing false, fabricated and/or fictitious contact details in their CR - 12 form. iii. His own wrong: A person could not take advantage of his own mistakes. His own inequity: a person cannot base his action on his own inequity. He must be clear of participation in any deceitful actions of similar inequitable conduct. 53. In the alternative and without prejudices to the foregoing, should this Honorable Court be inclined to grant the orders for judicial review, it was prayed that in the interest of fairness and justice, the court considers issuing a suspended order and thereby issue a timeframe for the parties to present themselves before the Respondent for hearing, now that the Ex - Parte Applicant had been found, and thereby allow the Respondent to make a determination on the disputed title and a decision thereto pursuant to the provisions Section 76 (1) and 78 (1) of the Land Registration Act, No. 3 of 2012. 54. Also that any appeals emanating thereto also ought to be addressed administratively by the Chief Lands Registrar pursuant to Section 14 (2) (e) of the Land Registration Act and any other available administrative/ alternative mechanisms in place. 55. On distinguishing the authorities as cited, reference was made in the two cited case of: “Daniel Piranto Ole Nchani – Versus - Deputy County Commissioner Kajiado & 3 others Ex - Parte Daniel Piranto Ole Nchani [2019] eKLR (Supra) and Sceneries Limited (Supra)”, the Respondents/ Land Registrars in the respective cases did not make any efiort to serve the Ex - Parte Applicants therein with the notice and summons. However, in the instant case the notice and summons were served however the same bounced as the address issued by the Ex - Parte Applicant was not theirs. 56. The Counsel cited the case of: “Sultan Khan aka Khan Sultan Ali & another – Versus - Ethics & AntiCorruption Commission & another [ 2021] eKLR”, the said suit was not opposed thus the court could https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3261/eng@2026-03-17 12

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not find a justification and/or reason why the restriction had been placed on the property. In the instant suit the Interested Party had responded and provided cogent reasons supported by evidence proving the reason why the restriction was filed. 57. Finally, the issue of costs, the Interested Party prayed that he be granted the costs of the application. VI. Issues for Determination**__ 58. The Court has keenly considered all the filed pleadings, both the oral submissions by the Counsels and documentary evidence adduced, the Written Submissions, the myriad of cited authorities by the Ex – Parte Applicant and the Interested Party, the relevant provisions of the Constitution of Kenya 2020 and the Statutes herein. 59. For the Honorable Court to arrive at an informed, reasonable, just and fair decision, there are three (3) salient issues to be determined. These are: a. What are the nature, meaning and scope of the concept of the Judicial Review and granting of Prerogative writs in Kenya. b. Whether the Ex - Parte Applicant has made out a case for the grant of the judicial review order sought. c. Who shall bear the costs of the application. VII. Analysis & Determination. ISSUE No. a). What are the nature, meaning and scope of the concept of Judicial Review and granting of Prerogative writs in Kenya. 60. Under this Sub – heading, the Honourable Court will deliberate on the merits of the Judicial review case instituted by the Ex – Parte Applicant under the already set out provisions of the Law. But before that, the Court will extrapolate on the brief facts of the case for ease of reference. Judicial review in Kenya is not concerned with the merits of a decision but with the decision-making process. The Court must interrogate whether the impugned administrative action was lawful, reasonable, and procedurally fair. 61. In our legal parlance and jurisprudence, Judicial Review is founded under the provisions of Order 53 Rules 1 to 7 of the Civil Procedures Rules 2010 where the Prerogative orders of “Mandamus”, “Prohibition” and “Certiorari” are issued. 62. Primarily, the provisions of Sections 8 and 9 of the Law Reform Act Cap 26 of the Laws of Kenya where the Provisions of Order 53 of the Civil Procedure Rules 2010 was borrowed from the case of Farmers Bus Services – Versus - Transport Licensing Appeals Tribunal (1975) E.A. 523. And upon the promulgation of the Constitution of Kenya in 2010 Article 47 of the Constitution of Kenya introduced the Provisions of Fair Administration of justice and later on the legislation of “the Fair Administration of Action Act of 2012” which is the statutory framework governing judicial review and the Administrative law in Kenya currently. 63. The legal eficacy and scope of the statutory order of Mandamus, Prohibition and Certiorari are remedies granted by High Court to persons inferred by the exercise of administrative of judicial powers. These prerogative orders are only available against public bodies. Their origins lie in the expansion of common law in England and the jurisdiction of the Court of King Bench to acquire Superintendence over the observance of law by oficials. These orders are predicated upon the fact that without law, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3261/eng@2026-03-17 13

