Lake-Land Co-operative Society (LADCOS) v The Siaya County Chief Officer-Lands Physical Planning & Urban Development & 4 others

JUDGEMENT 1 The Applicant commenced this suit by way of the Originating Motion dated against the Respondents claiming that he was allotted by the Defunct Bondo Town Council a Plot measuring 0.420ha on PDP No. Siaya/340/96/2 of 21/6/96 to develop and do its business of collecting milk from members, selling to customers and ensuring value addition. 2 The Applicant avers that it has openly possessed, developed and operated its business on the suit property for Twenty-Nine (29) years with the full knowledge and consent of the relevant public authorities. 3 That the County Government and National Land Commission have irrationally ignored the Applicant’s repeated requests for a Certificate of Lease. 4 The Applicant contends that over the approximately three decades during which it has held the subject Letter of Allotment, it has expended substantial resources belonging to its membership in developing the suit parcel and carrying out its enterprise, while consistently paying land rates to the local authority and subsequently the County Government of Siaya. 5 The Applicant asserts that there has been illegal scramble and partitioning of their allocated parcel which has escalated into fictitious titles whose fraudulent owners are 2

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battling in court and thus plunging the honourable court into disrepute by issuing orders that cannot be implemented on the ground. Further those uncontrolled developments by squatters and land cartels in Bondo town have caught up with the parcel and encroachers have invaded and built within it to the disadvantage of the Applicants membership. 6 The Applicant attributes the prevailing state of chaos, squatting and encroachment to the regulatory omissions of the County Government of Siaya and the National Land Commission. The Applicant avers that despite both entities possessing clear statutory mandates to process and issue Certificates of Lease, their failure to do so notwithstanding that both institutions have been operational under the constitutional framework since 2010 constitutes an inordinate, unreasonable and irrational delay. 7 While acknowledging the legal principle that a Letter of Allotment does not per se confer indefeasible title or absolute ownership, the Applicant contends that having occupied and developed the property for nearly thirty years with the express authority of the local authority and having consistently discharged its rate obligations, it entertained a legitimate expectation that the County Government and the National Land Commission would finalize the statutory process and issue a formal title to safeguard its proprietary investments. 3

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8 The Applicant claims that the persistent failure to issue a Certificate of Lease violates Article 47 of the Constitution and Section 7 of the Fair Administrative Action Act. Such omission is characterized as illegal, unreasonable, irrational and tainted with procedural impropriety thereby warranting the intervention of this Court by way of an Order of Mandamus. 9 It is the Applicant’s further grievance that the 1 st and 2nd Respondents have willfully neglected, ignored or refused to implement the recommendations contained in the County Director of Survey’s Fixed Cadastral Survey Report dated 9th March, 2020 (Ref: CGS/LND/LSM/SRV/VOL01(09)). The Applicant highlights that this report explicitly forewarned of the risks of third parties fabricating titles over the suit land and improperly procuring judicial orders to validate illegal acts. 10 The Applicant maintains that it has suffered severe prejudice as a result of the Respondents’ procedurally unfair omission in failing to respond to its institutional correspondence seeking titling and the abatement of encroachment thus necessitating the prayers for Orders of Mandamus. 11 The Applicant seeks the following reliefs; 1) An Order of Mandamus compelling the 1 st and 2nd Respondents to implement the Recommendation captured in the 4th Respondent’s (County Director of Survey) Survey Report on the Fixed Cadastral Survey of 4

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the External Boundary of Bondo Market Center dated 9 th March 2020 (Ref: CGS/LND/LSM/SR/ VOL01(09). 2) An Order of Mandamus compelling the 3 rd Respondent (National Land Commission), in liaison with the 1 st and 2nd Respondents, to issue the Applicant with a Certificate of Lease pursuant to its Letter of Allotment for Plot Referenced ‘B’ on PDP No. Siaya/340/96/2 issued by the defunct Bondo Town Council on 1 st August 1997 and confirmed vide letter referenced CS/6764/GEN./VOLIII dated 22nd April 2014. 3) Costs of the Application. 12 The Motion is grounded on the Statutory Statement and the Supporting Affidavit of George Onyango Obiero the Secretary of the Applicant Society, sworn on 16 th June 2025. 13 The Applicant relied on the following documents in support of this Application as listed under paragraph 14 of the Supporting affidavit. a) Letter of Allotment of the suit Plot B to LADCOS: MARKED AS GOO1 b) LADCOS Certificate of registration-GOO2 c) Bondo Town Council letter dated 1/8/1996 to the Applicants accepting its application for allotment of parcel in Bondo town. -GOO3 d) Minutes of the defunct Bondo Town Council Allocating the parcel to the Applicant as per the meeting of 14/06/1996: -GOO4 5

