Republic v The Principal Magistrate, Kajiado Magistrate Law Court & 3 Others; Ex-Parte Peter M Dama Meeli & 2 Others

KAJIADO LANDS REGISTRY ……………………………….. 3RD RESPONDENT DEPUTY COUNTY COMMISSIONER ISINYA – SUB-COUNTY……………………………………………… 4TH RESPONDENT AND PETER M DAMA MEELI ……………………….….. 1ST EX-PARTE APPLICANT PAUL SAOLI OLE NCHAKE ………………..……. 2ND EX-PARTE APPLICANT JASON OLE MOOKE TONOU ……………….…. 3RD EX-PARTE APPLICANT JUDGMENT Introduction 1. By way of an Amended Notice of Motion dated 5th May 2025 and filed on 17th July 2025, brought pursuant to Articles 23(F), 47, 48, 50(1), and 159(2) of the Constitution of Kenya, 2010, Sections 1A, 1B, and 3A of the Civil Procedure Act (Cap 21), Section 7(1)(c) of the Magistrates Court Act, 2015, Sections 73 and 78 of the Land Registration Act, 2012, and Order 53 Rules 1(1), (2), and (4) of the Civil Procedure Rules , the Ex-Parte Applicants moved this Honourable Court instituting judicial review proceedings against the Respondents. 2. The substantive orders as sought by the Ex-Parte Applicants in the said application were as follows: 1. THAT this Honourable Court be and is hereby pleased to grant an order of prohibition restraining the 3rd Respondent, his servants and __________________________________________________________________ JUDGMENTS ELCJR E014/2025 2

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agents from executing the Orders issued by the 1st Respondent on 2nd July 2025 in Kajiado Miscellaneous Application No. E014 of 2025: Philip Sironka Ole Lemitei -vs- The District Land Registrar Kajiado Lands Registry & Deputy County Commissioner Isinya Sub-County. (i) Directing the 3rd Respondent to lift the existing cautions placed on title number Kajiado/Kaputiei-North/67 and its resultant subdivisions parcels No. Kajiado/Kaputiei-North/129251; 129252; 129253; 129254; 129255; 129256; 129257; 129258; 129259; 129260; 129261; 129262; 129263; 129264; 129265; 129266; 129267; 129268 and 129269 OR directing the 3rd Respondent not to act upon any applications for registration of cautions; (ii) Directing the 3rd Respondent not to register any restrictions, cautions, encumbrances or inhibitions on title number: Kajiado/Kaputiei-North/67 and its resultant subdivisions parcels no.: Kajiado/Kaputiei-North/129251; 129252; 129253; 129254; 129255; 129256; 129257; 129258; 129259; 129260; 129261; 129262; 129263; 129264; 129265; 129266; 129267; 129268 and 129269 without an order of court. (iii) Directing the 4th Respondent to execute the Land Control Board Consent Applications for the suit property Known as Kajiado/Kaputiei-North/129251; 129252; 129253; __________________________________________________________________ JUDGMENTS ELCJR E014/2025 3

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129254; 129255; 129256; 129257; 129258; 129259; 129260: 129261; 129262: 129263: 129264; 129265: 129266; 129267; 129268 and 129269 without an order of court. 2. THAT the Honourable Court be and is hereby pleased to grant an order of certiorari to bring to this court and to quash the orders issued on 2nd July 2025 by the 1st Respondent in Kajiado Miscellaneous Applications No. E014 of 2025; Philip Sironka Ole Lemitei -vs- The District Land Registrar Kajiado Lands Registry and Deputy County Commissioner Isinya Sub-County. 3. THAT the Honourable Court be pleased to grant such other or further relief as it may deem fit in the circumstances. 4. THAT the costs of this Application be borne by the Respondents. 3. The Ex-Parte Applicants are residents of Kajiado County residing within the Embolioi Area in Isinya Sub-County and members of the Embolioi Community. The 1st Respondent is the Principal Magistrate presiding at the Kajiado Magistrate's Court; the 2nd Respondent is an individual purportedly holding a title deed over the subject property (Kajiado/Kaputiei-North/67) and its resultant subdivisions; the 3rd Respondent is the District Land __________________________________________________________________ JUDGMENTS ELCJR E014/2025 4

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Registrar, Kajiado Lands Registry; and the 4th Respondent is the Deputy County Commissioner, Isinya Sub-County. 4. The genesis of the dispute revolves around parcel number Kajiado/KaputieiNorth/67, measuring approximately 225 acres, which the Ex-Parte Applicants claim is community land originally set aside as trust land from the defunct Embolioi Group Ranch. The application specifically challenges the legality, procedural propriety, and jurisdictional competence of the ex-parte interim orders and subsequent rulings issued by the 1st Respondent on 14th March 2025 and 2nd July 2025 in Kajiado Miscellaneous Application No. E014 of 2025 (Philip Sironka Ole Lemitei v. The District Land Registrar Kajiado Lands Registry & Deputy County Commissioner Isinya Sub-County). 5. The 2nd Respondent (Philip Sironka Ole Lemeitei) opposed the Ex-Parte Applicants' application, characterizing it as an incompetent "mongrel unknown in law," devoid of merit, and an abuse of the due process of the court. He contended that the Ex-Parte Applicants improperly utilized judicial review as a backdoor substitute for an appeal against the lower court's determination. 6. The 2nd Respondent maintained that he is the absolute and indefeasible registered proprietor of the mother parcel, L.R. No. Kajiado/Kaputiei__________________________________________________________________ JUDGMENTS ELCJR E014/2025 5

