Republic v Attorney General & 2 Others; James Kimeu Kyenze & Another (Interested Parties); Syeuwa Musowe & 2 Others (Exparte Applicants)

1. The Exparte Applicants filed a notice of motion dated 2nd April, 2025 in which they sought the following orders: 1. That the order of certiorari do issue removing to this honourable court and quash the proceedings and decision made by the County Commissioner Kilungu subcounty on 7th November, 2024 in appeal case NO. 354 of 2023 to the Minister of Lands, Settlement & Physical Planning between James Kyenze & Anor vs Stanley Ndolo Nzivu & 4 Others over land No. 2547 in Kyamuoso Adjudication Section Kilungu. 2. That an order of prohibition do issue directed to the 3 rd Respondent from implementing, executing or acting on the decision made by the County Commissioner Kilungu SubCounty on 7th November, 2024 in appeal case No. 354 of 2023 to the Minsiter of Lands, Settlement &Physical Planning between James Kiemu Kyenze & Anor vs Stanley Ndolo Nzivu & 4 others over land No. 2547 in Kyamuoso Adjudication Section – Kilungu. 3. That this honourable court be pleased to issue an order of Mandamus compelling the 3rd Respondent to immediately delete the Interested Party’s name as ordered to be recorded in respect of plot No. 2547 Kyamuoso Adjudication Section – Kilungu and enter the names of the Exparte Applicants being; Syeuwa Musowe, Muasya Muia and Stanley Ndolo Nzivu upon the adjudication register. 4. Costs of this suit and incidentals to the application be provided for; Background 2. The dispute resulting in these proceedings can be traced from the early 1900 when two families were involved in a boundary dispute. According to records, the families had the boundary dispute fixed by elders during the First World War in or around 1946. ELC JR NO. E001 OF 2025 2|Page

page 2 of 12

3. In 1977 Muia Yumbya form the Yumbya family filed a boundary dispute case against Kasimba Malonza from the Kasimba family at Kilungu District Magistrate Court being civil case No. L.83 of 1977. The case was won by Yumbya in a judgment which was delivered on 28th September, 1979. The boundary was fixed along the Miisya trees as shown by the court in accordance with the judgment. 4. When the parties who had filed the case passed away, the dispute was taken over by their families. I shall hereafter refer the families as the Yumbya family and Kasimba family respectively. The Kasimba family was dissatisfied by the decision of Kilungu District Magistrates Court. They appealed against the decision to Machakos Senior Resident Magistrates Court. The appeal was dismissed for having been filed after inordinate delay. The parties were directed to have the boundary fixed by Kilungu Court. This was done. 5. In 2006, the Kasimba family filed a claim against the Yumbya family at Makueni Land Disputes Tribunal vide Tribunal Case No. 22 of 2006. The Kasimba family lost the case. The verdict of the Tribunal was adopted as a judgment of the court at Kilungu Magistrates Court. The boundary was reestablished. 6. During the land adjudication at Kyamuoso Adjudication Section, the suit property was recorded as parcel No. 2547 in favour of the Yumbya family. The Kasimba family filed a complaint before the committee in accordance with the Land Adjudication Act. The claim by the Kasimba family was dismissed by the committee on 26th June, 2008. The committee observed that the dispute between the two families had been settled by Kilungu Court and the boundary fixed. 7. The Kasimba family was not satisfied with the decision of the committee. They filed an objection to the Land Adjudication Officer. The objection was dismissed in a judgment delivered on 14th January, 2020. The Kasimba ELC JR NO. E001 OF 2025 3|Page