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e) District Commissioner Siaya’s letter dated 19/2/1997GOO5; f) Bondo Town Council Letter dated 28/12/1998-GOO6 g) Letter dated 9/08/2005 from Bondo Town Council affirming allocating the Suit Plot to the LADCOS: GOO7 h) Letter dated 7/6/2006 from the Bondo District Commissioner to the Commissioner of Lands, Nairobi affirming the Allocation of the Allotment to the Applicants. - GOO8. i) Applicant’s letter of Acceptance of Allotment dated 15/06/2011 pursuant to creation of the counties that rendered councils defunct in the wake of the Constitution 2010.- GOO9 j) Applicant’s Receipt of payment of land rent dated 16/03/2012.- GOO10 k) 1st Applicant’s Commissioner letter and to the Sub County copied to sub county administrator dated 20/11/2014 raising complaints on the encroachment and blocking of access road by third parties. - GOO11 l) Response letter dated 6/2/2015 from the Bondo Sub County Administrator on encroachment and blocking of access road. - GOO12 m) The letter dated 13/03/2020 from the County Chief Officer, Lands, Physical Planning, Housing and Urban Development affirming the confusion caused 6

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by Parties procuring Court Orders through material misstatements of facts. - GOO13 n) Cover letter forwarding the Survey Report dated 9/03/2020 by the County Director of Survey dated 12/03/2020. The letter is addressed to the County Chief Officer, Lands, Physical Planning, Housing and Urban Development informing him of the Survey exercise. - GOO14 o) The Survey Report dated 9/03/2020 as detailed by the County Director of Surveys: - GOO15 p) Decree obtained by the Interested Party pursuant to misdating facts at the ELC Court in Kisumu ELCA NO. 24 OF 2018. The Decree is what inspired the factfinding Survey by the Director of Surveys above. GOO16 q) Eviction Order against the Applicant even though it was not a Party to the ELCA NO 24 OF 2018 where the Decree was obtained. - GOO17 r) Applicant’s letter dated 20/09/2021 to the National Lands Commission County Coordinator, Siaya complaining of the encroachment of the suit land and the Decree that was unlawfully obtained. - GOO17 s) Letter by the Applicant to the Governor, Siaya County dated 03/11/2020 complaining of the encroachment on the suit parcel. - GOO18 t) Request letter by the Applicants to the County Chief Officer, Lands, Physical Planning, Housing and Urban Development petitioning him to implement the 7

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Survey Report by the Director of Surveys Siaya County done on 9/3/2020.- GOO19 u) Letter of Authority to sue and swear Affidavits. GOO20 RESPONDENTS CASE 14 In opposition to the Motion, the 1 st, 2nd and 4th Respondents relied on the Replying Affidavit sworn by Joseph Omondi, the Chief Officer for the Department of Lands, Housing, Physical Planning and Urban Development in the County Government of Siaya, sworn on 25th November 2025. 15 The 1st, 2nd and 4th Respondents contend that the instant suit is premature, incompetent and an abuse of the court process. The deponent avers that the Respondents do not hold the legal mandate or capacity to issue titles over public land. Furthermore, even if the Respondents were to play a role in facilitating land registration, the Applicant has not submitted a formal request in the manner prescribed under the law to trigger such statutory approvals. 16 It is further deponed that none of the documents relied upon by the Applicant are capable of conferring title or creating proprietary rights over the suit property. The Respondents emphasize that land approval processes involve multi-sectoral verification, physical planning approvals and compliance with modern legal frameworks 8

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following the transition from the defunct Town Councils to County Governments. Consequently, the Respondents deny acting irrationally or unreasonably, reiterating that they simply do not possess the power in law to issue titles. 17 Regarding the Survey Report, the Respondents depone that its implementation is not a mere administrative decree, but a complex preparatory step towards land regularization, boundary dispute resolution and the potential revocation of unlawfully acquired titles a process requiring a legally sound inter-agency approach. 18 Ultimately, the 1st, 2nd and 4th Respondents aver that the Applicant is attempting to use Judicial Review proceedings to circumvent mandatory legal and administrative steps to obtain a decision on ownership in its favor. They assert that claims of proprietary protection and disputes involving third party claims or fictitious titles must be pursued through an ordinary suit determined on merit rather than a petition for Mandamus. On these grounds, they pray that the Judicial Review proceedings be dismissed with costs to the 1st, 2nd and 4th Respondents. APPLICANTS FURTHER RESPONSE 19 By a Further Affidavit sworn on 1st April 2026, the Applicant vehemently refutes the Respondents’ assertions regarding procedural non-compliance. The Applicant contends that its rights to Fair Administrative Action under Article 47 of the Constitution were directly infringed by the Respondents’ administrative lethargy, omission and 9