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society cannot function with fundamental values such as social order, social justice and personal freedom. Today public authorities determine an overwhelming extent how much of these values are enjoyed. Their decision afiect vast numbers of people collectively and individually “Ipso Facto” unlawfully decision, must be available to Judicial Scrutiny hence judicial Review. The social need for how and the protection of legality is violated when a public oficial exceeds his/her authority or does not use his/her power in the prescribed manner. The order of “Mandamus” is derived from the Latin word “Mandare” meaning to command. It is issued in cases where there is a duty of a public or a quasipublic nature or a duty imposed by statute, it compels the fulfillment of a duty where there is a lethargy on the part of a body or oficer concerned. 64. In a nutshell Judicial Review is the means by which High Court judges scrutinize public law functions intervening as a matter of discretion to quash, prevent, require and/or classify not because they disagree with the judgment but so as to right a recognizable public law wrong. This public law wrong could be unlawfulness, Wednesbury unreasonableness or irrationality, unfair hearing, ultra vires bad faith, unfairness, made or arrived at out of excess powers (ultra vires) biasness, capriciousness or unjudicial. 65. In an application for Judicial review the Applicant must be a person with a suficient interest – (Locus Standi) and who commences proceedings promptly. To support this legal concept on judicial review, I have made indepth references to several literature review and court decisions – “Pharmaceutical manufacturers Association of South Africa in re - Ex - Parte president of Republic of South Africa - 2000 S.A. 674 CC at 33 Republic – Versus - Speaker of the Senate and Another Ex-parte Afrison Export Import Limited 2018 eKLR Republic –Versus- Stanley Mambo Amuti (2018) eKLR.”; the Kenya National Examination Council – Versus - Republic (Ex - Parte - Geofirey Gathenji & Another Nairobi Civil Appeal No. 266 of 1996. 66. The Court of Appeal in “Kenya National Examination Council – Versus - Republic ex parte Geofirey Gathenji Njoroge & 9 Others [1997] eKLR” stated: “ Judicial review is concerned not with the merits of a decision but with the decision-making process. The Court must ensure that the decision is lawful, reasonable, and procedurally fair.” 67. Similarly, in “Pastoli – Versus - Kabale District Local Government Council & Others [2008] 2 EA 300”, the Court held: “ 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 impropriety.” 68. In the case of: “J. M Mutungi in Njagi – Versus - Muchiri & another (Judicial Review E006 of 2023) [2024] KEELC 1812 (KLR) (12 April 2024) (Ruling)” where the origin of judicial review was discussed as follows:“ Judicial review in Kenya originated as a common law remedy for checking administrative actions. The practice of the courts exercising judicial review powers was largely borrowed from the United Kingdom as can be clearly seen from the provisions of the Law Reform Act. Prior to the promulgation of the current Constitution, the judicial review jurisdiction of the Kenyan courts was firmly grounded on the provisions of Sections 8 and 9 of the Law Reform Act with its’ procedure provided in Order 53 of the Civil Procedure Rules, 2010. Judicial Review process enabled the High Court to superintend the actions of the Executive Arm of Government through the writs of Certiorari, Prohibition and Mandamus. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3261/eng@2026-03-17 14

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Upon the promulgation of the Kenya Constitution in 2010, Judicial Review attained constitutional underpinning under Article 47, with Judicial Review remedies being accorded constitutional status by Article 23 of the Constitution. In regard to Judicial Review the Constitution achieved two objectives: it entrenched judicial review in the Constitution under Article 47 and expressly provided under Article 23 of the Constitution that an order of Judicial Review is one of the remedies available for correcting constitutional violations”. 69. Mandamus is a prerogative order issued in certain cases to compel the performance of a duty. It lies where an injured party has a right to have something done, but has no alternative means of compelling its performance, especially in scenarios where the obligation arises out of the oficial status of the respondent [c.f. “Shah – Versus - Attorney General (No.3) Kampala HCMC no. 31 of 1969 (1970) EA 543”]. 70. Difierently put, an order of Mandamus is used to compel public oficers to perform duties imposed upon them by common law or by statute [c.f. “Shah – Versus - Attorney General (Supra)”]. 71. In the foregoing I find that the Judicial review suit instituted by the Ex – Parte Applicant meets the threshold of such a suit. Proceeding to examine its merit, to succeed in an application seeking an order of Mandamus. 