page 3 of 12

family were given 60 days within which they were to appeal to the Cabinet Secretary. 8. The Kasimba family filed an appeal against the decision of the Land Adjudication Officer on 14th January, 2021. The appeal was processed administratively and was assigned appeal No. 354 of 2023. In a judgment delivered on 7th November, 2024 by the Deputy County Commissioner, Kilungu Sub County on behalf of the Cabinet Secretary, the Kasimba famly partially won the appeal. The Deputy County Commissioner directed that parcel No. 2547 was to be shared by the Yumbya family and Kasimba family as directed in the judgment. This is what triggered the filing of this Judicial Review application. Exparte Applicants’ Contention 9. The Exparte Applicants contend that the Deputy County Commissioner was biased towards the Yumbya family. They state that when the Deputy County Commissioner visited the suit property, she was hosted by the Kasimba family home and were not invited. They also state that when the appeal was heard on 7th November, 2024, they were told to await the date of judgment. They were never informed of the judgment. They only overheard the family of Kasimba bragging that they had won the appeal. They went and obtained a copy of judgment on 31st January, 2025 when they realized that judgment is purported to have been delivered on 7th November, 2024. 10.The Exparte Applicant also contend that the Deputy County Commissioner acted without jurisdiction in hearing an appeal which was filed outside the statutory period of 60 days. The accuse the Deputy County Commissioner for giving land to persons who were not party to the proceedings. They further contend that the Deputy County Commissioner acted irrationally in drawing an illegal boundary which pushed them away from their land. 11.The Exparte Applicants also contend that the Deputy County Commissioner acted without jurisdiction in ignoring the fact that the dispute at hand had been resolved in Kilungu District Magistrates Court Civil Case No. L.83 of ELC JR NO. E001 OF 2025 4|Page

page 4 of 12

1977. The Exparte Applicants contend that the name of the 3 rd Exparte Applicant was completely left out in the sharing of the suit property according to the judgment of the Deputy County Commissioner. Respondents’ Contention 12.The Respondents opposed the Exparte Applicants’ application based on grounds of opposition dated 15th September, 2025. They contend that the notice of motion is misconceived, bad in law and fatally defective; that the application does not meet the threshold for granting the orders sought; that the application is brought in bad faith and is a waste of the court’s time, that the orders sought are untenable and incapable of being granted and that the application lacks merit and ought to be dismissed with costs. 13.The interested parties who were duly served neither entered appearance nor filed grounds of opposition or replying affidavit. Parties Submissions 14.The parties were directed to file written submissions. The Exparte Applicants filed their submissions dated 22nd July, 2025. The Respondents filed their submissions dated 23rd April, 2026. The Exparte Applicants’ Submissions 15.The Exparte Applicants submitted that the Deputy County Commissioner acted unprocedurally, failed to adhere to the rules of natural justice, considered irrelevant factors while ignoring those which were of great importance. Reliance was placed in the case of Republic –vs- Deputy County Commissioner Justus (Exparte Applicant; Kamumo (Interested Party) (Environment and Land Judicial Review Case E001 of 2023 (2024) KEELC 7131 (KLR) 30 October, 2024 (Judgment [2024] KEELC 7131 (KLB) where it was held as follows: “It is trite law that judicial review concerns itself with the integrity of the process rather than the merits of the decision made in the impugned proceedings. In the case of Chief Constable of the North Wales Police –vs –Evans (1982) 1 WLR 1155, Lord Brightman noted ELC JR NO. E001 OF 2025 5|Page

page 5 of 12

thus; “Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power... judicial review, as word simply, is not an appeal from a decision but a review of the manner in which the decision was made”. The principles of judicial review were also set out in the landmark case of Republic v-s Kenya National Examination Council Exparte Gathenji and 8 others (1997) EKLR where the Court of Appeal stated inter alia: “That an order of certiorari can only quash a decision already made and an order of certiorari will issue if the decision is without jurisdiction or in excess of jurisdiction or where the rules of natural justice are not adhered to or any other reasonable cause. It is trite law that the remedy of judicial review is not concerned with merits of the case, but the decision-making process. In order for an applicant to succeed in an application for judicial review, he must satisfy the court that a public officer has acted unprocedurally, that his decision was unreasonable and that the impugned decision was illegal”. 16.The Exparte Applicants further relied on the case of Municipal Council of Mombasa –vs- Republic & Another (2002) EKLR where the Court of Appeal held as follows: “....And as the court has repeatedly said, judicial review is concerned with the decision-making process, not with the merits of the decision itself. Mr. Justice Waki clearly recognized this and stated so; so that in this mater, for example, the court would not be concerned with the issue of whether the increases in the fees and charges were or were not justified. The court would only be concerned with the process leading to the making of the decision. How was the decision arrived at? Did those who made the decision have the power, i.e. the jurisdiction to make it? Were the persons affected by the decision ELC JR NO. E001 OF 2025 6|Page

