Republic v Narok County Government & another; Adventures Aloft Kenya Limited & 2 others (Ex parte) (Environment and Land Judicial Review Case E002 of 2026) [2026] KEELC 4355 (KLR)

1. Before this Court for determination is the Ex Parte Applicants’ Notice of Motion Application dated 2nd March 2026, brought under Sections 8 and 9 of the Law Reform Act, Cap. 26 Laws of Kenya and Order 53 of the Civil Procedure Rules, 2020. 2. The Ex Parte Applicants seek, inter alia, the following orders: 1. That the Order of Certiorari to remove into this Court for purposes of being quashed the Respondent’s decision contained in the letter dated 13th August 2025, approving the request by Aspire Aviation Limited to operate Hot Air Balloon Business in the Maasai Mara National Reserve, does and hereby issues; and 2. That the Order of Prohibition to restrain the Respondent from granting new approvals allowing for the operation of Hot Air Balloon Business in the Maasai Mara National Reserve during the lifespan of the Maasai Mara National Reserve Management Plan 2023 - 2032, does and hereby issues. 3. A declaration that by operation of the doctrine of legitimate expectation, and with the Respondent having issued the Maasai Mara National Reserve Management Plan 2023 - 2032 published in the Kenya Gazette on 1st March 2023, it was reasonable ELCLJR E002 OF 2026 Page 2 of 72

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for the Ex Parte Applicants to expect that no new approvals allowing for the operation of Hot Air Balloon Business in the Maasai Mara National Reserve would be granted until the expiry of the Management Plan, does and hereby issue. 4. A declaration that the approval of the request by Aspire Aviation Limited to operate Hot Air Balloon Business in the Maasai Mara National Reserve as conveyed by the Respondent’s letter dated 13th August 2025, was informed by ulterior motives or purposes calculated to prejudice the legal rights of the Applicants as contemplated under Sections 4, 6 and 7 of the Fair Administrative Action Act, Cap. 7L of the Laws of Kenya, and is contrary to Articles 21, 22, 27, 35, 42, 69 and 70 of the Constitution of Kenya, 2010, does and hereby issue. 5. Costs of these proceedings be paid by the Respondent and the Interested Party jointly and severally. 3. The application is supported by the Statutory Statement and the Verifying Affidavit sworn by PARAMJEET MHAJAN, a director of the 1st Ex Parte Applicant, who deposes that he is duly authorized to swear the Affidavit on behalf of all the Ex Parte Applicants pursuant to their respective Board ELCLJR E002 OF 2026 Page 3 of 72

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Resolutions and on the grounds as set out on the face of the application: 4. The Ex Parte Applicants contended that on 5th October 2022, the Chief Park Warden of the Maasai Mara National Reserve convened a consultative meeting with all hot air balloon operators to deliberate on compliance measures aimed at reducing environmental degradation within the Reserve, including the establishment of centralized take-off and landing areas; that at the stakeholders’ meeting held on 13th October 2022, it was resolved that balloon operators, particularly those operating around the Pose Plains, would significantly scale down their operations in order to conserve the ecosystem and prevent further environmental degradation. 5. Further, that, as part of the process of developing the Maasai Mara National Reserve Management Plan 2023 - 2032, the Respondent invited stakeholders to submit information regarding tourism facilities and operations within the Reserve. The Management Plan was thereafter approved by the Narok County Assembly and subsequently published in Kenya Gazette Special Issue Gazette Notice No. 2646 dated 1st March 2023. 6. That the Management Plan expressly prohibits the issuance of new ballooning concessions or the expansion of existing ELCLJR E002 OF 2026 Page 4 of 72

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concessions during its lifespan, including balloons taking off from outside the Reserve. Further, that the Respondent’s decision communicated through the letter dated 13th August 2025, approving Aspire Aviation Limited’s application to operate a hot air balloon business within the Reserve, was made in direct contravention of the express provisions of the Management Plan. 7. The Ex Parte Applicants further averred that the Interested Party had previously applied to the Kenya Civil Aviation Authority for an Air Service Licence to operate within the Reserve, and that the Respondent had objected to that application on environmental conservation grounds, and in accordance with the resolutions reached during the consultative meeting of 13th October 2022; and that the Respondent subsequently acted inconsistently and contrary to its own position by approving the Interested Party’s request to operate within the Reserve. 8. Further that they were taken by surprise by the impugned approval, having consistently been assured by the Respondent through various communications that no new ballooning concessions or expansion of existing concessions would be granted during the currency of the Management Plan; and that the impugned decision defeated their legitimate expectation that the Respondent would faithfully implement the provisions of the Management Plan. ELCLJR E002 OF 2026 Page 5 of 72

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9. The Ex Parte Applicants also averred that the Respondent acted contrary to the Constitution by failing to uphold the national values and principles of governance, including public participation, transparency, accountability and sustainable development, before making the impugned decision; and that the Respondent violated their constitutional rights, including the rights to fair administrative action, access to information, consumer protection and a clean and healthy environment guaranteed under Articles 35, 42, 46 and 47 of the Constitution. 10. Further that the impugned decision violated the provisions of the Fair Administrative Action Act by failing to accord affected stakeholders an opportunity to be heard, failing to invite public participation, failing to consider relevant matters, and failing to provide reasons for the decision; and that the Respondent’s decision was procedurally unfair, unreasonable, irrational, actuated by bad faith and improper motive, failed to take into account relevant considerations, was not proportionate to the interests affected, amounted to an abuse of discretion and power, and was therefore amenable to judicial review. 11. The Ex Parte Applicants also relied on the Wildlife Conservation and Management Act, and contended that the Respondent was under a statutory obligation to ELCLJR E002 OF 2026 Page 6 of 72

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manage the Maasai Mara National Reserve in accordance with the approved Management Plan, and could not lawfully issue approvals inconsistent with that Plan. They maintained that the impugned approval was ultra vires, illegal and void ab initio. 12. Further, that the legality and validity of the Maasai Mara National Reserve Management Plan 2023 – 2032, had previously been upheld by this Court, and therefore the Respondent was bound to implement it faithfully; and that the Respondent’s decision to approve the Interested Party’s operations without regard to the Management Plan was unlawful and incapable of legal justification. 13. Consequently, the Ex Parte Applicants urged this Court to find that the Respondent acted illegally, irrationally and in breach of the rules of natural justice, to quash the impugned decision approving the Interested Party’s operations within the Maasai Mara National Reserve, prohibit the Respondent from issuing further approvals contrary to the Management Plan, grant the declaratory reliefs sought, and award them the costs of the application. 14. The instant Judicial Review is opposed by the Respondent through the Replying Affidavit sworn on 27th April 2026, by JOHN MAYIANI TUYA, the County Secretary of the Respondent, who admitted that the Maasai Mara National ELCLJR E002 OF 2026 Page 7 of 72

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Reserve Management Plan 2023 - 2032 contains prescriptions regulating balloon operations within the Reserve, including a prohibition against the grant of new concessions or the expansion of existing concessions during the lifespan of the Management Plan. 15. He deponed that by a letter dated 16th May 2025, the Law Firm of MMA Advocates LLP requested the County Government of Narok to grant approval to Aspire Aviation Limited (formerly known as Ishara Air Balloon Safaris Limited), to operate a hot air balloon business within the Maasai Mara National Reserve. 16. The deponent further averred that upon receiving the request, the Respondent reviewed the application together with the supporting documents, and established that Aspire Aviation Limited had complied with all the applicable legal and regulatory requirements; and that the Interested Party had obtained the requisite approvals from the County Government Authority of Narok, (KCAA), the the Kenya National Civil Aviation Environment Management Authority (NEMA) and the Kenya Wildlife Service (KWS), all of which are the relevant regulatory agencies. 17. The Respondent further averred that, contrary to the Ex Parte Applicants’ reliance on the proceedings in Narok ELC ELCLJR E002 OF 2026 Page 8 of 72

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Petition No. E001 of 2023, the Court dismissed that Petition with costs after finding that it lacked merit, and holding that the Petitioners ought to have ventilated their grievances before the National Environment Tribunal. 18. Further, that the Petitioners in the said Petition subsequently lodged NCART Appeal No. E001 of 2023, namely Skyship Adventures Company Limited and Limited, Africa Adventures Aloft Eco - Kenya Limited & Balloon Safaris Limited versus Kenya Civil Aviation Authority and Ishara Air Balloon Safaris Limited, which appeal was likewise dismissed with costs. 19. According to the Respondent, the approval granted to the Interested Party on 13th August 2025, was made after the delivery of the aforesaid judgments, and authorized the Interested Party to operate hot air balloon business only from the designated take-off site within the Maasai Mara National Reserve. 20. The Respondent denies the Ex Parte Applicants’ allegation that the approval was granted secretly, maintaining that there was no secrecy surrounding the decision and that the approval was issued following due consideration of the Interested Party’s application. 21. The Respondent further averred that the approval granted to the Interested Party does not breach the provisions of ELCLJR E002 OF 2026 Page 9 of 72