72. The circumstances under which judicial review order of mandamus are issued were discussed in the case “Republic – Versus - Kenya National Examinations Council Ex Parte Gathenji & 8 Others Civil Appeal No 234 of 1996”, where the Court of Appeal cited with approval, Halsbury’s Law of England, 4th Edition. Vol. 7 p. 111 para 89 thus: “ The order of mandamus is of most extensive remedial nature and is in form, of a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their ofice and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right and it may issue in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and efiectual.” These principles mean that an order of mandamus compels the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.” ISSUE No. b). Whether the Ex - Parte Applicant has made out a case for the grant of the judicial review order sought. 73. Under this Sub – heading, the Honourable Court shall be examining whether the suit instituted by the Ex – Parte Applicant was merited. The instant judicial review proceedings are premised upon the provisions of Order 53 of the Civil Procedure Rules which provides for the procedure for seeking review. It states as follow: 1. No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule. 2. An application for such leave shall be made ex parte to a judge in chambers and accompanied by — https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3261/eng@2026-03-17 15

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(a) a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought; and (b) afidavits verifying the facts and averment that there is no other cause pending, and that there have been no previous proceedings in any court between the applicant and the respondent, over the same subject matter and that the cause of action relates to the applicants named in the application. The first point of departure for this court will be to determine whether the judicial review proceedings were made in accordance with the above rule as it is common ground that the grant of leave is an exercise in judicial discretion. An application for leave ordinarily ought to be heard ex-parte but according to the proviso to Rule 1 of Order 53 of the Civil Procedure Rules, the Judge hearing the matter has the discretion to direct that the application be heard “inter partes. 74. The reasons underlying the need for leave were well-explained in the case of:- “the Republic Versus County Council of Kwale & Another Ex - Parte Kondo & 57 others, Mombasa HCMCA No. 384 of 1996, as cited in Republic - Versus - Anti-Corruption Commission & Another; Mike Mbuvi Sonko & another (Interested Parties) Ex - Parte Paul Ndonye Musyimi (2020) eKLR”, as follows: “ The purpose of application for leave to apply judicial review is firstly to eliminate at an early stage any applications for JR which are frivolous, vexatious or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an application for Judicial review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public oficers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for Judicial review of it were actually pending even though misconceived.” 75. In the instant case, it is noted that leave for filing of the instant judicial review application was dated 2nd September ,2024. Court allowed leave to file the application on 13th November, 2024 as per the proceedings on record. The judicial review application herein was therefore properly before court. 76. The Ex - Parte Applicant’s case was that the Respondent herein who was the Land Registrar Kwale acted ultra vires by registering entry no 12 on suit parcel herein or about 16th February, 2023 which restriction was made at the instance of the interested party on the land register without notice to the Ex - Parte Applicant in contravention of the provisions of Sections 76 & 77 of the Land Registration Act. 77. From the record, the court confirmed that indeed a caution was registered on the suit property herein by the Interested Party herein who is the administrator of the estate of the late Robert Gitata Gichohi – the Deceased. According to the Interested Party, the suit herein belongs to the estate of his deceased father who passed on in May, 2004. Indeed, the Court had the chance to peruse the Certificate of Death annexed and confirms the death of the deceased as having occurred on 21st May, 2004 at the Kenyatta National hospital. 78. It is further noted that the suit property was registered in the names of the deceased on 7th July, 1982 and remained so until it was transferred to one Dan Otieno Okumu who was issued with a title on 30th August, 2012 which was eight years after the death of the deceased. It is also noted that the suit property was thereafter transferred to the exparte applicant herein and registered under it on 3rd October, 2022 from an alleged purchase. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3261/eng@2026-03-17 16