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North/67, measuring approximately 90 hectares. He insists that he was lawfully allocated the land by the defunct OlKejuado County Council vide Minute 10/10 of its full council meeting held on March 14, 2000, culminating in the issuance of a title deed on April 14, 2015. 7. The 2nd Respondent explained that the mother parcel was subsequently subdivided into nineteen resultant plots (Nos. Kajiado/Kaputiei-North/129251 through 129269). He asserted that the cautions lodged by the Ex-Parte Applicants were baseless, as no sale agreements or legitimate registrable interests existed between the parties, and that his original application aimed to clear unwarranted encumbrances and facilitate statutory development approvals. 8. The 2nd Respondent challenged the Ex-Parte Applicants' standing, asserting they lacked locus standi to represent the Embolioi Community because the Embolioi Group Ranch was dissolved in 1987 and possesses no legal successor; a position affirmed by the High Court in Nairobi ELC Case No. 1897 of 2000 (later Kajiado ELC Case No. 248 of 2017). He further alleged that the applicants' claim stemmed from personal bitterness, coercion, and attempts at blackmail following the squandering of their own family land allocations. __________________________________________________________________ JUDGMENTS ELCJR E014/2025 6

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9. The 2nd Respondent emphasized that the legality of his title is already squarely before the Environment and Land Court in Kajiado ELC Petition No. E006 of 2025, making the parallel judicial review procedurally premature and legally untenable. 10.The Ex-Parte Applicants defended the competence of their application against the 2nd Respondent's characterization. They explained that judicial review was their only viable remedy because they were not parties to the initial magistrate's court proceedings; their joinder application was dismissed by the impugned ruling, and they consequently lacked the locus standi required to file an appeal. 11. The applicants maintained that their legal capacity to represent the community, arose through a signed authority to act executed by the successors and representatives of the defunct Embolioi Group Ranch. 12.Moreover, they challenged the root of the 2nd Respondent's title, arguing that the underlying allocation of trust land by the defunct OlKejuado County Council breached mandatory statutory procedures and consent requirements under the repealed Trust Land Act and the former Constitution. Additionally, based on the 2nd Respondent's own valuation of KES 2,000,000 per acre in Kajiado ELC Case No. E002 of 2026, the ~222__________________________________________________________________ JUDGMENTS ELCJR E014/2025 7

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acres subject property is valued at approximately KES 444,000,000, which exceeds the pecuniary jurisdiction of the Magistrate's Court under Section 7(1)(c) of the Magistrates Court Act, 2015. 13.The 1st, 3rd, and 4th Respondents opposed the instant judicial review application as incompetent, misconceived, and an abuse of the court process. They contended that the application fails to disclose recognizable grounds under Order 53 of the Civil Procedure Rules and improperly invites the court to sit on appeal on the merits of the lower court's decision. 14.The Attorney General emphasized that the 3rd Respondent (District Land Registrar) and the 4th Respondent (Deputy County Commissioner) were merely performing statutory duties under the Land Registration Act, 2012 and the Land Control Act (Cap 302). They argued that the reliefs sought would unlawfully fetter their statutory discretions and prevent them from complying with subsisting court orders. 15.They maintained that the order of prohibition cannot issue to restrain the implementation of lawful court orders already issued, and that the prayer for certiorari is legally untenable due to the absence of any apparent error of law on the face of the record or jurisdictional defect. Analysis of Submissions __________________________________________________________________ JUDGMENTS ELCJR E014/2025 8

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Ex-parte applicant’s Submissions 16.In their written submissions, the ex-parte applicants contend that judicial review is the proper mechanism to challenge the legality, procedural propriety, and jurisdictional competence of the decision-making process, rather than the merits of the decision itself. 17.To support this distinction, they rely on the Court of Appeal decisions in Municipal Council of Mombasa v Republic; Umoja Consultants Ltd (Interested Party) [2002] KECA 8 (KLR) and Republic v Kenya National Examinations Council ex parte Gathenji & Others [1997] eKLR. They invoke Articles 23(3)(f), 47, 48, 50(1), 159(2), and 165(6) and (7) of the Constitution of Kenya, 2010, Sections 1A, 1B, 3A, and 27 of the Civil Procedure Act (Cap 21), Sections 8 and 9 of the Law Reform Act, and Section 7 of the Fair Administrative Action Act, 2015. 18.Furthermore, the ex-parte applicants argue that the trial magistrate acted ultra vires and exceeded her pecuniary jurisdiction under Section 7(1)(c) of the Magistrates Court Act, 2015, given that the subject property, measuring approximately 225 acres, was valued at over KES 440,000,000 based on the 2nd respondent's own deposed valuation of KES 2,000,000 per acre, far exceeding the KES 10,000,000 statutory ceiling for the Principal Magistrate. __________________________________________________________________ JUDGMENTS ELCJR E014/2025 9

