Ireri & another v Deputy County Commissioner, Chuka Sub County & 3 others

1. The applicants initiated this suit through an Amended notice of motion dated 18th February 2026 seeking for the following reliefs against the respondents: 1) An order of certiorari to remove into the court and quash the 1st respondent’s decision given in the ruling dated 28th April 2025 in respect of Appeal number 225 of 2019 over property known as land parcel number 881 between the applicant and the interested party and appeal No.170 of 2024 over property known as land parcel No. 357; 2) An order of prohibition directed to the 1 st respondent and 2nd interested party, their officers and any other person/authority acting on their instructions from placing reliance and or acting upon the 1st respondent’s decision given in the ruling dated 28th April 2025 in respect of appeal no. 225 of 2019 over property known as land parcel number 881 between the applicant and the 1st interested party and ELC JUDICIAL REVIEW NO. E004 OF 2025 2

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appeal No. 170 of 2024 over property known as land parcel No. 357; 3) That this court allows appeal number 225 of 2019 over property known as land parcel number 881 between the applicant and the interested party; 4) That this court to disallow and or dismiss appeal No.170 interested party of 2024 and between the the applicants 1 st over property known as 357 and; 5) That the costs of this application be provided for. 2. The amended motion was brought under Section 3A of the Civil procedure Act, CAP 21 of the Laws of Kenya, Order 53 Rules 1(1), (2) and 4 of the Civil Procedure Rules, 2010, Section 8(2) and 9 of the Law Reforms Act, CAP 26 of the Laws of Kenya, the Land Adjudication Act, CAP 284 of the Laws of Kenya and all enabling provisions of the law 3. The 2nd interested party filed a notice of preliminary objection dated 23th April 2026, through which he objects to this suit and invites the court to dismiss the suit in limine on grounds that ELC JUDICIAL REVIEW NO. E004 OF 2025 3

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the amended notice of motion is defective and bad in law for being in violation of Section 9 (2) and (3) of the Law Reform Act and Order 53 Rules 2 and 3 of the Civil Procedure Rules. 4. In verbatim, the 2nd interested party cited the following grounds; “1) No leave was sought and/or granted to the 2nd applicant to institute Judicial Review proceedings. 2) No leave was sought and/or granted to the applicants to challenge the Minister’s decision in Appeal No. 170 of 2024. 3) The claim against the 2nd interested party was instituted outside the period stipulated by both statute and rules of procedure. 5. The preliminary objection was canvassed through written submissions dated 28th May 2026 filed by M/s Basilio Gitonga, Murithi & Associates. The applicants filed their submissions dated 8th May 2026 through the firm of M/s ELC JUDICIAL REVIEW NO. E004 OF 2025 4

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Kwame Shago & Company Advocates in opposition to the preliminary objection. B. ISSUES FOR DETERMINATION 6. Four (4) critical issues in my view, stand for determination; 1) Was leave sought and granted to the 2 nd applicant to institute the instant judicial review proceedings; 2) Was the 2nd interested party claim instituted outside the stipulated period by both statutes. 3) Does the preliminary objection hold merit? 4) Who should bear the costs of the proceedings, if at all? C. ANALYSIS AND DETERMINATION 7. Before delving into the issues at hand, it is critical for the court to define what a preliminary objection is for context. 8. In the celebrated case of Mukisa Biscuits Manufacturing Co. Ltd=Versus=West End Distributors Ltd (1969) EA 696 Sir Charles Newbold, JA opined that; - ELC JUDICIAL REVIEW NO. E004 OF 2025 5

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“So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 9. Additionally, Newbold, JA quipped; “A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.” 18. From the foregoing description, it is clear that; ELC JUDICIAL REVIEW NO. E004 OF 2025 6

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a) A preliminary objection is raised on a pure point of law, and not of fact. b) A preliminary objection cannot be raised where a fact has to be ascertained and/or judicial discretion applied. c) Where evidence has to be adduced, to ascertain and/or prove a fact in issue, then automatically, it ceases from being a preliminary objection. 19. In the present proceedings, two grounds have been cited proposing that the proceedings before court are in total breach of the basic statutory provisions, hence cannot be sustained. 20. To therefore weigh on whether or not, the objections bear merit, I shall sequentially consider the grounds itemised on the notice as follows; 1) On whether leave was granted to the 2 nd applicant to institute this suit; 21. It is clear from the chamber summons filed, that Alexander Njeru Ireri sought leave to commence these proceedings and this court (Eboso J) granted, in terms of prayer (ii) (a) and (b). ELC JUDICIAL REVIEW NO. E004 OF 2025 7

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22. At the time leave was sought, the 2nd applicant was not a party to these proceedings, until he was introduced by the amended motion of 18th February 2026. 23. The purpose of leave under Order 53 of the Civil Procedure Rules was explained by Waki J. (as he was then) in Republic v County Council of Kwale & another ex-parte Kondo & 57 others HCMCA No. 384 of 1996 as follows: “The purpose of application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the Court is satisfied that there is a case fit for further consideration. Leave may only be granted, therefore, if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant, the test being whether there is a case fit for further investigations at a full inter parties hearing of the substantive application for judicial review. It is an ELC JUDICIAL REVIEW NO. E004 OF 2025 8