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the Maasai Mara National Reserve Management Plan 2023 – 2032, as it remains subject to strict compliance with the Management Plan and all applicable laws, and regulatory requirements as expressly stipulated in the approval letter dated 13th August 2025. 22. That the impugned decision does not violate the Constitution, the Fair Administrative Action Act or the Wildlife Conservation and Management Act as alleged by the Ex Parte Applicants. Further, the Respondent also denied allegations of bias, maintaining that the Interested Party complied with all the applicable legal requirements and that neither the Interested Party nor the Ex Parte Applicants were denied an opportunity to present their respective cases through the legally established processes. 23. Consequently, the Respondent contended that the application is misconceived, devoid of merit and an abuse of the court process, and urged the Court to dismiss the instant Judicial Review Application with costs. 24. Similarly, the Interested Party opposed the Judicial Review through the Replying Affidavit sworn on 27th April 2026, by AZHAR MADHANI, a Director of the Interested Party, who deposed that he is duly authorized and competent to swear the Affidavit on its behalf. ELCLJR E002 OF 2026 Page 10 of 72

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25. The deponent averred that the Interested Party has undergone several changes of name, from Ishara Air Balloon Safaris Limited to Ascend Mara Limited, thereafter to Aspire Aviation Limited, and subsequently to Happy Elephant Experience Limited, all of which changes were duly registered. 26. The Interested Party further averred that it was initially granted approval and a no - objection by the Respondent on 19th February 2018, to operate hot air balloon services within the Maasai Mara National Reserve. Pursuant thereto, it Assessment undertook in an accordance Environmental with the Impact Environmental Management and Co - ordination Act and also submitted the Environmental Impact Assessment Project Report to the National Environment Management Authority (NEMA) for consideration. 27. Further, that upon considering the Project Report, NEMA issued the Interested Party with EIA Licence NEMA/EIA/PSL/18345, having been satisfied that No. the proposed hot air balloon operations posed no threat to the environment within the Maasai Mara National Reserve. Further, that the Interested party has since complied with the conditions of the licence, undertaken annual environmental audits, and consistently received favourable compliance reports from NEMA confirming adherence to ELCLJR E002 OF 2026 Page 11 of 72

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environmental laws, and the implementation of appropriate mitigation measures. 28. The Interested Party further deposed that after obtaining the requisite environmental approvals, it applied to the Kenya Civil Aviation Authority (KCAA) for an Air Service Licence. That KCAA duly gazetted the application, invited objections from the public, convened a public participation meeting on 13th January 2023, received representations from stakeholders, including the Ex Parte Applicants, and thereafter approved the Interested Party’s application for the issuance of the Air Service Licence. 29. That the Ex Parte Applicants unsuccessfully challenged the grant of the Air Service Licence before the National Civil Aviation Administrative Review Tribunal in Tribunal Appeal No. E001 of 2023, wherein the Tribunal found that KCAA had followed a fair administrative process before issuing the licence. That the Ex Parte Applicants subsequently lodged an appeal before the High Court in HCSCA No. E001 of 2025, challenging the Tribunal’s decision. 30. That the Ex Parte Applicants also instituted Narok ELC Petition No. E001 of 2023, challenging, inter alia, the issuance of the Air Service Licence and seeking orders of certiorari and prohibition against KCAA. That the Petition was ELCLJR E002 OF 2026 Page 12 of 72

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dismissed by this Court on 8th October 2024, the Court having found that the alleged constitutional violations had not been established, and that the issues raised had been overtaken by events following the lapse of the impugned Air Service Licence. 31. Further, that the Ex Parte Applicants thereafter instituted a fresh appeal before Administrative Review the National Tribunal, Civil Aviation challenging KCAA’s decision to grant a one - year Air Service Licence to the Interested Party, and subsequently sought status quo orders before the Tribunal. According to the Interested Party, the Tribunal dismissed the application for status quo orders on 3rd March 2026, holding that granting such orders would effectively determine the appeal before hearing it; and that the Ex Parte Applicants have since appealed against that decision before the High Court, and obtained an order staying the proceedings before the Tribunal. 32. The Interested Party contended that the Applicants have persistently instituted Ex Parte multiple proceedings aimed at preventing it from conducting hot air balloon operations within the Maasai Mara National Reserve and that the present Judicial Review proceedings form part of that broader attempt to stifle competition in the hot air balloon business. ELCLJR E002 OF 2026 Page 13 of 72

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33. The Interested Party further averred that by a letter dated 16th May 2025, it requested the Respondent to approve its operations within the Maasai Mara National Reserve, and that the request was not a fresh application for a concession, but was founded upon the approval and no - objection previously granted by the Respondent on 19th February 2018. 34. That upon considering the request, the Respondent approved the Interested Party’s operations through the letter dated 13th August 2025, permitting it to operate hot air balloon services from the designated take - off site within the Maasai Mara National Reserve in compliance with the Maasai Mara National Reserve Management Plan 2023 – 2032, and all other applicable laws and regulations; and that as the custodian of the Management Plan, the Respondent duly considered all relevant legal and regulatory requirements before granting the approval. 35. The Interested Party further raised a Preliminary Objection on limitation, and contended that under Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, an application for Orders of Certiorari ought to have been filed not later than 13th February 2026, being six months from the date of the impugned decision; and that the present application, having been filed on 2nd March 2026, is statute - barred. ELCLJR E002 OF 2026 Page 14 of 72

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36. The Interested Party further contended that the Ex Parte Applicants failed to demonstrate any violation of the principles of natural justice or fair administrative action and that the application merely seeks to prevent the Interested Party from lawfully carrying on its business within the Maasai Mara National Reserve despite having obtained all the requisite approvals from the Respondent, the Kenya Civil Aviation Authority, the National Environment Management Authority and other relevant regulatory agencies. 37. Consequently, the Interested Party urged this Court to find that the instant Judicial Review is incompetent, time - barred, misconceived and devoid of merit, and urged the Court to struck out and/ or in the alternative, to dismiss it entirely with costs. 38. The Interested Party also filed its Statement of Grounds of Opposition dated 27th April 2026 in opposition to the instant Judicial Review, and contended that this Court lacks jurisdiction to hear and determine the Judicial Review Application on the ground that it was filed outside the mandatory timelines prescribed under Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules. ELCLJR E002 OF 2026 Page 15 of 72

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39. The Interested Party consequently urged the Court to strike out the Application for being incompetent, fatally defective and an abuse of the court process, and to dismiss the same with costs to the Interested Party. 40. With leave of the Court granted on 28th April 2026, the 1st Ex-parte Applicant filed a Further Affidavit sworn by PARAMJEET MHAJAN on 6th May 2026 in response to the Respondent’s Replying Affidavit and the Interested Party’s Replying Affidavit and Grounds of Opposition both dated 27th April 2026. 41. The deponent averred that although the Court had, on 28th April 2026, invoked Article 159(2)(d) of the Constitution and deemed the Respondent’s Replying Affidavit together with the Interested Party’s Grounds of Opposition and Replying Affidavit as properly on record, the said pleadings had been filed outside the timelines stipulated in the Court’s Orders of 2nd March 2026 without prior leave and were therefore irregular. 42. He relied on Dado v Godhana & 2 Others (2023) KECA 869 (KLR) and National Bank of Kenya Ltd v Wilson Ndolo Ayah, Civil Appeal No. 119 of 2002 [2009] KLR 762, wherein the Court of Appeal held that pleadings filed outside prescribed ELCLJR E002 OF 2026 timelines without leave cannot Page 16 of 72

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subsequently be regularized and that the High Court is bound by decisions of superior courts. 43. It was further deponed that by deeming the Respondent’s and Interested Party’s pleadings as properly filed despite their irregularity, the Court would be unable to determine the Judicial Review proceedings within the mandatory ninety days prescribed under Section 8 of the Fair Administrative Action Act, thereby occasioning prejudice to the Applicants. Nevertheless, the deponent stated that since the Court’s directions remained binding unless set aside, varied or vacated, he would respond to the Respondent’s and Interested Party’s pleadings. 44. In response to the Respondent’s Replying Affidavit, the deponent asserted that paragraph 5 thereof amounted to an express admission that the Maasai Mara National Reserve Management Plan prohibited new concessions or the expansion of existing concessions, thereby confirming the Applicants’ case. He further contended that the Respondent’s own annexure marked “JMT – 1” demonstrated that the Interested Party was seeking a new concession, as it referred to an intention to commence operations, sought a letter of approval, described the proposed services as novel and made no reference to renewal of any existing concession. ELCLJR E002 OF 2026 Page 17 of 72

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45. The deponent further regarding the position challenged Interested the Party’s Respondent’s alleged prior approval. He pointed out that while the Respondent’s Replying Affidavit asserted the existence of approvals issued in 2018, the Respondent had elsewhere expressly denied issuing any approval to the Interested Party in 2018. He argued that the Respondent could not approbate and reprobate by simultaneously asserting and denying the existence of the same approval, rendering paragraphs 9, 10 and 12 of the Replying Affidavit untenable. 46. The deponent further averred that the Respondent’s reliance on Narok ELC Petition No. E001 of 2023, was misplaced because the Petitioners therein were not the Interested Parties in the present proceedings. He also maintained that paragraphs 13 and 14 of the Respondent’s Replying Affidavit merely denied illegality without demonstrating how the impugned decision complied with the applicable law. 47. Responding to the Interested Party’s Grounds of Opposition, the deponent contended that the Interested Party had misapprehended the law relating to computation of time. He deponed that although the impugned decision was dated 13th August 2025, it had been concealed from the Applicants until 22nd December 2025, when they were served with the 2nd Respondent’s Replying Affidavit in ELCLJR E002 OF 2026 Page 18 of 72