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79. The Interested Party pleads two things. One that there was alleged fraud on the transfer efiected to Dan Otieno Okumu as the same took place 8 years after the deceased was buried. That it was after discovery of such fraud that the estate of the deceased opted to register a caution on the suit property so as to protect the interests of the estate and safeguard its assets. It was stated that the Land Registrar did not act ultra vires under any circumstances as the relevant notices were made to the Ex - Parte Applicant before registration of the caution and hence the instant application is without merit. 80. Two, it was argued that the Ex - Parte Applicant has failed to exhaust the laid down procedure for dealing with disputes of the instant nature. That when aggrieved by the decision of the Land Registrar, the next port of call would have been to appeal the decision by the Respondent by lodging a complaint to the ombudsman as is requisite. Or to follow the procedure under the provisions of Section 14 (2) (e) of the land Registration Act which clothes the Chief Lands Registrar with authority to hear appeals from Land registries. The Interested Party maintained that the principles under the doctrine of exhaustion had not been pursued. 81. With the above in mind, it is imperative now of the court to interrogate the arguments in relation to the facts of the case and the law at hand. I have noted with concern that amongst the issues raised herein, it is clear that some of the actions raised are contrary to the provisions of Section 45 of the Law of Succession as they amounted to intermeddling in the estate of a deceased person. In the case of: “Morris Mwiti Mburungu – Versus - Denis M & others (2016) eKLR”, the Court held:“ …...where any person interferes with the free property of the deceased or deals with the estate of the deceased person contrary to the provisions of Sections 45 and 82 of the Act, that is intermeddling, is unlawful and cannot be protected by the Court. The transaction is subject to be nullified and set aside at the instant of the innocent beneficiaries who may have been afiected by the act, but they were not involved.” 82. However, I am very cautious in making certain observations as it is rather obvious that a more concrete and conclusive decision can only be made subject to the matter being heard by way of viva voice evidence between the parties herein. The issue of intermeddling is thus an observation as at this point. I have also further noted and it not in doubt that the Ex - Parte Applicant was registered as the proprietor of the suit properties on 3rd October, 2022. Upon the registration, the efiect of it, as provided for under the provision of Section 24, 25 and 26 of the Land Registration Act, No. 3 of 2012, the company became the prima facie the absolute and indefeasible owner of the suit property with all the interest, right and title vested in it by law. Subsequently, it was issued with title deeds, which certificates of titles could only be challenged on the grounds of fraud, misrepresentation or irregular acquisition though a suit instituted by any aggrieved party including the Interested Party. This is provided for under Section 26 of the Land Registration Act. That was not the case herein. 83. Further, I reiterate that, it is evident that a Certificate of Title is conclusive evidence of ownership. It is prima facie evidence that the registered proprietor is the owner. The provision of Section 24 of the Land Registration Act, No. 3 of 2012, gives the registered proprietor absolute rights over land, it provides: “ Subject to this Act—a.The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and b.The registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3261/eng@2026-03-17 17

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expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease”. 84. It is also very clear that the title in respect of land is protected under Section 26 of the same Act, which provides: (1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all Courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—(a)on the ground of fraud or misrepresentation to which the person is proved to be a party; or(b)where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 85. Based on the above provisions, a registered proprietor enjoys the statutory protection of title as long as he/she can show that the title was acquired procedurally. The circumstances when title can be cancelled or revoked are enumerated under Section 26 (1) (a) & (b) of the Land Registration Act. 86. Now, was it out of the ordinary for the Land Registrar to register a caution against the title deed held by the exparte applicant herein? Section 2 of the Land Registration Act sets out the definition of a caution to mean: a. 87. “a notice in the form of a register to the efiect that no action of a specified nature in relation to the land in respect of which the notice has been entered may be taken without first informing the person who gave the notice; orb.a caveat.” On Sections 71 to 75 of the Land Registration Act, No. 3 of 2012 governs the procedure and efiect of cautions. Section 71 (1) of the Act sets out the criteria of persons eligible to register a caution as follows: “ 71. (1) 88. Section 72 of the Land Registration Act stipulates that:’ (1) 89. A person who-(a)claims the right, whether contractual or otherwise, to