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On this jurisdictional question, they cite the locus classicus Owners of the Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Limited [1989] KLR 1, Samuel Kamau Macharia & Another v. Kenya Commercial Bank Limited & 2 Others [2012] eKLR, and Phoenix of E.A. Assurance Company Limited v. S.M. Thiga t/a Newspaper Service [2019] eKLR to establish that proceedings conducted without jurisdiction are a nullity ab initio. 19.The ex-parte applicants further submit that the 1st respondent fundamentally breached the rules of natural justice and their right to a fair hearing under Articles 47(1) and 50(1) of the Constitution, as well as Sections 4(3)(b) and 4(4)(b) of the Fair Administrative Action Act, 2015, by dismissing their joinder application and simultaneously determining the substantive miscellaneous application against their interests without affording them an opportunity to be heard on the merits of the cautions they had lodged. They rely on the Court of Appeal decision in David Oloo Onyango v Attorney-General [1987] KECA 56 (KLR) regarding the mandatory application of the audi alteram partem rule, alongside Environment and Land Court decisions in Mwangi Rukwaro & another v Land Registrar, Nyeri [2019] KEELC 3985 (KLR) and Anna Chesaina Kenduiywa v Nandi County Land Registrar [2022] KEELC 2136 (KLR). They further argue that the 2nd __________________________________________________________________ JUDGMENTS ELCJR E014/2025 10

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respondent failed to follow the mandatory statutory procedure set out under Sections 73 and 78 of the Land Registration Act, 2012, by bypassing the Land Registrar and improperly initiating a miscellaneous application instead of filing a formal plaint. Attorney General’s Submissions 20. In contrast, the 1st, 3rd, and 4th respondents, represented by the Attorney General, submit that the ex-parte applicants are not entitled to the prerogative orders of certiorari and prohibition. The Attorney General contends that the 3rd respondent acted lawfully in observing the court order dated July 17, 2025, when lifting the cautions, and that judicial review is strictly concerned with the legality of the decision-making process under the principles of illegality, irrationality, and procedural impropriety, as famously articulated in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (the GCHQ case) and Chief Constable of North Wales Police v Evans [1982] 3 All ER 141. 21. Citing Section 80(1) and (2) of the Land Registration Act, the Attorney General argues that the land register may be rectified by court order, making the 3rd respondent's compliance proper. Furthermore, relying on the Court of Appeal ruling in Kenya National Examinations Council v Republic ex __________________________________________________________________ JUDGMENTS ELCJR E014/2025 11

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parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR, the Attorney General asserts that an order of prohibition is prospective and cannot be utilized to restrain statutory officers from complying with subsisting court orders, nor can it undo completed actions. 22. To reinforce the binding nature of court orders and the principle that public officers are bound by Article 10 of the Constitution and cannot disobey them, the Attorney General cites Danson Mwangi Kiawano v County Secretary of Nairobi [2016] KEHC 3295 and the English decision in Hadkinson v Hadkinson [1952] 2 All ER 56, while also noting that the 4th respondent and the Land Control Board operate under Section 9(1) of the Land Control Act (Cap 302) and cannot be compelled by judicial review to act contrary to law. The 2nd Respondent’s Submissions 23. The 2nd respondent, opposes the instant judicial review application maintaining that the application is entirely devoid of merit. The 2nd respondent anchors his submission on the doctrine of exhaustion of administrative and statutory remedies, asserting that where a specific appeal mechanism is provided by law, a party must strictly follow it rather than resort to judicial review. He places heavy reliance on the landmark Court of __________________________________________________________________ JUDGMENTS ELCJR E014/2025 12

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Appeal decision in Speaker of the National Assembly v Karume [1992] eKLR, Republic v Kenya National Examination Council ex parte Geoffrey Gathenji & 9 Others [1997] eKLR, Republic v ADT ex parte Apollo Mboya [2019] eKLR, and Republic v Judicial Service Commission & Another Ex Parte Pareno [2004] eKLR, alongside Justice R.E. Aburili's comprehensive analysis in Ronald Morara Ngisa v Disciplinary Committee of the Law Society of Kenya; Harvest Limited (Interested Party) [2025] KEHC 6002 (KLR). He also cites Section 9(2) of the Fair Administrative Action Act and Section 62 of the Advocates Act to emphasize that allegations of a denied hearing do not automatically warrant bypassing statutory appeal channels. 24. On the factual and substantive merits, the 2nd respondent details that he was lawfully allocated the mother property, Kajiado/Kaputiei-North/67, measuring approximately 90 hectares, by the OlKejuado County Council on March 14, 2000, after which it was subdivided into nineteen resultant parcels (Kajiado/Kaputiei-North/129251 to 129269) following approval by the Land Control Board, resulting in the closure of the mother title. He argues that the ex-parte applicants lack any legal standing or recognizable interest to lodge cautions, noting that the defunct Embolioi Group Ranch was dissolved in 1987 with no legal successor, a position previously affirmed __________________________________________________________________ JUDGMENTS ELCJR E014/2025 13