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National Civil Aviation Administrative Review Tribunal Appeal No. E001 of 2025. The Applicants thereafter filed the Chamber Summons for leave on 11th February 2026, obtained leave on 2nd March 2026, and filed and served the substantive Notice of Motion on the same day. 48. The deponent further relied on Order 50 Rules 1 and 4, of the Civil Procedure Rules and contended that time ceased to run between 21st December 2025, and 13th January 2026, being 24 days. Consequently, the statutory six-month period, which would otherwise have lapsed on 13th February 2026, was extended to 9th March 2026. Since the Chamber Summons seeking leave had been filed on 11th February 2026, the Applicants maintained that the Application was commenced within time and that the grant of leave by the Court necessarily signified compliance with Order 53 Rule 2 of the Civil Procedure Rules. It was further contended that if the Interested Party believed the leave had been granted in error, the proper remedy lay in an appeal against the leave order rather than a collateral challenge. 49. The deponent also challenged the Interested Party’s Replying Affidavit and contended as incompetent and misleading. He asserted that the Interested Party’s claim that approvals had been granted in 2018 was demonstrably false because the Interested Party had only been incorporated on 9th November 2021, under the name Ishara Air Balloon ELCLJR E002 OF 2026 Page 19 of 72

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Safaris Limited, making it impossible for it to have requested approval in January 2018 or received an approval and no objection letter in February 2018. 50. The deponent further averred that the Interested Party’s extensive references to previous litigation were irrelevant to the present dispute, whose sole subject was the Respondent’s decision contained in the letter dated 13th August 2025. He added that if those earlier proceedings truly determined the issues in controversy, the Interested Party ought to have raised a plea of res judicata instead of relying on unrelated litigation. 51. Lastly, the deponent disputed the Interested Party’s allegations that the present proceedings were intended to stifle competition. He maintained that any complaint relating to unfair competition properly fell within the jurisdiction of the Competition Authority of Kenya under the Competition Act and no such complaint had been lodged. He reiterated that the Interested Party had also failed to demonstrate complied how with the the law Respondent’s impugned decision despite Applicants having the specifically identified the alleged statutory violations. 52. The matter was canvassed by way of written submissions. 53. In support of their case as stipulated in the instant Judicial Review, the ELCLJR E002 OF 2026 Ex Parte Applicants filed their written Page 20 of 72

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submissions dated 24th April 2026 through Advocates, wherein they raised the following issues for determination: a) What is the effect of the failure by the Respondent and the Interested Party to comply with the Court’s Order of 2nd March 2026, granting them leave to file their responses by 23rd March 2026, and 17th March 2026? b) Is the Notice of Motion Application dated 2 nd March 2026 merited? 54. On the first issue, the Ex Parte Applicants submitted that the Respondent and the Interested Party failed to comply with the timelines prescribed by the Court for filing their responses, and that any documents filed outside those timelines, without prior leave of the Court, were nullities incapable of being relied upon. 55. In support of that submission, the Ex-parte Applicants relied on Kiru Tea Factory Company Limited v Stephen Maina Githiga & 13 Others (2019) eKLR, where the Court of Appeal held that where leave of the Court is required for the filing of documents, any pleading filed after the lapse of the period granted and without leave of the Court is a nullity liable to be struck out. Further, that the Respondent’s and Interested Party’s responses having been filed outside the ELCLJR E002 OF 2026 Page 21 of 72

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timelines granted by this Court without obtaining extension of time were incompetent and ought to be disregarded. 56. The Ex-parte Applicants further relied on Suleiman Said Shabal v Independent Electoral and Boundaries Commission & 3 Others (2014) eKLR, wherein the Court of Appeal adopted the celebrated dictum of Lord Denning in Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169, that where an act is void, it is incurably bad, automatically null and void without the necessity of a formal order setting it aside, and that one cannot place something on nothing and expect it to stand. That the Respondent’s and Interested Party’s responses, having been filed contrary to the Court’s directions, were void ab initio and incapable of conferring any legal consequence. 57. The Ex - parte Applicants further submitted that if the Court were minded to overlook the late filing, it should nonetheless decline to do so because procedural timelines exist to guarantee fairness to all litigants. In that regard, they relied upon the dissenting opinion of Justice Patrick Kiage in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others (2013) eKLR, which was subsequently adopted by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others (2014) eKLR. ELCLJR E002 OF 2026 Page 22 of 72

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58. They also Supreme submitted that in the said decision, the Court emphasized that Article 159 of the Constitution was never intended to overthrow rules of procedure or create an anarchic free-for-all in the administration of justice; that courts must insist upon compliance with prescribed rules, and timelines; that parties who diligently comply with the rules should not be prejudiced by those who disregard them; and that courts cannot aid the bending or circumvention of procedural rules, as doing so unfairly harms innocent litigants who strive to abide by the law. 59. Further, that the Supreme Court in the said Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others ( supra) held that an appeal filed out of time before leave to extend time has been obtained is a nullity, and that a court cannot remedy an illegality by subsequently extending time. They contended that the same principle equally applied to pleadings filed outside timelines fixed by the Court without prior leave and, consequently, this Court ought not admit or consider the Respondent’s and Interested Party’s responses. 60. Therefore, the consequence of the Respondent’s and Interested Party’s failure to comply with the Court’s timelines was that the substantive Notice of Motion dated 2nd March 2026 remained effectively uncontroverted and that the ELCLJR E002 OF 2026 Page 23 of 72

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averments contained therein ought to be deemed as admitted. 61. Turning to the merits of the Application, the Ex-parte Applicants submitted that the evidence placed before the Court established that on 5th October 2022, the Chief Park Warden of the Maasai Mara National Reserve convened all Hot Air Balloon Operators for a consultative meeting held on 13th October 2022 at the Sekenani Chief Warden’s Camp to deliberate on measures aimed at reducing environmental degradation within the Reserve. 62. Further, that the principal resolution reached during that consultative meeting was that Hot Air Balloon Operators would significantly scale down their operations, particularly around the Pose Plains area, in Order to conserve the ecosystem and prevent further environmental degradation. 63. Further, that when the Interested Party subsequently applied to the Kenya Civil Aviation Authority for an Air Service Licence to operate Hot Air Balloon Services within the Maasai Mara National Reserve, the Respondent itself lodged formal written objections opposing the grant of the licence. They argued that the Respondent’s objections were consistent with the resolutions reached during the consultative meeting, and demonstrated the Respondent’s ELCLJR E002 OF 2026 Page 24 of 72

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commitment to preserving the ecological integrity of the Reserve. 64. That the Respondent subsequently reinforced that position when the Narok County Assembly approved the implementation of the Maasai Mara National Reserve Management Plan 2023 - 2032, which was thereafter duly gazetted, thereby giving it the force of law. 65. It was their further submissions that Chapter 4.6 of the Maasai Mara National Reserve Management Plan 2023 – 2032, expressly provides that no new ballooning concessions or expansion of existing concessions shall be permitted within the Maasai Mara National Reserve during the lifespan of the Plan, including balloon operations taking off from outside the Reserve. 66. They also submitted that despite those express provisions, the Kenya Civil Aviation Authority ultimately issued the Interested Party with an Air Service Licence based, inter alia, on what was represented as the Respondent's approval. They argued that the Respondent subsequently disowned that purported approval and expressly denied having issued it, thereby demonstrating that the Interested Party’s licence had been obtained without a valid approval from the statutory manager of the Reserve. ELCLJR E002 OF 2026 Page 25 of 72

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67. That notwithstanding its previous objections, the gazetted Management Plan, and its own publicly declared policy that no new ballooning concessions would be granted, the Respondent abruptly issued the Interested Party with the impugned letter dated 13th August 2025, approving its request to operate a Hot Air Balloon business within the Maasai Mara National Reserve. Further, that the said decision directly contradicted both the Management Plan and the Respondent’s earlier position. 68. On procedural fairness, the Ex-parte Applicants submitted that the Respondent, being a public authority, was bound to comply with the principles of natural justice and fair administrative action before making a decision capable of adversely affecting existing concession holders. They argued that no notice of the Interested Party’s request was issued to them; no hearing was conducted; and no opportunity was afforded to them to make representations before the impugned approval was granted. 69. Further, that the Respondent’s conduct gave rise to a legitimate expectation that no new ballooning concession would be issued during the currency of the Maasai Mara National Reserve Management Plan 2023 - 2032. That such expectation arose not only from the gazetted Management Plan itself, but also from the Respondent’s repeated assurances and conduct, including its ELCLJR E002 OF 2026 Page 26 of 72

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earlier objections to the Interested Party’s licensing process and its public communications that no additional ballooning concessions would be granted. 70. In support of the doctrine of legitimate expectation, reliance was placed on Pravin Bowry v Ethics and AntiCorruption Commission (2013) eKLR, wherein the Court recognized that a legitimate expectation may arise where a public authority has made representations or conducted itself in a manner that leads an individual to reasonably expect that a particular state of affairs will continue. Further, that they legitimately expected the Respondent to adhere to the Management Plan and its own publicly declared position until the expiry of the Plan. 71. Reliance was also placed on R v Hon. Chief Justice of Kenya & Others, as cited with approval in Pravin Bowry v Ethics and Anti-Corruption Commission (2013) eKLR, for the proposition that where a public authority has created a legitimate expectation that a benefit or existing state of affairs will continue, it must afford the affected persons an opportunity to be heard before withdrawing or altering that benefit. 72. They also relied on Republic v The Judicial Commission of Inquiry into the Goldenberg Affair & Others ex parte Hon. Professor George Saitoti (2006) eKLR, wherein the ELCLJR E002 OF 2026 Page 27 of 72

