Holiday Resort Development Company Limited v District Land Registrar, Kwale & 2 Others; Nassir Salmin Omar (Intended Interested Party)

2025 filed by Nassir Salmin Omar, the Intended Interested Party/Applicant herein. It was brought under the provisions of Article 40 of the Constitution of Kenya, 2010, together with Sections 1A, 1B, and 3A of the Civil Procedure Act, Cap. 21, Order 1 Rule 10 (2), Order 51 of the Civil Procedure Rules, 2010, and all other enabling provisions of the law. The Applicant sought, “inter alia”, orders for joinder as an interested party, setting aside of the ruling scheduled for 25 th November, 2025, and leave to file responses and other relevant documents. 2. The Intended Interested Party relied on his Supporting Affidavit sworn at Mombasa on 20 th November, 2025, annexing succession orders deriving his legal mandate as the duly appointed Legal Administrator of the estate of Asha Nassir Omar (Hereinafter referred to as The Deceased”). 3. Upon service of the said application by the Intended Interested Party, the Applicant/Respondent vigorously opposed it through the filing of the following pleadings:a) the Grounds of Opposition dated 17 th December, 2025 filed by Holiday Resort Development Company Limited, the Applicant/Respondent, challenging the competence of the Intended Interested Party’s application. Basically, the grounds RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 2 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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were anchored on the assertion that it was incurably defective, breached “the Doctrine of Res judicata”, and an abuse of the court process. It asserted that the Judicial Review Court lacks jurisdiction to entertain factual disputes relating to ownership of land as it were thereof. b) the Replying Affidavit sworn on 17th December, 2025 by Nzambu Mwendwa, a Director of Holiday Resort Development Company Limited. It has reiterated the assertion that the Intended Interested Party’s claim to all that parcel of land known as Land Reference Numbers Kwale/Diani/182 (Hereinafter referred to as “The Suit Land”) was previously litigated in the Civil case – “HCCC No. 41 of 2010 (later ELC No. 24 of 2018)”, and subsequently dismissed for want of prosecution. Hence, it was the contention by the Respondent herein, therefore the suit was extinguished pursuant to the provision of Section 7 of the Civil Procedure Act, Cap. 21 which governs the doctrine of res judicata. 4. The parties thereafter responded comprehensively by way of written submissions filed on record. This ruling therefore addresses the merits of the Intended Interested Party’s motion RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 3 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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for joinder, the Grounds of Opposition and the Replying Affidavit filed herein. II. The case by the Intended Interested Party/Applicant a) The Intended Interested Party/Applicant sought the following orders: b) Spent. c) That the intended interested party be joined in the suit as an interested party. d) That upon grant of prayer b above the Honorable Court to set aside the ruling to be delivered in 25th November, 2025. e) That upon grant of prayer C above that the interested party be granted leave to file his response and other relevant documents in compliance with the Civil Procedure Rules 2010. 5. The application was premised on the grounds, facts and testimony on the face of the application and further supported by the 10 Paragraphed annexed affidavit of NASSIR SALMIN OMAR, the Intended Interested Party Herein and the Administrator of the estate of Asha Nassir Omar herein. The Affiant averred as follows that:a) He was the duly appointed Administrator of all that estate herein and hence competent to swear the affidavit. b) The Applicant, Nassir Salmin Omar, had filed “Succession Cause E034 of 2023 in the Kadhi’s Court at Mombasa”, which succession cause involved the Estate of Aisha Omar alias Asha RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 4 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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S. Nassir Omar - the deceased. Annexed and marked as “NSO – 1” was an order of the same. c) The estate of the deceased comprised, among others, the suit land. d) That the Grant Letters of Administration intestate of all the estate of Aisha Omar alias Asha S. Nassir Omar (deceased) were vested on Nassir Salmin Omar on 8 th July, 2025 and an order issued on 21st July, 2025. Annexed and marked as “NSO – 2” was a copy of the said order. e) The Applicant/Respondent, Holiday Resort Development Company Limited, had filed at “the High Court in Nairobi Judicial Review Misc. Application E033 of 2025 ” involving the suit land, seeking orders barring the 1 st and 2nd Respondents herein from reconstructing a Green card in respect to the property in favour of third parties. f) By a ruling delivered on 11th February, 2025, the Court had ordered that the Applicant herein be served with the pleadings in Nairobi High Court Judicial Review No. E033 of 2025. Annexed and marked as “NSO – 3” was a copy of the said ruling. RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 5 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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g) Subsequently, via a notice of withdrawal dated 10 th March, 2025, the Judicial Review application was withdrawn. Annexed and marked as “NSO – 4” was a copy of the order of withdrawal. h) During a visit at the Lands Office, Kwale, for purposes of registering the grant, he learnt of the current suit. i) He had never been served with the pleadings in the matter and that it was