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by Justice L. Gacheru in Nairobi ELC Case No. 1897 of 2000 (subsequently Kajiado ELC Case No. 248 of 2017). Citing Section 71 of the Land Registration Act, 2012, as well as judicial precedents in Maria Ngangi Gwako v Charles Mwenzi Ngangi [2014] eKLR and Dinara Properties Limited v Malcedian Properties Limited & Another [2018] eKLR, the 2nd respondent contends that a caution can only be lodged by a person claiming a valid registrable interest, which the applicants failed to demonstrate, having never executed any sale agreement with him. Finally, the 2nd respondent maintains that the applicants are attempting to turn judicial review into an appellate court and abuse court processes while simultaneously prosecuting parallel ownership claims in Kajiado ELC Petition No. E006 of 2025 ( Peter M Dama Meeli & 2 Others v County Government of Kajiado & 5 Others ), warranting the dismissal of the application with costs. Issues for Determination 25. Having considered the pleadings before the court, the responses thereto and the written submissions by the respective parties, this court finds that the following issues arise for determination: __________________________________________________________________ JUDGMENTS ELCJR E014/2025 14

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i. Whether this Court has jurisdiction to entertain the present judicial review proceedings and whether the 1st Respondent acted within her lawful jurisdiction; ii. Whether the 1st Respondent acted in excess of jurisdiction by entertaining and determining the 2nd Respondent's application for removal of the cautions, having regard to the alleged value of the suit property and the procedure prescribed under the Land Registration Act, 2012; iii. Whether the 1st Respondent violated the Ex-Parte Applicants' right to fair administrative action and fair hearing by determining the substantive application without affording them an opportunity to be heard; iv. Whether the 2nd Respondent was required to exhaust the statutory mechanism under the Land Registration Act before approaching the court and whether the impugned proceedings were therefore premature or procedurally incompetent; v. Whether the Ex-Parte Applicants have established the grounds for the grant of orders of certiorari and prohibition; and vi. What orders should issue, including the question of costs. __________________________________________________________________ JUDGMENTS ELCJR E014/2025 15

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Analysis and Determination I. Whether this Court has jurisdiction to entertain the proceedings and whether the 1st Respondent acted within his lawful jurisdiction 26. The starting point is jurisdiction. The present proceedings challenge decisions made by a subordinate court in a dispute concerning cautions registered against land titles. The impugned proceedings therefore concern title to, use and occupation of land and fall within the specialized jurisdiction of this Court. 27. Article 162(2)(b) of the Constitution establishes a court with the status of the High Court to hear and determine disputes relating to "the environment and the use and occupation of, and title to, land." Section 13 of the Environment and Land Court Act, 2011 gives effect to that constitutional dictate. The Environment and Land Court also exercises appellate jurisdiction over decisions of subordinate courts relating to matters falling within its jurisdiction. 28. More importantly for present purposes, is the question whether a subordinate court exercising jurisdiction in a land matter is subject to the supervisory jurisdiction of this court. __________________________________________________________________ JUDGMENTS ELCJR E014/2025 16

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29. In Muturi v Kimuyu (Environment and Land Miscellaneous Application No. 28 of 2022) [2022] KEELC 15592 (KLR), the Court held that: “The above article (165) donates power to the High Court to supervise the subordinate courts. This matter is filed in the Environment and Land Court. Article 162(2)(b) establishes the Environment and Land Court, which has equal status with the High Court. Therefore, the above article 165(6) of the Constitution, also grants this court supervisory power over the subordinate court in matters relating to the environment and the use, occupation of and title to land.” 29. Similarly, in Republic v National Land Commission & 3 Others; National Land Commission (Interested Parties) ex parte James Finlay Kenya Limited & 10 Others [2020] KEHC 8663 (KLR), the Court observed that the Environment and Land Court, being a court of equal status to the High Court, exercises supervisory jurisdiction over subordinate courts and tribunals in matters falling within the scope of Article 162(2)(b) of the Constitution. 30. I therefore find that this Court is properly seized of jurisdiction to examine whether the impugned proceedings and decisions of the 1st Respondent __________________________________________________________________ JUDGMENTS ELCJR E014/2025 17

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were undertaken within the limits of the jurisdiction conferred upon the Magistrates' Court by the Constitution and statute. This jurisdiction is supervisory and not appellate. 31. The distinction is important since judicial review is not an avenue through which this Court substitutes its own view of the merits for that of the subordinate court. Its concern is whether the decision-maker acted within jurisdiction, complied with the law and followed a fair procedure. 32. The classic formulation remains that in Pastoli v Kabale District Local Government Council & Others [2008] 2 EA 300, where the Court stated 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.” The Court went on to explain that: “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.” __________________________________________________________________ JUDGMENTS ELCJR E014/2025 18