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Court approved Lord Diplock’s exposition in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, and observed that a public authority acts unfairly where it departs from an established policy, promise or undertaking without first consulting those who had legitimately relied upon it. That the Respondent unilaterally abandoned its previously declared policy without consultation or notice, thereby violating the rules of natural justice. 73. The Ex-parte Applicants also submitted that the impugned decision was equally illegal because the Respondent could not lawfully resile from its previous representations after the Ex-parte Applicants had acted upon them by restructuring and scaling accordance down with the their ballooning resolutions operations reached during in the consultative meeting and the provisions of the Management Plan. 74. In support of that submission, they relied on Benjamin Ayiro Shiraku v Fozia Mohammed (2012) eKLR, wherein the Court, adopting the principle in Combe v Combe [1951] 2 KB 215, held that where one party has by words or conduct made a promise intended to affect legal relations and the other party has acted upon that promise, the promisor cannot subsequently revert to the previous legal position to the detriment of the promisee. Further, that the Respondent was estopped from abandoning its earlier ELCLJR E002 OF 2026 Page 28 of 72

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assurances that no new ballooning concessions would be granted within the Maasai Mara National Reserve during the subsistence of the Management Plan. 75. Therefore, the Respondent’s decision embodied in the letter dated 13th August 2025, violated the doctrine of legitimate expectation, offended the principles of natural justice and procedural fairness, contravened the provisions of the Maasai Mara National Reserve Management Plan 2023 – 2032, and amounted to an unlawful exercise of public power. They accordingly urged the Court to allow the instant Judicial Review and grant the orders sought therein. 76. The Ex Parte Applicants subsequently filed Supplementary Written Submissions dated 7th May 2026, and submitted that the Supplementary Submissions were intended to buttress, rather than replace, their earlier Written Submissions dated 24th April 2026. 77. They identified two additional issues for determination, namely: a. whether the Judicial Review Application seeking orders of certiorari and prohibition was filed outside the prescribed statutory period; and b. whether the Respondent’s letter dated 13 th August 2025 constituted the grant of a new ELCLJR E002 OF 2026 Page 29 of 72

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concession or merely an extension of an existing concession. 78. On whether the Judicial Review Application was filed out of time, the Ex Parte Applicants submitted that although the impugned decision was contained in the Respondent’s letter dated 13th August 2025, the existence of that letter had been concealed from them until 22nd December 2025, when they were served with the 2 nd Respondent’s Replying Affidavit dated 8th December 2025 in National Civil Aviation Administrative Review Tribunal Appeal No. E001 of 2025. 79. Further, that upon becoming aware of the decision, they promptly commenced these proceedings by filing the Ex Parte Chamber Summons seeking leave on 11th February 2026, whereupon leave was granted on 2nd March 2026, before the substantive Notice of Motion was filed and served. 80. Further, that the Interested Party’s contention that the sixmonth limitation period expired on 13th February 2026, failed to take into account the provisions of Order 50 Rules 1 and 4 of the Civil Procedure Rules governing computation of time. They argued that time ceased to run between 21st December 2025 and 13th January 2026, both dates inclusive, thereby extending the statutory period by 24 more ELCLJR E002 OF 2026 days, and moving the deadline from 13th Page 30 of 72

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February 2026 to 9th March 2026. Consequently, they maintained that their Chamber Summons filed on 11th February 2026, was lodged well within the statutory period. 81. Further, that the grant of leave by this Court on 2nd March 2026, necessarily meant that the requirements of Order 53 Rule 2 of the Civil Procedure Rules had been satisfied. They argued that if the Interested Party considered the grant of leave erroneous, its remedy lay in appealing against the leave order, competence and of not the by collaterally proceedings challenging through Grounds the of Opposition. 82. Turning to the second issue, the Ex Parte Applicants submitted that the Respondent’s own Replying Affidavit and, in particular, the annexure marked “JMT-1”, demonstrated that the impugned approval related to a completely new concession, rather than the renewal or continuation of an existing one. They argued that if the Interested Party had merely been seeking renewal of an existing concession, there would have been no difficulty in referring to an earlier approval reference number. 83. That instead, the Interested Party expressly sought approval to commence operations, described the proposed business as introducing novel services not previously available in Kenya, and requested the Respondent to ELCLJR E002 OF 2026 Page 31 of 72

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legitimize its intended operations, all of which unmistakably pointed to the grant of a fresh concession. 84. Further, that the Interested Party’s contention that it had received approval, and a no objection letter from the Respondent in 2018, was factually impossible. They argued that official company records annexed to the Further Affidavit demonstrated that the Interested Party was only incorporated on 9th November 2021, under the name Ishara Air Balloon Safaris Limited. 85. Consequently, it could neither have requested approval in January 2018 nor received an approval and no objection letter in February 2018, as alleged in the Interested Party’s Replying Affidavit. Therefore, it was their contention that the Respondent’s letter dated 13th August 2025, constituted the grant of a new concession expressly prohibited under the Maasai Mara National Reserve Management Plan 2023 - 2032. 86. On their part, the Respondent filed its Written Submissions dated 28th May 2026 Advocates, through Maina Ngaruiya & Co. in opposition to the instant Judicial Review Application and submitted that the Ex Parte Applicants had failed to establish any basis for the grant of Judicial Review remedies, maintaining that the impugned decision contained in the letter ELCLJR E002 OF 2026 dated 13th August 2025, was lawful, Page 32 of 72

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procedurally proper, reasonable and made within the Respondent’s statutory mandate. 87. The Respondent further submitted that the Ex Parte Applicants’ challenge was founded on the contention that the Maasai Mara National Reserve Management Plan 2023 – 2032, prohibited the issuance of new ballooning concessions or the expansion of existing concessions during the lifespan of the Plan, yet the Respondent approved the Interested Party’s request to operate a hot air balloon business within the Reserve through its letter dated 13th August 2025. The Respondent maintained that the impugned decision was lawful and did not violate either the Management Plan or the Fair Administrative Action Act. 88. The Respondent also submitted that the present proceedings formed part of a series of litigation instituted by the Ex Parte Applicants challenging the Interested Party’s operations within the Maasai Mara National Reserve. It referred to Narok ELC Petition No. E001 of 2023, National Civil Aviation Administrative Review Tribunal Appeal No. E001 of 2023, High Court Civil Appeal No. E001 of 2025, National Civil Aviation Administrative Review Tribunal Appeal No. E001 of 2025, and the subsequent appeal arising therefrom. That the Ex Parte ELCLJR E002 OF 2026 Page 33 of 72

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Applicants had consistently opposed the Interested Party’s operational approvals before different forums. 89. Further, that Judicial Review jurisdiction is supervisory in nature and is concerned only with examining the legality, rationality and procedural propriety of the impugned decision-making process rather than the merits of the decision itself. 90. In support of this proposition, the Respondent relied on Republic v Commissioner of Kenya Revenue Authority & 4 Others; Tax Appeals Tribunal (Interested Party); Gralot & another (Ex parte Applicants) (Judicial Review Application 119 of 2021) [2025] KEHC 16662 (KLR), wherein the Court, while citing Patrick Macharia Nderitu v Director of CID & another [2017] KEHC 4275 (KLR), restated that Judicial Review is available where a decision is tainted by illegality, irrationality or procedural impropriety. 91. Further, that, being established under Article 176 of the Constitution and the County Governments Act, it is the lawful custodian and manager of the Maasai Mara National Reserve and is responsible for tourism administration, conservation policy implementation and management planning within the Reserve. It contended that the impugned approval was issued after reviewing the Interested ELCLJR E002 OF 2026 Page 34 of 72

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Party’s application and confirming that it had obtained all the requisite approvals from the County Government of Narok, the Kenya Civil Aviation Authority (KCAA), the National Environment Management Authority (NEMA) and the Kenya Wildlife Service (KWS). 92. The Respondent further submitted that the approval granted to the Interested Party expressly required strict compliance with the Maasai Mara National Reserve Management Plan 2023 – 2032, and all other applicable laws and regulations. Therefore, the approval did not contravene Clause 4.6 of the Management Plan prohibiting new ballooning concessions or the expansion of existing concessions during the lifespan of the Plan. 93. On the prayer for an Order of prohibition, the Respondent submitted that, as the statutory custodian of the Maasai Mara National Reserve, it was under a legal obligation to consider and determine applications for approvals within its mandate. It argued that granting the order sought would effectively restrain it from exercising its constitutional and statutory functions. 94. In support of this submission, the Respondent relied on Republic v Theuri Githae & Another [2007] eKLR, wherein the Court observed that Judicial Review is concerned with the decision - making process, rather than the merits of ELCLJR E002 OF 2026 Page 35 of 72