page 6 of 12

heard before it was made? In making the decision, did the decision maker take into account relevant matters or did he take into account irrelevant matters? These are the kind of questions a court hearing a matter by way of judicial review is concerned with, and such court is not entitled to act as a court of appeal over the decision; acting as an appeal court over the decision would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision – and that, as we have said, is not the province of judicial review...”. 17. It was further submitted that the Deputy County Commissioner acted without jurisdiction as she entertained an appeal which had been filed outside the 60 days required. Reliance was placed on the case of Republic – vs- District Commissioner; Okello (Exparte Applicant) Oranya (Interested Party) (2023) KEELC 206614 (KLR). 18.It was further submitted that the Deputy County Commissioner dealt with a matter which a matter which had been dealt with by a court of law and in the final judgment, the Deputy County Commissioner left out the 3rd Exparte Applicant from the sharing of the suit property. Respondents’ Submissions 19.The Respondents submitted that the Deputy County Commissioner did not act ultra vires. They referred to the case of Council of Civil Service Unions –vs- Minister for the Civil Service (1985) AC 374 whose Lord Diplock (as he then was) defined ultra vires decision as a decision made without jurisdiction or acting without jurisdiction. 20.The Respondents also submitted that the Exparte Applicants are asking the court to deal with merits of the decision when the scope of judicial review deals with the process leading to the decision. Reliance was placed on the case of Republic –vs- Public Procurement Administrative Review Board & 2 Others Exparte Sanitam Services (EA) Limited (2013) eKLR where it was held as follows: ELC JR NO. E001 OF 2025 7|Page

page 7 of 12

“Judicial review proceedings is that the remedy of judicial review concerned with reviewing, not the merits of the decision in respect of which the application for judicial review is made, but the decision making process. The purpose of the remedies availed to a party under the judicial review regime is to ensure that the individual is given fair treatment by the authority to which he has been subjected. The purpose is not to substitute the opinion of the court for that of the administrative body in which is vested statutory authority to determine the matter in question”. 21.The Respondents also submitted that the introduction of new parties who were not part of the proceedings is a matter which touches on merits and cannot be entertained in a judicial review application. It was also submitted that the Deputy County Commissioner’s failure to consider the decision in Kilungu District Magistrate Court Civil Case L. 83 of 1977 was a matter touching on the merits. 22.It was submitted that all parties were given a fair chance to be heard. It was finally submitted that the orders sought cannot be granted as the remedy of judicial review is a discretionary remedy which may be refused even where there exists grounds for its grant. It was further submitted that the remedy can only be given if it’s the most efficacious to grant. Analysis and Determination 23.I have carefully considered the Exparte Applicants application as well as the opposition to the same by the Respondents. I have also considered the submissions of the Exparte Applicants and those of the Respondents. The only issue for determination in this matter is whether the Exparte Applicants have met the threshold for grant of the remedies sought. 24.In the case of Pastoli –vs- Kabale District Local Government Council & Others (2008) 2 EA 300 it was held as follows: “In order to succeed in an application for judicial review, the Applicant has to show that the decision or act complained of is ELC JR NO. E001 OF 2025 8|Page