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deliberate failure to act upon its requests for the registration of a lease over the suit property. 20 The Applicant referred to the letter to the National Land Commission (3rd Respondent) dated 3rd August 2023 alleging it sought the initiation and registration of a lease over Plot Referenced 'B' on PDP No. SIAYA 340/96/2. The Applicant argues that the Respondents offered mere "banal denials" without demonstrating that they ever gave attention or rendered formal responses to these written engagements. 21 The 3rd Respondent filed a Memorandum of Appearance dated 15/07/2025 and adopted the Replying affidavit filed by the 1st Respondent. The Applicant further abandoned the joinder of the Interested Party effectively withdrawing the suit against the Interested Party. The 5 th Respondent did not respond to the suit. SUBMISSIONS 22 The court issued directions that the Originating Motion would be disposed by way of written submissions. Only the Applicant complied. However, the court will proceed to determine the application in accordance with the law and established principles of justice. APPLICANT’S SUBMISSIONS 23 The Applicant filed written submissions dated 1 st April 2026 through its counsel M/s Lawi Ogutu & Co. Advocates, in support of the Originating Motion. 10

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24 Counsel submitted that the primary question for the Court's determination concerns the legal extent of an allottee’s rights formalization when seeking the registration and of an interest in public land. It was emphasized that the Applicant was issued with a Letter of Allotment for Plot Referenced 'B' on PDP No. SIAYA 340/96/2 by the defunct Bondo Town Council on 1 st August 1997, which allocation was subsequently confirmed and ratified by the County Government of Siaya vide its letter dated 22nd April 2014 (Ref: CS/6764/GEN./VOL.III/). 25 Counsel for the Applicant argued that despite formal requests directed to the County Government of Siaya and the National Land Commission to regularize the issuance of a Certificate of Lease, the Respondents have ignored these overtures in blatant disregard of the principles of fair administrative action. The Applicant contended that the protracted inaction by the public bodies is unlawful, unreasonable, irrational and constitutes a procedural impropriety in direct contravention of Article 47 of the Constitution of Kenya, 2010. 26 The Applicant further submitted that the failure of the County Government to secure and manage the suit land through the timely issuance of title documentation has created administrative chaos, fostering an environment vulnerable to unauthorized squatting, land grabbing and protracted litigation that threatens to bring court decrees into disrepute. It was noted that an official survey conducted by the County Surveyor at the instance of the 11

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Applicant was similarly disregarded by the Respondents, reflecting an abdication of statutory duties mandated under Article 62 of the Constitution. 27 Invoking the doctrine of legitimate expectation, Counsel urged that the Applicant has maintained an active presence and investment on the suit parcel under an allotment subsisting for nearly three decades and for over twelve years under the current county governance framework. It was asserted that the refusal to process the Certificate of Lease arbitrarily frustrates the Applicant's fundamental right to property. 28 Relying on Section 7(2)(a) of the Fair Administrative Action Act, 2015, alongside the judicial authorities of Mombasa v Republic & Another [2002] eKLR and Okiya Omtatah Okoiti & 3 Others v Anne Waiguru & 5 Others [2021] KLR, it was submitted that Judicial Review is fundamentally concerned with the legality of administrative decision-making processes and that any ultra vires omission or procedural failure is inherently illegal. Accordingly, urged the court to grant the judicial review remedies as sought in the Originating Motion. ANALYSIS AND DETERMINATION 29 I have carefully considered the application, affidavit in support thereto and the submissions on record. The following issues commend determination: 12

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1) Whether judicial Review is the appropriate legal procedure to determine the dispute? 2) Whether the Applicant had a legitimate expectation to be issued with the Certificate of Lease. 3) Whether the Applicant is entitled to the Prerogative Reliefs Sought 4) Who bears the costs of the suit? Whether judicial Review is the appropriate legal procedure to determine the dispute? 30 The 1st, 2nd and 4th Respondents contended that Judicial Review is unavailable because a Letter of Allotment is a conditional offer rather than a title deed and that questions of property ownership must be determined through an ordinary civil suit. 31 To resolve the above contestation the court will consider the framework and character of Judicial review as provided in law and precedent. 32 The Black’s Law Dictionary, 9th Edition defines “Judicial Review” as: “A court’s power to review the actions of other branches or levels of government; esp., the court’s power actions to as invalidate being legislative and executive unconstitutional. 2. The constitutional doctrine providing for this power. 3. A court’s review of a lower courts or an administrative body’s factual or legal findings”. 13