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the decision and that an Order of prohibition issues only to prevent an anticipated breach of the law. 95. The Respondent further submitted that it had acted lawfully, reasonably and within its statutory mandate and that the Ex Parte Applicants had failed to demonstrate any illegality, irrationality, procedural impropriety or excess of jurisdiction capable of attracting Judicial Review remedies. Consequently, it urged the Court to dismiss the instant Judicial Review application. 96. With regard to the declaratory reliefs sought by the Ex Parte Applicants, the Respondent submitted that declarations are not among the remedies available in Judicial Review proceedings under Section 8 of the Law Reform Act. In support of this submission, it relied on Republic v Registrar of Societies & 3 Others Ex Parte Lydia Cherubet (Interim Chairperson) & 2 Others [2016] KEHC 8055 (KLR), wherein the Court cited Sanghani Investment Limited v Officer in Charge Nairobi Remand and Allocation Prison [2007] 1 EA 354, for the proposition that Judicial Review proceedings are confined to the remedies of mandamus, certiorari and prohibition and do not extend to declaratory reliefs. ELCLJR E002 OF 2026 Page 36 of 72

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97. Accordingly, the Respondent urged the Court to find that the instant Judicial Review Application lacks merit and should be dismissed with costs. 98. The Interested Party on its part Submissions dated 29th May 2026, in filed its Written opposition to the instant Judicial Review and identified the following issues for determination: a. Whether this Honourable Court was justified in granting leave to file its responses out of time; b. Whether this Honourable Court had jurisdiction to entertain the Ex Parte Applicants’ Application; and c. Whether the Ex Parte Applicants were entitled to the orders sought. 99. On the first issue, the Interested Party submitted that this Court’s decision made on 28th April 2026, allowing the Interested Party’s Replying Affidavit and Grounds of Opposition both dated 27th April 2026, to be filed out of time was proper and merited in law. 100. Further, that this Court bears the cardinal duty of upholding and giving effect to the overriding objective under Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(d) of the Constitution, which require courts ELCLJR E002 OF 2026 Page 37 of 72

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to administer justice in a just, expeditious, proportionate and affordable manner without undue regard to procedural technicalities. It argued that the Oxygen Principles were introduced to shift the focus from rigid adherence to procedural requirements to the substantive ends of justice. 101. The Interested Party further submitted that the Ex Parte Applicants had relied on authorities decided by appellate courts exercising appellate jurisdiction, whose approach to timelines differed from that applicable before a court exercising original jurisdiction in Judicial Review proceedings. 102. Further, that Administrative although Action Act Section 8 of the requires Judicial Fair Review Applications to be heard within ninety days, the provision does not require automatic dismissal where that period is not met. The Interested Party contended that dismissing proceedings solely on account of delay would occasion severe prejudice and undermine a party’s constitutional right to be heard. 103. In support of that submission, the Interested Party relied on Republic & another v National Land Commission; Millicons Limited (Environment and & another Land (Interested Case Judicial Parties) Review Application 31 of 2018) [2023] KEELC 18380 (KLR), ELCLJR E002 OF 2026 Page 38 of 72

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where the Court held that Section 8 of the Fair Administrative Action Act does not provide that a Judicial Review Application not heard within the stipulated period should be dismissed, and that procedural technicalities should not be used to drive a litigant from the seat of justice. 104. The Interested Party also relied on Otsianda v Masime (High Court Civil Appeal E531 of 2022) [2023] KEHC 1294 (KLR), which cited Nicholas Kiptoo Arap Korir Salat v IEBC & 6 Others, CA Application No. 228 of 2013, where the Court held that lapses in form and procedure that neither go to jurisdiction nor occasion prejudice should not invalidate proceedings, and that justice ought not to be sacrificed on the altar of strict procedural compliance. 105. Further, that the delay in filing the Interested Party’s pleadings arose from the bereavement of its Advocate on Record, a circumstance beyond its control, and that this Court properly exercised its discretion in extending time in accordance with Article 159(2)(d) of the Constitution. The Interested Party contended that the Ex Parte Applicants could not, in good conscience, object to the indulgence granted by the Court in those circumstances. 106. On the issue of jurisdiction, the Interested Party submitted that this Court lacked jurisdiction to entertain ELCLJR E002 OF 2026 Page 39 of 72

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the Ex Parte Applicants’ Judicial Review Application on three grounds, namely that the Application was filed outside the statutory limitation period prescribed under Section 9 of the Law Reform Act, that the Ex Parte Applicants failed to exhaust mechanisms the alternative provided under dispute Section 9 resolution of the Fair Administrative Action Act, and the County Governments Act, and that they had engaged in multiple proceedings concerning the same subject matter before different courts and tribunals. 107. On limitation, the Interested Party relied on Section 9(3) of the Law Reform Act, submitting that an application for leave to commence Judicial Review proceedings seeking an order of certiorari must be made within six months of the impugned decision. It argued that the impugned letter was dated 13th August 2025 and that six months had lapsed by the time the present proceedings were instituted. 108. The Interested Party alson submitted that the Ex Parte Applicants’ contention that the Respondent’s letter had been concealed from them was untenable. It argued that the Ex Parte Applicants had all along been litigating substantially the same issues before the National Civil Aviation Administrative Review Tribunal Case No. E001 of 2025: Adventures Aloft Kenya Limited & 2 Others v Kenya Civil Aviation Authority & Ishara Air Balloon Safaris ELCLJR E002 OF 2026 Page 40 of 72

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Limited, and could not therefore claim ignorance of the impugned approval. 109. Further, that the Ex Parte Applicants were at liberty to request information from the Respondent, being a public institution constitutionally obligated to provide access to information relating to the licensing process. 110. In support of that submission, the Interested Party relied on Skyship Company Limited & 3 Others v Kenya Civil Aviation Authority; National Environment Management Authority & 2 Others (Interested Parties) (Environment and Land Constitutional Petition E001 of 2023) [2024] KEELC 6523 (KLR), wherein the Court held that information held by the State is accessible upon request, and that the Petitioners had failed to demonstrate any violation of Article 35 of the Constitution, where they had not sought such information. 111. The Interested Party further submitted that the Ex Parte Applicants’ reliance on Order 50 of the Civil Procedure Rules in computing time was misconceived. It argued that Judicial Review proceedings constitute a special jurisdiction governed by the Law Reform Act and Order 53 of the Civil Procedure Rules, and are not subject to the general provisions of the Civil Procedure Act and Rules regarding computation of time. ELCLJR E002 OF 2026 Page 41 of 72

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112. In support of that proposition, the Interested Party relied on Michael Juma Otieno v Executive Director, NonGovernmental Organizations Co-ordination Board, Misc. Civil Case No. 199 of 2014, where the Court, citing Paul Mafwabi Wanyama v Republic & Another, Kisumu Civil Appeal No. 41 of 2013, held that Judicial Review proceedings are special proceedings under the Law Reform Act and that the provisions of the Civil Procedure Act and Rules ought not to be imported into such proceedings. 113. On the doctrine of exhaustion, the Interested Party submitted that the Ex Parte Applicants had approached the Court without first exhausting the available statutory remedies, contrary to Section 9 of the Fair Administrative Action Act, 2015. 114. The Interested Party also submitted that the Respondent, being a County Government established under Article 176 of the Constitution and governed by the County Governments Act, 2012, provides statutory grievance mechanisms under Sections 88 and 89 of the County Governments Act, through which any citizen may petition or challenge decisions made by the County Government. 115. Further, that the Ex Parte Applicants ought first to have lodged their grievance with the Respondent, who maintained an accessible complaints and grievance handling mechanism ELCLJR E002 OF 2026 Page 42 of 72

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through which complaints could be made in person, by telephone, in writing or electronically. It argued that there was no evidence that the Ex Parte Applicants attempted to invoke those mechanisms before instituting these proceedings. 116. Further, that the Ex Parte Applicants' failure to utilize the available statutory mechanisms offended the doctrine of exhaustion, which requires parties to pursue the dispute resolution procedures specifically provided by statute before resorting to litigation. 117. In support of these submission, the Interested Party relied on William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) (2020) eKLR, where the Court reiterated that the doctrine of exhaustion promotes the resolution of disputes through the mechanisms established by law before judicial intervention is sought. 118. The Interested Party also relied on Speaker of the National Assembly v Karume [1992] KLR 21, wherein the Court of Appeal held that where the Constitution or an Act of Parliament provides a clear procedure for the redress of a particular grievance, that procedure ought to be strictly followed. ELCLJR E002 OF 2026 Page 43 of 72

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119. Further reliance was sought on Oloo v Governor Homabay County & 3 Others (Petition E044 of 2022) [2023] KEELRC 1561 (KLR), where the Court reaffirmed that litigants challenging decisions of County Governments ought first to exhaust the petition, and grievance mechanisms established under the County Governments Act, before approaching the Court. 120. The Interested Party further submitted that the Ex Parte Applicants engaged in forum shopping by instituting numerous proceedings before different courts and tribunals concerning substantially the same approvals and licenses issued to the Interested Party. 121. That following the dismissal of National Civil Aviation Administrative Review Tribunal Case No. E001 of 2023, the Ex Parte Applicants lodged Milimani HCSCA Case No. E001 of 2025, challenging the Tribunal's decision, they also filed Narok ELC Petition No. E001 of 2023, which was dismissed, before instituting National Civil Aviation Administrative Review Tribunal Case No. E001 of 2025, which remains pending, and subsequently lodging Milimani HCTA Case No. E023 of 2026, challenging the Tribunal’s interlocutory decision. 122. Further, that demonstrated ELCLJR E002 OF 2026 a the multiplicity deliberate attempt of by proceedings the Ex Parte Page 44 of 72