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33. The statutory framework is now substantially reinforced by section 7(2) of the Fair Administrative Action Act, 2015. The Court may review an administrative action or decision where, inter alia, the decision-maker was not authorized to make the decision, acted in excess of jurisdiction, denied a person a reasonable opportunity to state their case, failed to comply with a mandatory procedure, acted unfairly, procedurally or materially erred in law. 34. It follows then that the question before this Court is not whether the 1st Respondent reached the correct conclusion on the merits. The question is whether she had jurisdiction to make the decision complained of and whether, in exercising that jurisdiction, she complied with the applicable law and principles of fair hearing. ii. Whether the 1st Respondent acted in excess of jurisdiction by entertaining and determining the 2nd Respondent's application for removal of the cautions, having regard to the alleged value of the suit property and the procedure prescribed under the Land Registration Act, 2012 35. The Ex-Parte Applicants' principal jurisdictional argument is twofold. First, they contend that the value of the property exceeded the pecuniary __________________________________________________________________ JUDGMENTS ELCJR E014/2025 19

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jurisdiction of the Principal Magistrate. Secondly, they contend that the 2nd Respondent bypassed the statutory procedure governing removal of cautions under the Land Registration Act. 36. As regards pecuniary jurisdiction, Section 7(1) of the Magistrates' Courts Act provides that: “A magistrate's court shall have and exercise such jurisdiction and powers in proceedings of a civil nature in which the value of the subject matter does not exceed—” and subsection (1)(c) prescribes: “ten million shillings, where the court is presided over by a principal magistrate.” 37. The importance of jurisdiction cannot be overstated. In Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR, the Supreme Court held that: “A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” __________________________________________________________________ JUDGMENTS ELCJR E014/2025 20

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The Court further stated that: “The issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.” 38. The same principle was authoritatively expressed in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, where Nyarangi JA famously stated: “Jurisdiction is everything. Without it, a court has no power to make one more step.” 39. However, the Court must distinguish between the value of land which may ultimately be in dispute in substantive ownership proceedings and the subject matter of the particular proceedings before the Magistrate. 40. The proceedings before the 1st Respondent, as disclosed by the material placed before this Court, concerned removal of cautions and consequential directions relating to the land register. The mere assertion that the land is worth approximately Kshs. 444 million or Kshs.450 million does not, without more, establish that the subject matter of the particular application __________________________________________________________________ JUDGMENTS ELCJR E014/2025 21

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before the Magistrate was a claim for recovery or determination of property worth that amount. 41. The Ex-Parte Applicants rely substantially on the 2nd Respondent's alleged valuation of the land at Kshs. 2 million per acre in another proceeding. That evidence may be relevant to the substantive dispute over the value and ownership of the land. It does not, by itself, conclusively demonstrate that the 1st Respondent was exercising a monetary jurisdiction beyond that conferred upon him in the specific proceedings before him. 42. More importantly, the question of jurisdiction in this matter is not determined solely by valuation. It must also be determined by the nature of the jurisdiction invoked by the 2nd Respondent and the statutory regime governing the particular relief sought. 43. Section 73 of the Land Registration Act, 2012 provides: “A caution may be withdrawn by the cautioner or removed by order of the court or, subject to subsection (2), by order of the Registrar.” Subsection (2) provides: “The Registrar, on the application of any person interested, may serve notice on the cautioner warning the cautioner that the __________________________________________________________________ JUDGMENTS ELCJR E014/2025 22

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caution will be removed at the expiration of the time stated in the notice.” Subsection (4) further provides: “If the cautioner objects to the removal of the caution, the cautioner shall notify the Registrar, in writing, of the objection within the time specified in the notice, and the Registrar shall, after giving the parties an opportunity of being heard, make such order as the registrar considers fit...” 44. The statutory scheme is therefore clear: a caution may be removed by the Registrar through the procedure prescribed by section 73, or by an order of the court. The existence of a concurrent power in the court does not, however, dispense with the requirement that a person affected by the removal be accorded a hearing. 45. The Land Registration (General) Regulations, 2017 reinforce this procedure. Regulation 80 provides for the application for removal of a caution, notice to the cautioner, an opportunity to object and, where objection is made, a hearing before the Registrar. 46. There is judicial authority pointing in both directions concerning the procedural vehicle by which an application for removal of a caution may be __________________________________________________________________ JUDGMENTS ELCJR E014/2025 23