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33 Mark Ryan, in his book, ‘Unlocking Constitutional and Administrative Law’, (3rd Routledge/Taylor & Francis Group, 2014) on page 506 defines Judicial Review as: “The constitutionally justified as a legal control on the misuse of public law powers, including both statutory and common law prerogative powers.” 34 In Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [2022] eKLR the court stated thus; ‘25. Now turning to the analysis of the issue under this sub- heading. First and foremost, it is important to appreciate the meaning of Judicial Review. The concept is based on the fact that checked administrate through excesses Judicial must be intervention. Administrative law relates to decision of offices or organs of Central Government or Public Authorities which may affect the rights or liberties of the citizens and which are enforceable in or organized by the courts of law. Therefore, judicial review is an integral component of administration law.’ 35 The grounds upon which one could base an application for judicial review are under the heads of illegality, irrationality, procedural impropriety and proportionality. 14

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36 Judicial review jurisdiction, was discussed in the Ugandan case of “Pastoli – Versus - Kabale District Local Government Council & Others, (2008) 2 EA 300”, that “In order to succeed in an application for Judicial Review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety. Illegality is when the decision-making authority commits an error of law in the process of taking the decision or making the act, the subject of the complaint. Acting without Jurisdiction or ultra vires or contrary to the provisions of a law or its principles are instances of illegality.... Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards. Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe 15

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procedural rules expressly laid down in a statute or legislative Instrument by which exercises jurisdiction to make Mehdawi v Secretary of State such a authority decision. for the (Al- Home Department [1990] AC 876).” 37 I will also discuss the remedies available to an applicant seeking judicial review. The remedies available are Certiorari as provided under Order 53 Rule 7 of Civil Procedure Rules, Mandamus and Prohibition. In the instant case, the Applicant has sought prerogative Orders of Mandamus and it is the one I will focus on. 38 An order for Mandamus is normally to compel performance of a duty. This was aptly stated in Judicial Review Misc Application No.429 of 2012 Mwangangi & Company Advocates Vs the Governor Nairobi County where Odunga J (Now Judge of Appeal) citing his dictum in High Court Judicial Review Miscellaneous Application No. 44 of 2012 between the “Republic – Versus - The Attorney General & Another ex parte James Alfred Koroso, stated thus; ‘This Court expressed itself as hereunder: “…in the present case the ex parte applicant has no other option of realising the fruits of his judgement since he is barred from executing against the Government……… 16

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The institution of judicial review proceedings in the nature of mandamus cannot be equated with execution proceedings. In seeking an order for mandamus the applicant is seeking, not relief against the Government, but to compel a Government official to do what the Government, through Parliament, has directed him to do. The relief sought is not “execution or attachment or process in the nature thereof”. In mandamus cases it is recognised that when statutory duty is cast upon a Public Officer in his official capacity and the duty is owed not to the State but to the public any person having a sufficient legal interest in the performance of the duty may apply to the Courts for an order of mandamus to enforce it. In other words, mandamus is a remedy through which a public officer is compelled to do a duty imposed upon him by the law. It is in fact the State, the Republic, on whose behalf he undertakes his duties, that is compelling him, a servant, to do what he is under a duty, obliged to perform…….” 39 Arising from the above Mandamus is used to compel public officers to perform duties imposed upon them by common law or by statute and is also applicable in certain 17

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cases when a duty is imposed by an Act of Parliament for the benefit of an individual. 40 The Court of Appeal in Commission on Administrative Justice – Versus -Kenya Vision 2030 Delivery Board & 2 others [2019] eKLR” setting out the principles to guide the application of the prerogative orders of Mandamus stated as follows: “As observed by the Judge and correctly so in our view, the principle that guides the High Court when dealing with the scope and efficacy of an order of mandamus was crystalized by the Court in Kenya National Examination Council – Versus Republic Ex - Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR namely: “The order of mandamus is of most extensive remedial nature and is in the form of a command issuing from the High Court of Justice directed to any person, corporation or inferior tribunal requiring him or them to do some particular thing therein specified which appertains to his or their office and is of the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue to the end that justice may be done, in all cases where there is a specific legal right, and it may issue in cases where although there is an alternative remedy, 18

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yet the mode of redress is not convenient, beneficial and effectual.” 41 I have already noted in “Pastoli – Versus - Kabale (supra) that judicial review is an integral component of administration law. Constitution of Under Kenya, Article 2010 the 47 of the right to fair administrative action is anchored as a fundamental constitutional guarantee, providing that: i. “Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. ii. If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action. iii. Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall— a) Provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and b) Promote efficient administration." 42 Giving effect to this constitutional command, Section 2 of the Fair Administrative Action Act (FAAA), 2015 broadly defines an "administrative action" to encompass any decision, act or omission taken by a public body or 19