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Applicants to relitigate substantially the same disputes before different fora in the hope of obtaining favourable orders, thereby abusing the judicial process. 123. Therefore, the Interested party urged the Court to find that it lacked jurisdiction to entertain the present Judicial Review proceedings. 124. On the third issue, the Interested Party submitted that the Ex Parte Applicants had failed to establish any basis upon which the Judicial Review remedies sought could properly issue. That the impugned approval granted by the Respondent on 13th August 2025, did not constitute the grant of a fresh concession but merely related to approvals issued in furtherance of an existing approval that had initially been granted on 19th February 2018, following the Interested Party’s application dated 8th January 2018. 125. Further, that it had lawfully obtained all the requisite approvals from the relevant regulatory agencies, including the Respondent, the National Environment Management Authority (NEMA) and the Kenya Civil Aviation Authority (KCAA), before commencing its operations. 126. That the Ex Parte Applicants’ challenge was inconsistent with their alleged environmental concerns because they themselves continued to operate hot air balloon businesses within the Maasai Mara National Reserve. Further, ELCLJR E002 OF 2026 that Page 45 of 72

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the dispute was therefore driven by commercial competition, rather than genuine public interest or environmental protection. 127. It also submitted that the Ex Parte Applicants had consistently sought to prevent the Interested Party from carrying on its business through numerous suits filed before different judicial and quasi-judicial bodies, all revolving around the same approvals and licenses. Consequently, it urged the Court to take judicial notice of the multiplicity of proceedings filed by the Ex Parte Applicants and to find that their conduct amounted to abuse of the court process and forum shopping. 128. In support of the submission, reliance was sought on Komen & another v Republic (Miscellaneous Criminal Application E160 of 2025) [2025] KEHC 10294 (KLR), wherein the Court observed that litigants who continually file multiple proceedings seeking substantially similar reliefs burden the judicial system and that any appearance of forum shopping ought to invite an immediate stop order from the courts. 129. Further, that the Ex Parte Applicants had not approached the Court with clean hands, having deliberately instituted numerous proceedings while remaining active participants in the same hot air balloon business they now sought to restrict. ELCLJR E002 OF 2026 Page 46 of 72

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130. Therefore, it urged the Court to decline the Judicial Review remedies sought, contending that the Application was devoid of merit and that granting the Orders sought improperly fetter the Respondent’s would constitutional and statutory discretion in the discharge of its mandate. 131. Consequently, the Interested Party prayed that the Ex Parte Applicants’ Notice of Motion Application dated 2nd March 2026, be dismissed with costs to the Interested Party. 132. This being a Judicial Review Application brought pursuant to Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules, the Court is alive to the settled principle that Judicial Review is concerned not with the merits of the impugned decision, but with the decision-making process. 133. The Court’s supervisory jurisdiction is therefore limited to examining whether the impugned decision was made lawfully, rationally, fairly and within the powers conferred upon the decision-maker. Accordingly, the Court is not called upon to determine whether the Respondent reached the correct decision, but whether, in arriving at that decision, it complied with the Constitution, the applicable statutory framework and the rules of natural justice. ELCLJR E002 OF 2026 Page 47 of 72

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134. Having considered the pleadings, the Affidavits evidence, the rival written submissions and the applicable law, the court finds the following issues for determination are: a. Whether this Court has jurisdiction to entertain the Ex Parte Applicants’ Notice of Motion dated 2nd March 2026. b. Whether the Respondent’s decision contained in the letter dated 13th August 2025 approving the Interested Party’s request to operate a Hot Air Balloon Business within the Maasai Mara National Reserve was unlawful, irrational or procedurally unfair. c. Whether the Ex Parte Applicants have established grounds for the grant of the Judicial Review orders sought. d. Whether the declaratory reliefs sought are available in Judicial Review proceedings. e. Who should bear the costs of the Application. 135. The issue of jurisdiction was raised by the Interested Party both in its Grounds of Opposition and in its Written Submissions. It contended that this Court lacks jurisdiction to determine the present proceedings on three grounds: firstly, that the Application was instituted outside the six-month limitation period prescribed under Section ELCLJR E002 OF 2026 Page 48 of 72

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9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules; secondly, that the Ex Parte Applicants failed to exhaust the dispute resolution mechanisms provided under Section 9 of the Fair Administrative Action Act and Sections 88 and 89 of the County Governments Act; and thirdly, that the multiplicity of proceedings instituted by the Ex Parte Applicants amounted to forum shopping and an abuse of the court process. 136. It is now settled law that jurisdiction is everything and without it, a Court has no power to make one more step. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, the Court of Appeal held that jurisdiction is fundamental, and that a court must down its tools the moment it holds the opinion that it lacks jurisdiction. Therefore, it is necessary for this Court to determine the jurisdictional objections before considering the merits of the Application. 137. The Interested Party submitted that the impugned decision sought to be quashed is contained in the Respondent’s letter dated 13th August 2025. It was its contention that the Ex Parte Applicants were required to seek leave to commence Judicial Review proceedings within six months thereof, and that having failed to do so, this Court lacks jurisdiction to entertain the present Application. ELCLJR E002 OF 2026 Page 49 of 72

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138. On their part, the Ex Parte Applicants maintained that although the impugned decision bears the date 13th August 2025, the same was never disclosed or communicated to them by the Respondent. According to them, they only became aware of its existence on 22nd December 2025, when they Replying were served Affidavit with in the 2nd National Respondent’s Civil Aviation Administrative Review Tribunal Appeal No. E001 of 2025. Further, that they moved the Court expeditiously by filing the Chamber Summons seeking leave on 11th February 2026, before subsequently filing the substantive Notice of Motion Application upon leave being granted. 139. The Ex Parte Applicants further contended that in computing time, the period between 21st December and 13th January ought to be excluded pursuant to Order 50 Rules 1 and 4 of the Civil Procedure Rules. They therefore maintained that the six-month period had not lapsed when leave was sought and obtained. 140. The Court has considered Section 9(3) of the Law Reform Act, which provides that leave shall not be granted to apply for an Order of Certiorari, unless the application for leave is made not later than six months after the date of the judgment, Order, decree, conviction proceedings sought to be quashed. ELCLJR E002 OF 2026 or other Further, Order 53 Page 50 of 72

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Rule 2 of the Civil Procedure Rules similarly prescribes the six-month limitation period. 141. The record shows that the Chamber Summons seeking leave to commence Judicial Review proceedings was considered by this Court, which, upon being satisfied that the statutory threshold had been met, granted leave on 2nd March 2026. The Interested Party did not seek a review of that order, nor did it lodge an appeal against the grant of leave. 142. It is the court considered view, that once leave was granted by a Court of competent jurisdiction, and the Order has neither been set aside nor varied, it remains a valid and binding order of the Court. The Interested Party cannot, at the hearing of the substantive invite this Court to sit on Judicial Review Motion, an appeal against its own interlocutory decision granting leave. If the Interested Party was aggrieved by the grant of leave, the law provided appropriate avenues for challenging that decision. 143. Consequently, this court find and holds that there is no merit in the Interested Party’s contention that the present proceedings are incompetent for having been instituted outside the prescribed statutory period. 144. The Interested Party further argued that the Ex Parte Applicants ought first to have pursued the grievance ELCLJR E002 OF 2026 Page 51 of 72

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mechanisms established under Sections 88 and 89 of the County Governments Act before invoking this Court’s Judicial Review jurisdiction. 145. Reliance was sought on the doctrine of exhaustion as embodied under Section 9 of the Fair Administrative Action Act, and the decisions in Speaker of the National Assembly v Karume [1992] KLR 21, William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) (2020) eKLR, and Oloo v Governor Homabay County & 3 Others (Petition E044 of 2022) [2023] KEELRC 1561 (KLR). 146. There is no dispute that the doctrine of exhaustion forms part of our law, and that where Parliament has established a specialized statutory mechanism for resolving disputes, parties should ordinarily pursue that mechanism before approaching the Court. The rationale behind the doctrine is to allow specialized bodies to determine disputes falling within their statutory mandate before judicial intervention of Republic v Authority Ex-Parte (Miscellaneous National is Environment Sound Civil sought. See case Management Equipment Application the Limited 7 of 2009) [2010] KEHC 3736 (KLR) . ELCLJR E002 OF 2026 Page 52 of 72

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147. However, the present proceedings challenge the legality of an administrative decision on grounds of illegality, procedural impropriety, irrationality and breach of the Constitution, the Fair Administrative Action Act and the Wildlife Conservation and Management Act. The principal remedies sought are the public law remedies of certiorari and prohibition under Sections 8 and 9 of the Law Reform Act. 148. Although the County Governments Act provides for public petitions Interested Party and grievance has not mechanisms, demonstrated that the those mechanisms are capable of granting the Judicial Review remedies sought herein or of quashing an administrative decision of the nature impugned before this Court. In the circumstances, this court is not persuaded that the available internal mechanisms constituted an effective alternative remedy capable of ousting this Court’s supervisory jurisdiction. 149. The Interested Party lastly submitted that the Ex Parte Applicants have persistently instituted multiple proceedings before various courts and tribunals challenging its approvals and licenses, and that the present proceedings are merely another attempt at forum shopping. ELCLJR E002 OF 2026 Page 53 of 72