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presented before court. In Joseph Kibowen Chemjor v William C. Kisera [2013] KEELC 140 (KLR), the Court held that a miscellaneous application was not a recognized mode of instituting a substantive suit for removal of a caution. Similarly, in Anna Chesaina Kenduiywa v Nandi County Land Registrar [2022] KEELC 2136 (KLR), the Court held that the statutory mechanism should first be exhausted and observed that a substantive action for removal of a caution should ordinarily be commenced by plaint. 47. More recently, however, in Kurgat v Land Registrar & 3 Others (Environment and Land Miscellaneous Application E027 of 2024) [2024] KEELC 14195 (KLR), the Court observed that Section 73 does not itself prescribe the manner in which a court application for removal of a caution must be instituted and held that the critical consideration is whether the cautioner has been given an opportunity to participate. 48. This Court therefore considers that the decisive issue is not the nomenclature of the proceedings alone. The court must examine whether the statutory rights of the affected cautioners were respected and whether the subordinate court exercised the jurisdiction vested in it in accordance with law. 49. In the present case, the material before this Court demonstrates that the ExParte Applicants had lodged the cautions and that their interests were __________________________________________________________________ JUDGMENTS ELCJR E014/2025 24

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directly affected by the application seeking their removal. They were therefore persons whose legal interests were liable to be adversely affected by the orders sought. 50. It follows that, regardless of the ultimate merit or lack of it, the 1st Respondent was obligated to ensure that the affected cautioners were afforded a meaningful opportunity to be heard before making orders finally determining their rights. iii. Whether the 1st Respondent violated the Ex-Parte Applicants' right to fair administrative action and fair hearing by determining the substantive application without affording them an opportunity to be heard 51. This is, in my view, the central question in the present proceedings. 52. The Ex-Parte Applicants' case is that they sought joinder in the lower court proceedings, that their application for joinder was dismissed, and that the 1st Respondent nevertheless proceeded to determine the substantive dispute concerning the cautions in a manner directly affecting them. __________________________________________________________________ JUDGMENTS ELCJR E014/2025 25

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53. The right to a fair hearing is protected by Article 50(1) of the Constitution, while Article 47(1) guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. 54. Section 7(2)(a)(v) of the Fair Administrative Action Act expressly empowers a reviewing court to intervene where the decision-maker ‘denied the person to whom the administrative action or decision relates, a reasonable opportunity to state the person's case’ whereas section 7(2)(b) similarly permits intervention where: ‘a mandatory and material procedure or condition prescribed by an empowering provision was not complied with’. Section 7(2)(c) further allows intervention where, ‘the action or decision was procedurally unfair’. 55. The principle is not merely technical. In David Oloo Onyango v Attorney- General [1987] KECA 56 (KLR), the Court of Appeal underscored the fundamental character of the audi alteram partem rule. A person whose rights or interests are liable to be adversely affected by a decision must ordinarily be afforded an opportunity to be heard before the decision is made. __________________________________________________________________ JUDGMENTS ELCJR E014/2025 26

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56. The same principle has been specifically applied in land registration disputes. In Mwangi Rukwaro & Another v Land Registrar, Nyeri [2019] KEELC 3985 (KLR), the Court held that: “Whilst this court has power to order for removal of the caution/restriction herein, it cannot do that through a process where the cautioner or his legal representative has not been given an opportunity to participate.” 57. The Court further stated that the statutory process should be invoked because it is through that process that it can be determined whether there is a person with an interest in maintaining the caution. 58. The requirement of hearing is equally recognized in the statutory procedure itself. Section 73(4) expressly requires the Registrar, where an objection has been raised, to give the parties an opportunity of being heard. 59. The critical question, therefore, is whether the Ex-Parte Applicants were merely persons who had no legal interest whatsoever in the proceedings, or whether they were persons who had lodged cautions and whose interests would necessarily be affected by their removal. 60. In my view, the latter is the correct characterization. The very fact that the Applicants had lodged cautions over the property meant that the __________________________________________________________________ JUDGMENTS ELCJR E014/2025 27

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application before the 1st Respondent sought relief directly adverse to them. Whether their claimed interest was ultimately valid under Section 71 of the Land Registration Act was a question requiring determination. It could not properly be assumed against them without giving them an opportunity to address the court. 61. The Supreme Court of India in the case of Mohinder Singh Gill vs Chief Election Commissioner AIR 1978 SC 851, emphasized on the necessity for a tribunal to ensure natural justice stating that; “Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes, it applies when people are affected by acts of authority. It is the bone of healthy government, recognized from earliest times and not a mystic testament of judge-made law. Indeed from the legendary days of Adam-and of Kautllya's Arthashastra - the rule of law has had this stamp of natural justice, which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not new-fangled. Today its __________________________________________________________________ JUDGMENTS ELCJR E014/2025 28

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application must be sustained by current legislation, case law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the AngloAmerican system." 62. The right to be heard does not depend upon the court ultimately agreeing with the person heard. It is the opportunity to present one's case before an adverse determination is made that constitutes the essence of procedural fairness. 63. In Onyango v. Attorney General (1986-1989) EA 456 , Nyarangi, JA asserted at page 459 that: “I would say that the principle of natural justice applies where ordinary people who would reasonably expect those making decisions which will affect others to act fairly. A decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right. If the principle of natural justice is violated, it matters not that the same decision would have been arrived at.” 64. Consequently, as appears from the record, the 1st Respondent dismissed the Ex-Parte Applicants' application for joinder and proceeded to determine the substantive application for removal of the cautions without permitting them __________________________________________________________________ JUDGMENTS ELCJR E014/2025 29