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officer performing a public function that affects the rights, privileges or entitlements of any person. 43 A preliminary issue has been raised and which I must address at the earliest opportunity in this judgment. The Respondent opposes the filing of these proceedings under the framework of Judicial Review. I have already outlined the concept and what it entails. 44 Among the reasons advanced by the respondent for opposing this forum is the fact that the Applicant is using judicial review to settle land ownership claims to circumvent the necessary legal and administrative steps required to resolve the ownership dispute and to compel the respondents to decide the same in his favor. This is attributed to allegations raised by the Applicant touching on squatter invasions and issuance of fraudulent titles to individuals. Most importantly is the litigation in Environment & Land Court Kisumu in ELC Appeal No. 24 of 2018 MONICA ANYONA DONGI VS RICHARD OTIENO OKUMU – the decree dated 29/01/2020 was availed together with an eviction notice dated 20/02/2020. It is also charged that the Applicant was not a party. 45 However I note that the above lays the background to what necessitated the applicants filing the present application. What is being sought lies on two fronts firstly an order compelling the implementation of the recommendations of the Report on the Fixed Cadastral Survey of the External Boundary of Bondo Market Center 20

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dated 9th March 2020. Secondly to compel the issuance of a certificate of Lease pursuant to the letter of allotment by the 3rd Respondent in liaison with the 1st and 2nd Respondent. 46 Furthermore, I do not think the existence of a court order in previous litigation and or the existence of titles vitiates an application for judicial review. I say so because before allocating any public land under the Land Act, the NLC is obligated under section 14 to issue, publish or send a notice of action to the public and interested parties. Therefore, this is where any claims by interested parties would be considered and inform whether or not to issue the lease and if yes to what extent. 47 Consequently, this Court holds that the suit meets the threshold for Judicial Review and consideration on its merits. 48 But I think the big question is whether there exists an administrative action or decision upon which the applicant can anchor its claim on. 49 I must observe that the County Council of Bondo did not issue a letter of allotment. I did not see any. In any event they did not have the jurisdiction in law to do so. From the material presented by the Applicant the defunct council only approved the allocation of the subject plot to the Applicant. Minutes of the meetings approving the same have been availed including confirmation letters of this allocation to the Commissioner of Lands in a follow up to 21

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the issuance of a formal letter of allotment by the Commissioner of lands. The letter of allotment was to be issued by the Commissioner of Lands. 50 The Applicant attached a letter of allotment issued in the year 1997. As per the said letter of allotment a grant was to be made under the provisions of, the Government Lands Act (cap 280) and the Title was to be issued under the Registration of Titles Act (Cap 281) or the Registered Land Act Cap 300. What is clear however is that beyond the letter of allotment nothing happened until June 2011 as it would appear from the letter dated 15/06/11 by the Applicant addressed to the Commissioner of Lands that the letter of allotment did not reach them until then. The offer states that the same was to be accepted within 30 days. It would therefore mean that the acceptance dated 15/06/2011 was of no consequence. The offer had essentially lapsed. 51 Further the applicant’s case is that having stayed on the suit property for a period of over 29 years and over 12 years since the coming of devolution he had the legitimate expectation that the process of granting it a lease would be finalized. Whether the Applicant had a legitimate expectation to be issued with the Certificate of Lease. 52 The doctrine of legitimate expectation was authoritatively synthesized by the Supreme Court of Kenya in the case of 22

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Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others (Petition 14, 14A, 14B & 14C of 2014 (Consolidated)) [2014] the Apex court stated thus; “In proceedings for judicial expectation applies the review, legitimate principles of fairness and reasonableness, to the situation in which a person has an expectation, or interest in a public body retaining a long-standing practice, or keeping a promise. An instance of legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. A party that seeks to rely on the doctrine of legitimate expectation, has to show that it has locus standi to make a claim on the basis of legitimate expectation”. 53 I have already noted that there is no letter of offer upon which to anchor the claim. However, does this bar the applicant to agitate for its right? A legitimate expectation arises where a public authority, through an administrative decision, representation or past practice creates a reasonable expectation that it will act in a certain way or complete a statutory procedure. 54 In Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others (Petition 14, 14A, 14B & 14C of 2014 (Consolidated)) [2014], the 23

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Court outlined the core principles governing a valid legitimate expectation: i. There must be an express, clear and unambiguous promise given by a public authority; ii. The expectation itself must be reasonable; iii. The representation must be one which it was competent and lawful for the decision-maker to make; and iv. There cannot be a legitimate expectation against clear provisions of the law or the Constitution. 55 In the present case what would give the plaintiff the requisite locus? Having started by temporary allocation of the land for commercial use and approval of conversion to 99-year lease vide letter dated 1/8/1996 pursuant to ‘MINUTE NO. WTEHS/15/96, followed by issuance of Letter of Allotment on 1st August 1997 which though lapsed, the occupation was in my view re-confirmed by various correspondences between the Applicant and the County Government of Siaya. 56 The applicant has indeed been on the suit property for over 29 years. It has developed the property with the express authority and full knowledge of the County Government of Siaya and continuously paid land rent as evidenced by the receipt for payment of Premium & Rent for 1997 dated 5/6/2025. Infact the County went ahead at the applicant’s request/complaint and prepared the report 24