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exercise of the court’s discretion but as always it has to be exercised judicially.” 24. The plea for leave targets the decision in an appeal number 225 of 2019 over parcel no.881 between the applicant and the 1st interested party and not the Minister’s decision in Appeal No.170 of 2024. 25. Indeed, I have re-evaluated the record and note that on 26th November 2025, Mr. shisanya, appearing for the applicant, sought leave from court to amend the motion and join Eliazer Njue. Eliazer Njue is the 2nd interested party, and not the 2nd applicant. 26. On that account, I therefore agree with the 2nd interested party’s observations that, there was no leave sought by the 2nd applicant, to institute these proceedings, as required by law and statute 2) Was the 2nd interested party claim instituted outside the timelines issued by court? ELC JUDICIAL REVIEW NO. E004 OF 2025 9

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27. The 2nd interested party submitted that the leave to amend the Notice of Motion granted on 26th November 2025 was valid for only ten days. The amended application was filed on 18.2.2026. This was obviously out of the extended time frame issued by court. 28. Further, the 2nd interested party submitted that the six (6) months statutory period required for such proceedings to be instituted, lapsed on 27th October 2025 and thus any joinder out of these timelines is invalid. 29. Indeed, I have considered this argument and I am in agreement that as at the time the 2 nd interested party was enjoined into these proceedings, the six-month statutory period had already lapsed. 30. To put this argument in context, the court was moved and exercised jurisdiction under Order 53 of the Civil Procedure Rules. Order 53 rule 3(1) of the Civil Procedure Rules provides the following framework on timelines for filing a substantive motion: “When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within twenty-one ELC JUDICIAL REVIEW NO. E004 OF 2025 10

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days by notice of motion to the High Court, and there shall, unless the judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for the hearing.” 31. The mandatory requirement of filing the substantive Notice of Motion within twenty-one days from the date of grant of leave was emphasized by the Court of Appeal in Wilson Osolo v John Ojiambo Ochola & another [1996] eKLR as follows: “It was a mandatory requirement of Order 53 rule 3(1) of Civil Procedure Rules then (and it is now again so) that the notice of motion must be filed within 21 days of grant of such leave. No such notice of motion having been apparently filed within 21 days of 15th February, 1982 there was no proper application before the Superior Court. This period of 21 days could have been extended by a reasonable period had there been an application under Order 49 of the Civil Procedure Rules. There was no such application save the one dated 28th April, 1994. ELC JUDICIAL REVIEW NO. E004 OF 2025 11

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That came too late in the day in any event and the learned judge erred in even considering the extension of time some 12 years after the event.” 32. It is clear from the submissions of counsel for the 2nd interested party that the above timelines were not adhered to. Secondly, it is clear from the order that was issued by the court that upon expiry of the five days [reckoned from 21st October 2025], the leave that was granted in this cause lapsed. 33. The leave having lapsed on 26th October 2025, there was no leave upon which to anchor the substantive motion that was filed on 18th February 2026 as expected and required by Order 53 of the Civil Procedure Rules. 3) Is the preliminary objection merited? 34. From the foregoing analysis and definition of a preliminary objection as offered in the case of Mukhisa biscuit, it is apparent that the amended Notice of Motion before court, dated 18th February 2026 and the resultant proceedings arising from the same are in breach of the basic provisions of statute that legitimizes its institution. ELC JUDICIAL REVIEW NO. E004 OF 2025 12

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35. The amended motion violates the strict provisions of Section 9(2) and (3) of the Law Reform Act, and Order 53 Rules 2 and 3 that legitimizes the proceedings before court. Without complying to these provisions, it behooves this court to find that indeed the preliminary objection is merited, as it raises pure points of law that cannot be assumed and/or ignored. 36. The result of these findings therefore is that the preliminary objection raised is found to bear merit, and the amended notice of motion dated 18th February 2026 is found to be defective, bad in law and unsustainable 37. The consequence of this finding is that, the preliminary objection raised, dated 23rd April 2026 is indeed upheld and the amended Notice of Motion stand struck out in limine for want of leave. 4) Who bears the costs of the preliminary objection? 38. The general principle on costs is that costs follow the event. Though the amended notice of motion is struck out, the original motion remains in situ, axing out the 2nd interested party. ELC JUDICIAL REVIEW NO. E004 OF 2025 13

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39. By virtue of this ruling and considering the success of the preliminary objection moved by the 2nd interested party, it would only be just if costs are awarded in their favour. 40. Thus, it is my finding that the preliminary objection succeeds with costs to be borne by the applicants herein. 41. It is so ordered. RULING IS DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT CHUKA THIS 30 TH JULY 2026. L.T. LEWA JUDGE IN THE PRESENCE OF: 1. Court Assistant – Nelly 2. Applicant – Mr. Kirui 3. Respondents - Absent 4. Interested parties - Absent ELC JUDICIAL REVIEW NO. E004 OF 2025 14

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