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150. There is no doubt from the record that previous litigation has existed between the parties touching on the Interested Party’s operations within the Maasai Mara National Reserve. However, the mere existence of previous or parallel proceedings does not, without more, deprive this Court of jurisdiction. 151. If indeed the matters now before the Court had been conclusively determined in previous proceedings, the proper plea would have been one of res judicata under Section 7 of the Civil Procedure Act, or where appropriate, sub judice under Section 6 thereof. No such plea was formally raised or sufficiently demonstrated before this Court. Instead, the Interested Party relied generally on the existence of previous litigation without demonstrating that the legality of the Respondent’s decision contained in the letter dated 13th August 2025, had been finally determined by a court of competent jurisdiction. 152. Therefore, this Court finds and holds that while the previous litigation provides useful background to the dispute between the parties, it does not deprive this Court of jurisdiction to determine the legality of the impugned administrative decision. 153. Having considered all the jurisdictional objections raised by the Interested Party, the court finds that none of them is ELCLJR E002 OF 2026 Page 54 of 72

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sufficient to oust this Court’s jurisdiction. Consequently, the court proceeds to determine the merits of the Ex Parte Applicants’ Judicial Review Notice of Motion dated 2nd March 2026. 154. Having found that this Court is properly seized of jurisdiction, the court will now consider whether the impugned decision is amenable to Judicial Review and whether the Ex Parte Applicants have established the grounds for the grant of the reliefs sought. 155. It is trite that Judicial Review is concerned with the decision-making process and not the merits of the decision itself. The traditional grounds upon which Judicial Review remedies issue are illegality, irrationality and procedural impropriety as enunciated by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, commonly referred to as the GCHQ Case. These principles have been consistently applied by our superior courts, and have since been reinforced by Article 47 of the Constitution and the Fair Administrative Action Act. 156. The Ex Parte Applicants contended and submitted that the Respondent acted illegally by approving the Interested Party's request to operate a Hot Air Balloon Business within the Maasai Mara National Reserve despite the ELCLJR E002 OF 2026 Page 55 of 72

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express provisions of the Maasai Mara National Reserve Management Plan 2023 – 2032, prohibiting the grant of new ballooning concessions or the expansion of existing concessions during the lifespan of the Plan. Further, they contended that the Respondent acted contrary to its own previous position, failed to accord them a hearing and thereby violated their legitimate expectation and the rules of natural justice. 157. Conversely, the Respondent and the Interested Party maintained that the approval was lawfully granted after the Interested Party had complied with all the requisite statutory and regulatory requirements. Further, they contended that the approval did not amount to the grant of a new concession, but merely facilitated the Interested Party’s continued operations pursuant to approvals previously granted in 2018. 158. The central issue emerging from the parties’ pleadings is whether the Respondent’s letter dated 13th August 2025, constituted the grant of a fresh ballooning concession or merely affirmed an existing approval. 159. The Ex Parte Applicants argued that the Respondent’s own annexure marked “JMT-1” demonstrates that the Interested Party was seeking a fresh approval. They argued and submitted that the letter requested approval to ELCLJR E002 OF 2026 Page 56 of 72

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commence operations, introduced the proposed business as a new venture and nowhere referred to the renewal or continuation of an earlier approval. 160. Further, the Exparte Applicants contended that the Interested Party’s assertion that it had been granted approval on 19th February 2018, is factually impossible since the Interested Party was only incorporated on 9th November 2021, under the name Ishara Air Balloon Safaris Limited. According to the Ex Parte Applicants, a Company that was not in existence in 2018 ,could neither have applied for nor received the alleged approval. 161. On the other hand, the Interested Party maintained that although it subsequently underwent several changes of name, it remained the same corporate entity throughout, and that the approval granted in August 2025 merely enabled it to operationalize an approval that had already been issued by the Respondent in 2018. 162. The Court has carefully examined the Respondent’s letter dated 13th August 2025, the application dated 16th May 2025 and the material placed before this Court by the parties, and renders itself as follows; 163. The Respondent’s letter expressly states that it is approving the Interested Party’s request to operate a Hot Air Balloon Business within the Maasai Mara National ELCLJR E002 OF 2026 Page 57 of 72

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Reserve, subject to specified terms and conditions. Equally, the Interested Party’s request dated 16th May 2025, sought the Respondent’s approval to commence those operations. 164. Significantly, neither the application nor the approval letter expressly describes continuation or the approval confirmation as of a renewal, an existing concession. Neither document refers to the renewal of an approval granted on 19th February 2018. 165. That notwithstanding, this Court is mindful that Judicial Review is not concerned with making definitive findings of fact where the evidence is contested. Whether the Interested Party lawfully acquired rights flowing from the alleged approval of 19th February 2018, or whether the various changes of name affected its legal identity and whether the approval of 13th August 2025 constituted a fresh concession are matters involving contested factual issues that may require oral evidence and cross-examination. Such issues ordinarily fall outside the province of Judicial Review proceedings. 166. The Court’s concern is therefore not whether the Respondent arrived at the correct conclusion, but whether, in arriving at that conclusion, it complied with the law, observed procedural fairness and acted within the powers conferred upon it. ELCLJR E002 OF 2026 Page 58 of 72

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167. The Ex Parte Applicants have heavily relied on Chapter 4.6 of the Maasai Mara National Reserve Management Plan 2023-2032, which they contended expressly prohibits the issuance of new ballooning concessions or the expansion of existing concessions during the lifespan of the Management Plan. 168. It is noteworthy that the Respondent itself admitted, both in its Replying Affidavit and submissions, that the Management Plan contains provisions prohibiting the grant of new concessions or the expansion of existing concessions during its currency. 169. The dispute therefore does not concern the existence or validity of the Management Plan. Rather, it concerns whether the impugned approval fell within the category of approvals prohibited by the Management Plan. 170. The Respondent’s position is that the approval remained subject to strict compliance with the Management Plan, and all other applicable legal requirements. However, beyond making that assertion, neither the approval letter nor the Respondent’s affidavit explains how the approval was reconciled with the acknowledged prohibition against new concessions, if indeed commencing operations the Interested pursuant to Party the was impugned approval. ELCLJR E002 OF 2026 Page 59 of 72

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171. It is worthy noting that Administrative decisions affecting public resources and environmental governance must demonstrate a rational connection between the applicable legal framework and the decision ultimately reached. Where a public authority departs from an established policy or statutory management framework, it bears the obligation of explaining the basis upon which such departure is justified. 172. In the present case, the Respondent has not placed before this Court any material demonstrating that it undertook such an analysis before issuing the impugned approval. That omission raises legitimate concerns regarding the legality and rationality of the decision-making process. 173. The Ex Parte Applicants further contended that the Respondent’s decision was arrived at in breach of Article 47 of the Constitution and the provisions of the Fair Administrative Action Act. The Exparte Applicants argued that they were not notified of the Interested Party’s application, were not afforded an opportunity to be heard, and were never invited to make representations before the impugned approval was granted. 174. Article 47(1) of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally ELCLJR E002 OF 2026 Page 60 of 72

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fair. To give effect to that constitutional guarantee, Parliament enacted the Fair Administrative Action Act, whose objective is to ensure that public authorities exercise their statutory powers fairly, transparently and in accordance with the rules of natural justice. 175. Further, Section 4(3) of the Fair Administrative Action Act requires that where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give that person prior and adequate notice of the nature and reasons for the proposed action, an opportunity to be heard, and to make representations, notice of the right to review or appeal where applicable, and reasons for the decision. 176. The Respondent herein did not dispute that the Ex Parte Applicants were existing operators of hot air balloon businesses ,within the Maasai Mara National Reserve. Equally, it is not disputed that the Respondent had previously engaged the existing operators through consultative meetings culminating in the adoption of measures intended to reduce Reserve, environmental and that the degradation within the Management Plan was subsequently developed following stakeholder engagement. 177. In those circumstances, any administrative decision capable of altering the existing regulatory or operational ELCLJR E002 OF 2026 Page 61 of 72

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framework within the Reserve would inevitably affect the interests of the existing concessionaires. Therefore, it was necessary for the Respondent to demonstrate that it complied with the procedural safeguards prescribed under Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act, before making the impugned decision. 178. Apart from asserting that the Interested Party had complied with all the applicable legal requirements, the Respondent has not placed before this Court any evidence demonstrating that the Ex Parte Applicants were notified of the Interested Party's request, invited to participate in the decision-making process or afforded an opportunity to make representations before the approval was granted. 179. While the Respondent submitted that the Interested Party had previously undergone public participation before the Kenya Civil Aviation Authority in relation to its Air Service Licence, that process cannot be equated with the Respondent’s own statutory obligation to comply with the constitutional requirements of fair administrative action before issuing its approval under the applicable management regime governing the Maasai Mara National Reserve. ELCLJR E002 OF 2026 Page 62 of 72