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herein which forms the basis of prayer No. 1 of the Originating Motion. 57 They therefore rightfully harbored a legitimate expectation that the administrative process would be finalized through the issuance of a Certificate of Lease to protect its interest and title to the land. The public authorities generated a clear, lawful and binding legitimate expectation that ultimately the public officers would perform the ministerial task of the issuance of formal Certificate of Lease once the Applicant complied with its obligations. It was also a reasonable expectation in my view. There was no ambiguity at all that such allocation would not come to fruition. 58 It is therefore the finding of this court the Applicant had a legitimate expectation to be issued with the Certificate of Lease. 59 However having arrived at the above conclusion the big question is whether such conclusion avails the applicant the reliefs sought. I say so in view of interlia that the representation must be one which the public authority was competent and lawful for the decision-maker to make; and the meeting of certain obligations on the part of the applicant. Further the 1st 2nd 4th respondent deny they have the jurisdiction to issue titles or such leases. Whether the Ex Parte Applicant is entitled to the Prerogative Reliefs Sought 25

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60 It behooves the court to look at the legal process of converting such an administrative allocation into a registered proprietary title. It has since been established that that the County Governments are the natural predecessors and legal successors of the defunct local authorities. In this regard the court draws guidance from Wachira Nderitu Ngugi & Co. Advocates vs. Town Clerk City Council of Nairobi (2016)eKLR and Republic Vs. Town Clerk of Webuye County Council & Another HCCC 448 of 2006 where it was emphasized that Section 33 of the Sixth Schedule to the Constitution which provides for succession of institutions upon promulgation, the County is the legally established body unit contemplated under the law that takes the place of local authorities unless there is a contrary enactment. In the present case the County Government of Siaya has been sued through the 1st 2nd 4th Respondent. 61 Coming back to prayer 2 of the Originating Motion the Applicant craves that in liaison with the 1 st and 2nd Respondent the 3rd Respondent to issue the Applicant with a certificate of lease pursuant to the letter of allotment issued to them by the County Council of Bondo. I have already noted the letter of allotment lapsed, there was no letter of allotment issued by the Bondo town council. It has not been disputed that for 14 years since devolution the County has held itself out as recognizing the allocation. The subsequent actions of the 1 st 2nd 4th Respondent and its officials have recognized the 26

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applicant’s occupation as approved by the defunct Bondo Town Council. I find the conduct of the 1st 2nd and 4th Respondent to be an acknowledgement of the legitimate interest of the Applicant in the suit property on account of its long use and occupation of the said parcel. 62 The governing law applicable would be the Land Act (Cap 280) the Land Registration Act (Cap 281) and the Physical and Land Use Planning Act (Cap 286). 63 The applicants request can only be treated as an allocation made by the County Council of Bondo which the County Council of Siaya has recognized over time. The County Council cannot issue a certificate of lease which the applicant seems to be privy to and makes it the business of the 3rd Respondent the NLC. 64 Under the statutory framework governing public land in Kenya, the mandate to alienate public land and execute title instruments is strictly allocated by law. 65 Section 2 of the Land Act (Cap 280) defines "alienation of public land" as: "Alienation of land by either the National Government or the County Government as the case may be, by way of issuance of a letter of allotment by the National Land Commission to any person to hold the land either under leasehold or freehold tenure." 27

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66 The above statutory definition, read together with Article 67(2)(a) of the Constitution as well as Sections 8 and 12 of the Land Act, establishes that the management, administration, and formal disposition of public land including the processing and execution of leasehold titles is the exclusive statutory function of the National Land Commission. Consequently the 1st, 2nd and 4th Respondents (County Government officers) do not possess the statutory power to issue titles or execute leases over public land. 67 Regulation 32 of the Land (Allocation of Public Land Regulations 2017) Revised on 31/12/2022 provide for regularising of existing allocation in urban areas by defunct local authorities as follows; 32 Regularizing of existing allocation in urban areas by defunct local authorities (1) Allocation of land made under any of the repealed Acts may be regularized by the Commission at the request of the county governments pursuant to section 162(1) of the Act. (2) Without limiting the generality of the foregoing, the Commission if satisfied that an occupier of public land was lawfully allocated land by any of the defunct local authorities in accordance with the repealed Acts and remains unregistered, it shall formally allocate the land. (3) The Commission shall— 28