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to participate in the determination of that substantive application. The resulting decision was procedurally unfair. Procedural impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision and unfair procedure is adopted. The unfairness may be in non-observance of the Rules of Natural Justice or failure to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision. I find that the decision complained of illegal, irrational and arrived at through an improper procedure. 65. This constitutes an independent ground upon which judicial review may properly issue. iv. Whether the 2nd Respondent was required to exhaust the statutory mechanism under the Land Registration Act before approaching the court and whether the impugned proceedings were therefore premature or procedurally incompetent; 63. The 2nd Respondent relied heavily upon the doctrine of exhaustion, contending that the Ex-Parte Applicants ought to have pursued the statutory __________________________________________________________________ JUDGMENTS ELCJR E014/2025 30

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mechanisms and that judicial review was being employed as an appellate device. 64. The doctrine of exhaustion is firmly established in Kenyan law. In Speaker of the National Assembly v Karume [1992] KLR 21, the Court of Appeal held: “Where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.” 65. The principle has subsequently been reaffirmed in numerous decisions. Section 9(2) of the Fair Administrative Action Act now gives statutory expression to the doctrine by providing that a court shall not review an administrative action or decision unless the mechanisms for appeal or review and all remedies available under written law have first been exhausted, subject to the exceptions recognized by law. 66. The present case, however, presents an important distinction. The Ex-Parte Applicants are not seeking, in the first instance, to challenge the merits of the removal of their cautions. Their complaint is that the decision-making process itself was unlawful and procedurally unfair. 67. Further, the statutory process under Section 73 of the Land Registration Act primarily regulates the Registrar's removal of a caution. The fact that Section __________________________________________________________________ JUDGMENTS ELCJR E014/2025 31

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73 also recognizes removal by order of the court does not mean that a court may dispense with the principles of natural justice when exercising that jurisdiction. 68. The statutory mechanism must therefore be understood as complementing, rather than displacing, the fundamental requirement of fair hearing. 69. In any event, the doctrine of exhaustion does not operate to validate an otherwise unlawful exercise of jurisdiction or to cure a violation of the right to a fair hearing. Where the complaint is that the decision-maker acted without jurisdiction or in breach of a mandatory procedural requirement, judicial review remains available to supervise the legality of the decisionmaking process. 70. I therefore reject the submission that the existence of statutory procedures, in itself, bars these proceedings. The Court is not being asked to determine whether the cautions should ultimately remain on the register. It is being asked to determine whether the process through which their removal was ordered by the 1st Respondent complied with the law. v. Whether the Ex-Parte Applicants have established the grounds for the grant of orders of certiorari and prohibition __________________________________________________________________ JUDGMENTS ELCJR E014/2025 32

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71.Having found that the principal complaint concerns legality and procedural fairness, I now turn to the specific remedies sought. 72. The distinction between certiorari and prohibition is well settled. In Kenya National Examinations Council vs Republic ex parte Geoffrey Gathenji Njoroge & 9 Others [1997] eKLR, the Court of Appeal explained the nature of prohibition in the following terms: “Prohibition looks to the future...” and further held that: “Where a decision has been made, whether in excess or lack of jurisdiction or whether in violation of the rules of natural justice an order of prohibition would not be efficacious against the decision so made. Prohibition cannot quash a decision which has already been made; it can only prevent the making of a contemplated decision.” 73. The Court further explained that only an order of certiorari can quash a decision already made and that certiorari may issue where the decision was made without jurisdiction, in excess of jurisdiction or in breach of the rules of natural justice. __________________________________________________________________ JUDGMENTS ELCJR E014/2025 33

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74. In the present case, the orders of 14th March 2025 and 2nd July 2025 have already been made. To the extent that the Ex-Parte Applicants seek to invalidate those decisions, the appropriate remedy is therefore certiorari and not prohibition. Prohibition is prospective and cannot retrospectively undo a completed decision. 75. The Court must, however, consider the substance of the complaint rather than merely the label attached to the relief. If the impugned orders are quashed by certiorari, any consequential implementation founded solely upon those orders cannot stand as a matter of course. 76. The Ex-Parte Applicants have, in my assessment, established a proper ground for certiorari in relation to procedural impropriety. The impugned determination directly affected the cautions which they had lodged, yet the material before the Court establishes that they were denied an effective opportunity to participate in the substantive determination after their joinder application was rejected. 77. The defect is not one of mere form. It goes to the legality of the decisionmaking process itself. As Mativo J (as he then was) succinctly observed in the case of Abdul Waheed Sheikh and Abdul Hameed Sheikh as Trustees of the __________________________________________________________________ JUDGMENTS ELCJR E014/2025 34