obtain an interest in any land, lease or charge, capable of creation by an instrument registrable under this Act;(b) is entitled to a licence; or(c)has presented a bankruptcy petition against the proprietor of any registered land, lease or charge.” The Registrar shall give notice, in writing, of a caution to the proprietor whose land, lease or charge is afiected by the caution. (2) A disposition that is inconsistent with the caution shall not be registered while the caution is still registered except with the consent of the cautioner or by the order of the court. The Ex - Parte Applicant is seeking for orders of Mandamus to quash the decision of the 1st Respondent of placing a caution as entry 12 on the suit property “Kwale/Msambweni A/2183” and to compel the said Land Registrar to cancel the entry. The order sought is issued to compel a public body to perform a public duty which is imposed on a person or body of persons by statute, and where that person has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3261/eng@2026-03-17 18

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90. See Halsbury’s Law of England 4th Edition. Vol. 7p111 para 89: “ the order of mandamus is most extensive remedial nature and is in form of a command issuing from the High court, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their ofice and is in the nature of public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is specific legal right and no specific legal remedy for enforcing that right….” 91. It is the Ex - Parte Applicant’s contention that the 1st Respondent unlawfully and un procedurally registered a caution on its title deeds and thus acted in excess of its jurisdiction and also failed to give it a fair hearing or send a notice before placing the caution. 92. The circumstances under which judicial Review orders can be issued were set out in the Ugandan case of: “Pastoli – Versus - Kabole District Local Government Canal &others (2008) 2 EA 300”, where the court held:“ in order to succeed in an application for judicial review, the Applicant has to show that the decision or the act complained of is tainted with illegality, irrationality and procedural impropriety.” Therefore, the Exparte Applicant herein has to establish the above parameters for him to succeed in this Judicial Review 93. Further in the case of “Municipal Council of Mombasa – Versus - Republic Umoja Consultants Limited, Nairobi Civil Appeal No.185 of 2007(2002) eKLR, the Court of Appeal held that:“ The Court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who make the decision have the power i.e the jurisdiction to make it. Were the persons afiected by the decision heard before it was made. In making the decision, did the decision maker take into account relevant matters or did they take into account irrelevant matters. These are the kind of questions a court hearing a matter by way of judicial review is concerned with and such court is not entitled to act as a Court of Appeal over the decider. Acting as an appeal court over the decider would involve going into the merits of the decision itself - such as whether this was or there was no suficient evidence to support the decision and that as we have said, is not the province of Judicial Review”. 94. It is trite law that a court exercising judicial review jurisdiction is only concerned with the procedural propriety of a decision and not the merits. The court cannot be invited in a judicial review proceeding to act as an appellate court to reverse the decision of the 1st Respondent. In the case of “Republic - Versus - Kenya Revenue Authority Ex - Parte Yaya Towers Limited (2008) eKLR”, the Court held that: “ The remedy of judicial review is concerned with reviewing not the merits of the decision of which the application for judicial review is made, but the decision making process itself. It is important to remember in every case that the purpose of the remedy of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected” 95. As stated earlier, the Ex - Parte Applicant purchased the suit property from one Dan Otieno Okumu as evidenced by the history of the transfers on the greencard. What is evidently questionable is how the said Dan Otieno Okumu acquired the suit property from the deceased herein and who was the previous registered owner as has been stated by afidavit evidence filed by the Interested Party. The https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3261/eng@2026-03-17 19