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(a)satisfy itself that the land does not fall within any of the categories set out in section 12(2) of the Act; (b)where the allottee is a non-citizen, ensure that the approval of the Cabinet Secretary is obtained where the land is controlled land as defined in section 12A (1) of the Act; and (c)require that the land is planned, surveyed, georeferenced and serviced. (4) Upon the Commission satisfying itself that all the conditions have been met, it shall issue letters of allotment in Form LA 5 set out in the Schedule. 68 From the foregoing clearly before any allocation can begin a request must move from either the National or County Government. In the instant case the county is the ‘person’ to take the first step towards actualization of the allocations by the NLC through the County Executive Committee member responsible for matters relating to land. 69 Essentially all that remains in my view falls squarely in the hands of the public officers to see to the actualization and issuance of certificate of lease. The back stops with the 1 st 2nd and 4th Respondent who have in my view stalled the process due to their own lethargy causing the confusion that has affected the Applicant’s land. 29

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70 In the case of Mwayela v State Law Offce & another (Judicial Review E003 of 2025) [2026] KEHC 4512 (KLR) Naikuni J persuasively stated thus; ‘It is trite law that “Mandamus” is an equitable remedy that serves to compel a public authority to perform its public legal duty and it is a remedy that controls procedural delays. The test for mandamus is set out in “Apotex Inc. – Versus - Canada Attorney General” ), and, was also discussed in “Dragan – Versus - Canada (Minister of Citizenship and Immigration)”. The eight (8) factors that must be present for the Prerogative writ of “Mandamus” to issue are: a. There must be a public legal duty to act; b. The duty must be owed to the Applicants; c. There must be a clear right to the performance of that duty, meaning that; a) The Applicants have satisfied all conditions precedent; and b) There must have been; (i) A prior demand for performance; (ii)A reasonable time to comply with the demand; (iii) An express refusal, or an implied refusal through unreasonable delay; (iv) No other adequate remedy is available to the Applicants; 30

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(v) The order sought must be of some practical value or effect; (vi) There is no equitable bar to the relief sought; (vii) On a balance of convenience, mandamus should lie. 71 Having considered the facts of the case and the documentation availed and my analysis hereinbefore all the above elements have been met as against the 1 st 2nd and 4th Respondent being officers of the County Government of Siaya. 72 However with regard to the NLC, the applicant further relied on a letter dated 20/09/2021 annexed as ‘GOO 17’ to the National Land Commission County Coordinator, Siaya. I find it necessary to echo it verbatim. It states; RE: ENCROACHMENT TO THE SOCIETY PLOT. (UNSURVEYED COMMERCIAL PLOT "B") This is to refer your office to the above-mentioned matter. The above cooperative society owned by local farmers from Bondo and Rarieda is situated-in Bondo town in Bondo Sub-County within Siaya. This society was allocated a plot measuring 0.420ha on PDE NO. Siaya/340/96/2 of 21/6/1996 to do its business of collecting milk from members and selling to consumers. This allocation was done by 31

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the then Bondo Town Council in September 1997, allotment No. 70760/127. The society plot has been over encroached by neighbours to an extent that the dairy is now left with a very small piece. The latest encroachment by one Monica Anyona Dongi even denying us access to our milk chilling machines. We the members of Lakeland Dairy Cooperative Society are requesting your able office for intervention. We thank you in advance hoping to receive positive response. Yours Faithfully, George Onyango Obiero Secretary 0713255501 73 The letter is not an application for regularization of their allotment. It conveys their concerns about encroachment leaving them with a tiny piece of land and another by one Monica (the interested party) and seeks for the intervention of the NLC. The only sin that has been committed by the NLC in my view is the failure to respond to the letter. Nevertheless, I have already pointed that it is was for the 1st 2nd 4th Respondents herein to initiate the process and trigger the 3rd Respondent (NLC) into action at the appropriate stage. 32

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74 Applying the dictum in Mwayela v State Law Offce & another (supra) an Order of Mandamus therefore lies to compel a public body to perform a mandatory statutory duty which it has failed, neglected or refused to execute. While the 1st, 2nd and 4th Respondents do not possess the statutory power to issue titles or execute leases over public land there are certain steps they must take to initiate the process considering the circumstances of this case. The Applicant has fulfilled most of its obligations. Should there be any further requirements they are supposed to fulfil under the law then the same may be initiated with the guidance of the 1 st 2nd 4th Respondents. I do not see any other option or forum available to the Applicant. 75 Moreover, this court notes that at paragraph 8 of their replying affidavit the 1st 2nd and 4th Respondent depone that implementation of the Survey Report is not a simple administrative decree but a preparatory step towards land regularization, boundary resolution and the possible revocation of unlawfully acquired titles which requires a legally sound, inter agency process. While this may be so, the County Government of Siaya sued herein through the 1st 2nd and 4th Respondents cannot hide its head citing complexity of the issue since the year 2020 when the survey was completed. It does not give an explanation including an action plan, towards the commencement of the process for resolution of the issues. It cannot continue to burry its head under the sand like the proverbial ostrich 33