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180. Therefore, from the above analysis this court holds finds and that the Respondent has not demonstrated compliance with the procedural requirements imposed by Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act, in arriving at the impugned decision. 181. The Ex Parte Applicants also invoked the doctrine of legitimate expectation. They argued and submitted that through the consultative meetings held in October 2022, the Respondent’s consistent opposition to the Interested Party’s earlier licensing process, and more importantly, the publication of the Maasai Management Plan 2023 Mara - National 2032, the Reserve Respondent represented that no new ballooning concessions, would be granted during the lifespan of the Management Plan. 182. The doctrine of legitimate expectation is now firmly established in our administrative law. It protects persons who have been led by a public authority, through an express promise or consistent past conduct, to expect that a certain procedure will be followed or that a particular benefit or state of affairs will continue, unless there exists a lawful basis for departing from that expectation. ELCLJR E002 OF 2026 Page 63 of 72

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183. In the present case, there is no dispute that the Maasai Mara National Reserve Management Plan 2023 – 2032, was approved by the Respondent, and subsequently published in the Kenya Gazette. There is equally no dispute that the Management Plan contains provisions regulating balloon operations within the Reserve, and that the Respondent itself acknowledged those provisions both in its pleadings and submissions. 184. It is the court’s considered view, that the publication of the Management Plan was capable of creating a legitimate expectation, that the Respondent would administer the Reserve in accordance with the policy and regulatory framework set out therein. Persons operating within the Reserve were entitled to expect that the Respondent would faithfully implement the Management Plan, unless and until it was lawfully amended or replaced. 185. That, however, does not mean that every decision made by the Respondent contrary to the expectations of existing operators automatically amounts to a violation of legitimate expectation. The Court must still determine whether the Respondent acted within the powers conferred upon it, and whether any departure from the established policy was justified and procedurally fair. ELCLJR E002 OF 2026 Page 64 of 72

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186. As already observed, the Respondent has not demonstrated the process through which it reconciled the impugned approval with the applicable provisions of the Management Plan or how the affected stakeholders were involved before that decision was made. To that extent, the Ex Parte Applicants’ complaint that their legitimate expectation was defeated without procedural fairness is not without foundation. 187. Having considered the totality of the evidence placed before the Court, the court is satisfied that the Respondent was exercising a statutory public function and was therefore bound to comply with the Constitution, the Fair Administrative Action Act and its own approved management framework in making the impugned decision. 188. Whereas this Court is not concerned with determining whether the Interested Party ought ultimately to operate within the Maasai Mara National Reserve, it is concerned with whether the process leading to the approval satisfied the standards of legality, procedural fairness and rationality demanded by public law. 189. In the circumstances of this case, holds the court finds and that the Respondent failed to demonstrate that the impugned decision was preceded by a procedurally fair ELCLJR E002 OF 2026 Page 65 of 72

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process, that it adequately addressed the apparent inconsistency between the impugned approval and the applicable Management Plan, or that it considered the legitimate expectations created by its own policy framework before granting the approval. 190. Therefore, this court finds and holds that the impugned decision is tainted by procedural impropriety and falls short of the constitutional standards governing fair administrative action. To that extent, the Ex Parte Applicants established have sufficient grounds for the intervention of this Court by way of Judicial Review. 191. Having found that the Respondent’s decision-making process was procedurally wanting, the court now turns to consider whether the Ex Parte Applicants have established a basis for the grant of the Judicial Review remedies sought. 192. The principal relief sought by the Ex Parte Applicants is an Order of Certiorari quashing the Respondent’s decision contained in the letter dated 13th August 2025, approving the Interested Party’s request to operate a Hot Air Balloon Business within the Maasai Mara National Reserve. 193. The remedy of Certiorari is ordinarily issued to quash a decision that ELCLJR E002 OF 2026 has already been made where it is Page 66 of 72

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demonstrated that the decision-maker acted without or in excess of jurisdiction, committed an error of law, breached the rules of natural justice, took into account irrelevant considerations, failed to take into account relevant considerations or otherwise acted illegally, irrationally or with procedural impropriety. 194. As already observed, the Ex Parte Applicants have demonstrated that the Respondent failed to establish that the impugned approval was preceded by a procedurally fair process as contemplated under Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act. 195. Equally, the Respondent failed to satisfactorily explain how the impugned approval was reconciled with the applicable provisions of the Maasai Mara National Reserve Management Plan 2023 - 2032, which it acknowledged regulated balloon operations within the Reserve. 196. This Court is satisfied that the impugned decision was reached through a process that did not meet the constitutional and statutory threshold governing administrative action. Accordingly, the Ex Parte Applicants have established sufficient grounds for the issuance of an ELCLJR E002 OF 2026 Page 67 of 72

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Order of Certiorari to quash the Respondent’s decision contained in the letter dated 13th August 2025. 197. The Ex Parte Applicants also sought for an Order of Prohibition restraining the Respondent from granting new approvals allowing the operation of Hot Air Balloon Businesses within the Maasai Mara National Reserve during the lifespan of the Maasai Mara National Reserve Management Plan 2023 - 2032. 198. Unlike Certiorari, which looks backwards and quashes a decision already made, Prohibition is a prospective remedy issued to restrain a public body from acting unlawfully or in excess of its jurisdiction in the future. 199. The Respondent herein submitted that granting the Order sought would effectively prevent it from exercising its constitutional and statutory mandate as the manager of the Maasai Mara National Reserve. The Interested Party similarly argued that such an Order would improperly fetter the Respondent’s discretion in the discharge of its statutory functions. 200. The Court agrees that it should not issue orders that effectively disable a public authority from discharging its statutory mandate. The Respondent remains the body legally mandated to regulate activities within the Maasai Mara ELCLJR E002 OF 2026 Page 68 of 72

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National Reserve, including considering applications relating to tourism operations. 201. However, that statutory mandate must be exercised strictly within the confines of the Constitution, the applicable statutes and the approved Management Plan. Judicial Review does not prevent a public authority from exercising its powers; rather, it ensures that those powers are exercised lawfully. 202. In the circumstances of this case, the court is satisfied that an Order of Prohibition is appropriate to restrain the Respondent from issuing approvals that are inconsistent with the Maasai Mara National Reserve Management Plan 2023 - 2032 or otherwise in violation of the Constitution and the Fair Administrative Action Act. However, such an order does not usurp the Respondent’s statutory mandate, but merely requires it to exercise that mandate lawfully. 203. The Ex Parte Applicants have further sought declarations that they had a legitimate expectation that no new approvals would be issued during the lifespan of the Management Plan, and that the impugned approval was actuated by ulterior motive and violated the Constitution and the Fair Administrative Action Act. ELCLJR E002 OF 2026 Page 69 of 72

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204. The Respondent opposed the grant of the declaratory reliefs on the ground that declarations do not constitute remedies available in Judicial Review proceedings under Sections 8 and 9 of the Law Reform Act. 205. Equally , this court concurs with the Respondent’s submission. It is evident that the present proceedings were commenced as Judicial Review proceedings under the Law Reform Act and Order 53 of the Civil Procedure Rules. The remedies traditionally available under that jurisdiction are Certiorari, Prohibition and Mandamus. Although Article 23 of the Constitution empowers courts exercising constitutional jurisdiction to grant declaratory reliefs, the present proceedings were not instituted as a constitutional petition, but Judicial Review proceedings, wherein remedies are well established. 206. Consequently, this Court finds and holds that the prayers seeking declaratory reliefs are not available in the present Judicial Review proceedings, and are therefore declined, and the same cannot be granted. 207. On the issue of costs, Section 27 of the Civil Procedure Act provides that costs shall follow the event, unless the Court, for good reason, orders otherwise. Further, costs are ordinarily awarded to the successful litigant, unless for a ELCLJR E002 OF 2026 Page 70 of 72

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good reason, the court can depart from that ordinarily position, or general principle. 208. The Ex Parte Applicants have substantially succeeded in their challenge to the Respondent’s decision. Consequently, this court finds no reason to depart from the general principle that costs follow the event. 209. Consequently, after careful analysis of the available evidence and the rival written submissions, this court finds and holds that the Exparte Applicants have proved their case on the required standard of balance of probabilities. For the above reasons, the court enters judgment in favour of the Ex Parte Applicants’ by holding that the its Judicial Review Notice of Motion Application dated 2nd March 2026, is merited and thus it succeeds in the following terms;A. An Order of Certiorari, is hereby issued removing into this Court and quashing the Respondent’s decision contained in the letter dated 13th August 2025, approving the request by the Interested Party, to operate a Hot Air Balloon Business, within the Maasai Mara National Reserve. B. An Order of Prohibition, is hereby issued restraining the Respondent from granting approvals for the operation of Hot Air Balloon Businesses within the Maasai Mara National Reserve, in a manner inconsistent with the provisions of the Maasai Mara National Reserve Management Plan 2023 - 2032, the Constitution and the Fair Administrative Action Act. ELCLJR E002 OF 2026 Page 71 of 72

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C. The prayers declined. seeking declaratory reliefs are D.The Ex Parte Applicants shall have the costs of the instant Judicial Review Application dated 2nd March 2026, to be borne jointly and severally by the Respondent and the Interested Party. It is so ordered. Dated, Signed and Delivered Virtually at Narok this 9 th Day of July 2026. L. GACHERU JUDGE. Delivered online in the presence of: Elijah Meyoki – Court Assistant Mr Omulama for the Ex Parte Applicants. Mr Kaloki Mumo holding brief for Mr Maina Ngaruiya for the Respondent. No Appearance for the Interested Party. L. GACHERU JUDGE. ELCLJR E002 OF 2026 Page 72 of 72

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