page 8 of 12

tainted with illegality, irrationality and procedural impropriety...... Illegality is when the decision making authority commits an error of law in the process of taking 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. It is for example, illegality where a Chief Administrative Officer of a District interdicts a Public Servant on the directions of District Executive Committee, when the powers to do so are bested by law in the District Service Commission..... 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 stands”. 25.The Exparte Applicants submitted that the Deputy County Commissioner entertained the appeal which had been filed outside the period of 60 days allowed by statute. Section 29 (1) of the Land Adjudication Act provides as follows: Any person who is aggrieved by the determination of an objection under section 26 of this Act may, within sixty days after the date of the determination, appeal against the determination to the Cabinet Secretary by— a. Delivering to the Cabinet Secretary an appeal in writing specifying the grounds of appeal; and b. Sending a copy of the appeal to the Director of Land Adjudication, and the Cabinet Secretary shall determine the appeal and make such order thereon as he thinks just and the order shall be final. 26.The Exparte Applicants annexed a copy of the notice of appeal filed by the Interested Parties. The notice is dated 14th January, 2021. The grounds of appeal are dated 9th February, 2021. It is clear that the appeal to the Cabinet ELC JR NO. E001 OF 2025 9|Page

page 9 of 12

Secretary was made after one year a period which was well outside the 60 days given under the statute. The appeal was filed outside the stipulated time contrary to the express provisions of the law. This clearly shows that there was illegality. This was the same finding made in the case of Republic –vs District Commissioner (Supra) where it was held as follows: “...I wish to say that I am in agreement with the Interested Party that the Applicant’s appeal before the Minister was filed out of time and should not have been entertained at all. It is common ground that the decision in the objection proceedings that were appealed to the Minister was made on 11th November, 2003. From the appeal case number that was assigned to the Appellant’s appeal to the Minister, all indications point to the fact that the appeal was not filed until 2007 which was several years after the expiry of the 60 days within which the appeal should have been lodged....”. 27.The Deputy County Commissioner was aware that the dispute had been settled in Kilungu District Magistrates Court Civil Case No. L.83 of 1977. Despite this knowledge she proceeded to make a decision which was irrational by ignoring that decision and questioning the Exparte Applicants why they did not apply for eviction in time. The Deputy County Commissioner also gave portions of the suit property to persons who were not parties to the proceedings while leaving out the 3 rd Exparte Applicant who was a party to the proceedings. The Deputy County Commissioner ordered that the portion belonging to the Yumbya family was to be recorded in the name of Deon Muia, Sila Muia and Mwita Muia. The name of Stanley Ndolo Nzivu was completely left out yet he was a primary party in the proceedings. This decision exhibited gross unreasonableness that no reasonable person would have reached such a decision given the facts of the case and the law. The decision was bereft of logic. 28.The impugned decision contained procedural impropriety. The hearing was conducted within a day and judgment given on the same day. The Exparte ELC JR NO. E001 OF 2025 10 | P a g e

page 10 of 12

Applicants had been informed that they were going to be informed of the date of judgment. They were only alarmed when they overheard the Interested Parties bragging that they had won the appeal. When they went to check on 31st January, 2025 they found that the judgment was purportedly delivered on 7th November 2024. I think in future, those who deliver judgment should indicate the parties present when the same is delivered. This will prevent parties from alleging whether rightly or wrongly that they were not aware of the date of its delivery. 29.In the instant case, there were allegations that when the Deputy County Commissioner visited the suit property she was housed by the Interested Parties and the Exparte Applicants were not present. This allegation was not refuted by either the Respondent or Interested Parties by way of replying affidavit. Even though I do not wish to cast aspersions on the efficiency of the Deputy County Commissioner, it is doubtful that a hearing, site visit and delivery of judgment would take a single day as happened in this case. 30.It is clear that the Deputy County Commissioner breached the rules of natural justice by not inviting the Exparte Applicants to the site visit and not informing them of the date of delivery of judgment. Disposition 31.From the above analysis, I find that the decision of the Deputy County Commissioner was illegal, irrational and was tainted with unprocedural impropriety. Consequently, I allow the Exparte Applicants’ notice of motion dated 2nd April, 2025 in its entirety. ........................................... HON. E. O. OBAGA, FCIArb JUDGE JUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 24TH DAY OF SEPTEMBER, 2026. IN THE PRESENCE OF: Mr. Kuria for the Respondents ELC JR NO. E001 OF 2025 11 | P a g e

page 11 of 12

Court assistant – Kilonzi and Musyoki ELC JR NO. E001 OF 2025 12 | P a g e

page 12 of 12