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court is meant to understand that the Ex - Parte Applicant acquired the suit property through the act of misrepresentation by Dan Otieno Okumu. However, this is not the issue in contention before this Court. The Court should and cannot not digress taking that parties are bound by there own pleadings as provided for under the provision of Order 2 Rule 6 of the Civil Procedure Rules,, 2010. What is contested is the procedure through which the Respondent registered a caution on the suit property against the Ex - Parte Applicant’s interests. Clearly, the Court has established it was ultra vires the powers vested onto the Respondent by law. 96. The evidence on record is that the Ex - Parte Applicant could not be traced at the time of registering the caution. That the contact information from the registrar of companies was not active and thus the mail sent was not delivered. Further that the phone numbers indicated were registered in the names of another person. However, be it as it may, the Land Registrar and the Interested Party have not shown any efiort made to contact the Ex - Parte Applicant other than the known address. For example, placing an advert on a newspaper of wide national circulation would have adequately suficed at this point. Therefore, as pointed out, the Land Registrar acted without following the due procedure of giving the Ex - Parte Applicant a hearing and serving them with a notice before proceeding to register the caution. 97. The Interested Party has raised the issue of illegality of the title held by the Ex - Parte applicant. It is evident that Dan Otieno Okumu transferred the suit property to his name before acquisition of the Grant Letters of administration. His action was illegal and whatever transaction he carried was null and void. See the case of: “Benson Mutuma Muriungi – Versus - C.E.O Kenya Police Sacco & Another [2016] eKLR”, the Court defined what would constitute intermeddling as follows:“ Whereas there is no specific definition provided by the Act for the term intermeddling, it refers to any act or acts which are done by a person in relation to the free property of the deceased without the authority of any law of grant of representation to do so. The category of the ofiensive acts is not heretically closed but would certainly include taking possession, or occupation of, disposing of, exchanging, receiving, paying out, distributing, donating, charging or mortgaging, leasing out, interfering with lawful liens or charge or mortgage of the free property of the deceased in contravention of the law of Succession Act. I should add that any act or acts which will dissipate or diminish or put at risk the free property of the deceased are also acts of intermeddling in law. I reckon that intermeddling with the free property of the deceased is a very serious criminal charge for which the person intermeddling may be convicted and sentenced to imprisonment or fine or both under section 45 of the Law of Succession Act. That is why the law has taken a very firm stance on intermeddling and has clothed the Court with wide powers to deal with cases of intermeddling and may issue any appropriate order(s) or protection of the estate against any person.” 98. However, as has already been expansively deliberated in this Judgement, the legality of the Ex - Parte Applicants title is to be determination in a difierent suit or forum but certainly not in this matter. This is wrong place. For that reason, this court directs the Respondent to cancel entry 12 on the land register for Kwale/Msambweni “A”/2183 placed by Hezekiah Karanja Gitata. Since the Ex - Parte Applicant’s address is now known, the Interested Party has the leeway to lodge the caution but with regard to due process. ISSUE No. c). Who will bear the costs of the suit 99. It is now well established that the issue of costs is at the discretion of Court. Costs is an award that is granted to a party at the conclusion of legal action or proceedings in any of litigation. The Proviso of https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3261/eng@2026-03-17 20

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Section 27 ( 1 ) of the Civil Procedure Act, Cap. 21 provides that costs follow the event. By the event it means the result and outcome of the legal action. 100. In the instant case, the Ex – Parte Applicant has succeeded to the extent that it has been proved the Respondent acted unprocedurally in registering the caution without prior notice to them. However, it is also evident that efiorts to trace the Ex - Parte Applicant were made but proved futile though much would have been done as observed above. 101. For the above reasons and in the given circumstances, the court finds that it is just fair and reasonable that each of parties herein should bear its own costs. Conclusion & Disposition 102. Consequently, having carefully considered the totality of the available evidence, the analysis to the framed issues, the relevant provisions of law and the cited authorities, the Honourable Court specifically finds as follows:a. That Judgement be and is hereby entered in favour of the Ex – Parte Applicant. b. That the Judicial Review suit dated 2 nd September 2024 be and is hereby found to be meritorious and thus allowed as prayed. c. That each party to bear its own costs. It is ordered accordingly. JUDGEMENT DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS 17 TH DAY OF MARCH 2025 ……………………………… HON. MR. JUSTICE L.L NAIKUNI, ENVIRONMENT & LAND COURT AT KWALE . Ruling delivered in the presence of: a. Mr. Daniel Disii, the Court Assistant. b. Mr. Mungai Kamau Advocate for the Ex – Parte Applicants. c. M/s. Kiti Advocate for the Respondent. d. M/s. Aroka Advocate for the Interested Party. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3261/eng@2026-03-17 21

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