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Sheikh Fazal Ilahi Noordin Charitable Trust v Commissioner of Lands & 5 others [2018] KEHC 4431 (KLR), “…a decision arrived at in total breach of a court decision is outrightly illegal. Further, a decision that offends the provisions of Article 47 of the constitution and Fair Administrative Action Act is illegal and cannot be allowed to stand. A decision or action that has been taken 'beyond the powers' (in latin, 'ultra vires') of the person or body responsible for it or which is unreasonable is illegal. 78. I have further considered the Applicants' alternative contention that the decision ought also to be quashed on account of pecuniary jurisdiction. I am not persuaded that this ground has been sufficiently established. The valuation of the entire parcel, without more, does not conclusively demonstrate that the particular proceedings before the Magistrate were a civil claim whose subject matter exceeded the statutory pecuniary ceiling. The Court therefore declines to base its determination on that ground. 79. The Court's conclusion is instead founded principally upon the failure to afford the affected cautioners a fair opportunity to be heard and the consequent procedural impropriety rendering the decision(s) by the 1 st Respondent illegal. __________________________________________________________________ JUDGMENTS ELCJR E014/2025 35

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80. There is also a further reason why the orders cannot be sustained in their present form. The reliefs granted by the 1st Respondent appear to have gone beyond the immediate question of removal of the cautions and extended to directions concerning future registration of restrictions, cautions and encumbrances and the execution of Land Control Board consent applications. 81. Judicial review requires a decision-maker to remain within the four corners of the jurisdiction conferred by the enabling law. The court cannot use a statutory power concerning one subject matter as a basis for granting collateral orders that effectively determine substantive proprietary rights or fetter statutory powers without a proper legal foundation. 82. As the Supreme Court reiterated in Samuel Kamau Macharia, a court cannot arrogate to itself jurisdiction exceeding that conferred by law. 83. The 1st Respondent's orders therefore cannot be sustained to the extent that they determine matters beyond the lawful scope of the proceedings or affect persons who were not afforded a fair opportunity to be heard. 84. The Court is has taken note of the 2nd Respondent's submission that the ExParte Applicants are effectively seeking to appeal the merits of the Magistrate's decision. __________________________________________________________________ JUDGMENTS ELCJR E014/2025 36

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85. That submission would have considerable force if the Applicants were asking this Court to determine whether the 2nd Respondent has a better title, whether the cautions are substantively justified, or whether the Applicants have a superior proprietary interest in Kajiado/Kaputiei-North/67. 86. Those questions are not for determination in these judicial review proceedings. Indeed, the material before Court indicates that the substantive dispute concerning the ownership and root of title to the property is pending elsewhere. 87. Judicial review is concerned with the legality of the process and the jurisdiction of the decision-maker. The Court does not, in these kind of proceedings, determine the ultimate proprietary rights of the parties. 88. The Court of Appeal in Municipal Council of Mombasa v Republic; Umoja Consultants Ltd (Interested Party) [2002] KECA 8 (KLR) emphasized this distinction, holding that judicial review is concerned with the decisionmaking process rather than an appeal on the merits. 89. The distinction is particularly important in the present matter. Whether the 2nd Respondent obtained good title in 2000 or 2015; whether the land was properly allocated by the defunct Olkejuado County Council; whether the Embolioi Group Ranch had a legal successor; and whether the Ex-Parte __________________________________________________________________ JUDGMENTS ELCJR E014/2025 37

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Applicants possess a substantive proprietary or beneficial interest are matters which require determination in the appropriate substantive proceedings. 90. This Court therefore makes no determination on the validity or otherwise of the 2nd Respondent's title. Neither does it determine whether the Ex-Parte Applicants were substantively entitled to lodge the cautions. Those questions remain open for determination by the court seized of the substantive land dispute. 91. In the result, I find that the Ex-Parte Applicants have established sufficient grounds for the intervention of this Court by way of certiorari. Accordingly, the Court makes the following orders: a) An order of certiorari is hereby issued bringing into this Court and quashing the orders and consequential determination made by the 1st Respondent on 2nd July 2025 in Kajiado Miscellaneous Application No. E014 of 2025, Philip Sironka Ole Lemitei v District Land Registrar, Kajiado Lands Registry & Deputy County Commissioner, Isinya SubCounty. b) The consequential actions taken solely pursuant to the impugned orders of 2nd July 2025 are hereby set aside to the extent that they derive their legal efficacy solely from the said quashed orders. c) The prayer for prohibition is declined, prohibition being a prospective remedy which cannot quash decisions already made. __________________________________________________________________ JUDGMENTS ELCJR E014/2025 38

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d) Each party shall bear its own costs, having regard to the nature of the dispute and the fact that the proceedings raise questions concerning the exercise of public and judicial power over land administration. Orders accordingly. Dated Signed and Delivered Virtually this 24th Day of September 2026. M.D. MWANGI JUDGE In the virtual presence of: Mr. Mwangi K. for the Ex Parte Applicants Mr. Kipkirui for the 2nd Respondent Ms. Chimau for 1st, 3rd and 4th Respondents N/A by the Interested Parties Court Assistant: Alex M.D. MWANGI JUDGE __________________________________________________________________ JUDGMENTS ELCJR E014/2025 39

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