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by letting the status quo of confusion to thrive. They have in my view abdicated their responsibilities. The applicant’s demand is reasonable and justified in the circumstances and an order of mandamus must issue to compel the commencing of the anticipated regularization process. 76 Additionally Applicant has successfully demonstrated that the 1st 2nd 4th Respondents and its relevant officers have failed to perform their statutory functions under Article 47 of the Constitution and Section 7 of the Fair Administrative Action Act. 77 What about the relief to compel the implementation of the recommendation of the report dated 9th March 2020. Firstly, the court takes cognizance of the fact that the report only gives recommendations. Recommendations are not final and are subject to change. I will highlight the definition from Stephen Mwangi Mwaura Vs. Republic 202 KEHC 8869 (KLR) where the court stated; 15.‘The word recommendation is defined in the Oxford English Dictionary as ‘Put forward with approval being suitable for purpose or role, advise as course of action; Make appealing or desirable.’ 16. In Blacks Law Dictionary the definition of the word ‘recommendation’ is as follows ‘A specific piece of advice about what to do especially if given officially; A suggestion that someone should choose a particular thing or person that one thinks particularly good or meritorious. 34

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17.From the above definition, it is clear that the word recommendation does not amount to instituting any type of action. It is however tantamount to an opinion or advice proposing a course of action…. The recipient of the information could act in accordance with the recommended proposal or not, at his or her discretion.’ 78 The respondents do not deny the report but have expressed that the implementation of the Survey Report is not a simple administrative decree but a preparatory step towards land regularization, boundary resolution and the possible revocation of unlawfully acquired titles which requires a legally sound, inter agency process. 79 The court also recommendations recognises which could the report be subject captures to review depending with the outcome of the further engagements with affected parties and interagency involvement above. The court has noted the existence of the court order dated 29th January 2020 arising from ELC case Number 24 of 2018 in Kisumu. Further that no orders have been availed as to its setting aside. Moreover, it is also not clear how much land the Plaintiff has been left with. 80 By the provisions of Sections 3A of the Civil Procedure Act and Section 3 of the Environment and Land Court Act, this court shall exercise its inherent powers to ensure it renders a decision that is just and necessary to ensure the ends of justice. 35

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81 In the case of Migori County Government & another v Migori County Transport Sacco (Civil Appeal 110 of 2017) [2021] KECA 7 (KLR) (23 September 2021) (Judgment), the Court of Appeal held thus: ‘The court was always possessed of residual inherent powers which allowed it to make any orders in the wider interest of justice. It was for the court to fashion out an appropriate remedy even in instances where the Constitution and the law were silent. A court could not just helplessly stare at a petitioner whose rights and fundamental freedoms were trampled upon or when it was ostensibly demonstrated that the Constitution was either contravened or so threatened. Unless a court rose to, and asserted its authority, chances were that it could fail the calling in article 3 of the Constitution. Even in instances where there were express provisions on specific reliefs, a court was not precluded from making any other orders under its inherent jurisdiction for the ends of justice to be met to the parties.’ 82In the premise, the Applicant’s Originating Motion for Judicial Review is merited and is disposed in the following terms; 1) IT IS HEREBY DECLARED that there was a lawful legitimate expectation that the administrative process would be finalized through the issuance of a Certificate of Lease. 36

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2) THAT the 1st 2nd 4th Respondents shall in liaison with the 3rd Respondent and other relevant agencies commence and complete engagements within 6 months on the recommendations and findings as captured in the 4 th Respondents Survey Report on the Fixed Cadastral Survey of the External Boundary of Bondo Market Center dated 9 th March 2020 and Refenced CGS/LND/LSM/SRV/VOL01(09) towards land regularization, boundary resolution and the possible revocation of unlawfully acquired titles. 3) THAT the 1st 2nd and 4th Respondent shall within 45 days of the completion of 2) above cause for the submission of a formal request by the Applicant in the manner prescribed under the law to trigger any statutory approvals. 4) That this court hereby expunges from the report in 2) above the recommendation that there be involvement of a Representative of the Environment & Land Court Kisumu in the process. 5) That for the avoidance of doubt the orders hereinabove shall not invalidate and or supercede any existing court orders and decrees affecting the plot measuring 0.420ha on PDP No. Siaya/340/96/2 of 21/6/96 or any title affecting the said parcel. 6) Each Party shall bear its own costs of this Litigation due to the public interest nature of the proceedings. Orders Accordingly 37

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Delivered and Dated This 21st of September 2026 HON. LADY JUSTICE A.E. DENA JUDGE 21/09/2026 Judgement delivered virtually through Microsoft teams Video Conferencing Platform in the presence of: Mr. Lawi Ogutu for Applicant Mr. Okanda for 1st, 2nd & 4th Respondents N/A for 3rd & 5th Respondents Victor Bwire Court Assistant 38

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