imperative that the intended interested party be joined in the suit. j) It was imperative that the Court exercised its untrammeled discretion to allow the application and make orders necessary for the ends of justice and preserve the intended interested party’s protection of the right to property as outlined in the provision of Article 40(1) of the Constitution of Kenya, 2010. III. The Grounds of opposition 6. The Applicant/Respondent raised a 20 Paragraphed Grounds of opposition dated 17th December, 2025. It opposed the Intended Party’s Notice of Motion and sought to have it entirely dismissed based on the following grounds:a) The Intended Interested Party’s Application was incurably and fatally defective both in form and substance. RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 6 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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b) The Applicant suit in these Judicial Review proceedings concern the determination of whether the Applicant's Constitutional rights, rights under the Fair Administration Act and the Law in general were infringed upon by the cited administrative acts and/or omissions of the Respondents. c) The issues for determination in these proceedings were whether the Respondents acted lawfully, fairly and procedurally under the Law in the course of their administrative duties. The joinder of the intended interested party never assisted in resolving these legal questions and would instead divert this Honourable Court's attention and waste time hearing irrelevant factual disputes that have nothing to do with the disclosed cause of action. d) The Intended Interested Party was not the administrative body or bodies mandated to dispense fair administrative action and is ill equipped and incapable of defending or justifying any of the alleged illegal, acts and/or omissions. RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 7 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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e) The sole responsibility and culpability of the said administrative actions and/or omissions rested squarely on the Respondents. f) The Judicial review proceedings concerned the legality of the impugned administrative action and not factual disputes between private parties. g) The intended interested party never met the criteria necessary to be admitted as an Interested Party in these proceedings. h) This Honourable Court constituted as a Judicial Review Court lacked the necessary jurisdiction to hear, address and/or entertain the Intended Interested Party's issues. i) The Intended Interested Party’s issues (if any) could only be addressed in a land matter constituted before a Court of competent jurisdiction. j) The indeed the Intended Interested Party’s issues were the subject matter of the Civil Case “ HCCC. No. 41 of 2010” where the said Asha Nassir Omar was unable to establish any genuine claim to the Suit Property. RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 8 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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k) The issues raised by the Intended Interested Party are Res Judicata, being the same issues that were the subject matter of “HCCC. No. 41 of 2010”. l) The Intended Interested Party raised a claim to the Property as an Administrator of the Estate of Asha Nassir Omar (deceased). This was a blatant and mischievous attempt to wrongfully revive and re - litigate her previous unsuccessful claim to the Suit Property. How could the Administrator, in Judicial Review proceedings, claim a better right to the Suit Property than the deceased? m) The Court was “functus officio“ in respect of the matters raised by the Intended Interested Party. n) The Intended Interested Party’s Application was frivolous, vexatious and an abuse of the Court process. o) The Intended Interested Party’s Application could only delay the fair, expeditious, hearing and determination of the issues raised by the Applicant in the Suit. p) The Applicant was extremely prejudiced by the Intended Party’s Application Honourable Court which sought to distract this from determining whether the Respondents ought to be estopped from perpetuating RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 9 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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their illegal acts and omissions threatening the Applicant’s ownership of the Suit Property. q) No prejudice shall be occasioned to the Intended Interested Party noting that the said Asha Nassir Omar had been accorded an opportunity to pursue her claim in the Suit Property and failed to establish any interest thereon. r) The intended interested party had further failed to identify any specific stake in the proceedings, had not demonstrated any prejudice he would suffer in the event of non-joinder, and has not shown how his participation would assist this Honourable Court determine the current issues before it. s) There was no requirement and it would have been an exercise in futility for the Applicant to serve the Interested Party with proceedings in E033 of 2025 which the Applicant withdrew after realization that the High Court may lack the necessary jurisdiction to hear and determine the matter as pointed out by the Court itself. RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 10 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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t) The Intended Interested Party's Application was without merit. Hence, it was undeserving of the discretion of this Honourable Court. 7. The Applicant prayed that the Application be dismissed with costs. IV. The Replying Affidavit by the Applicant 8. As indicated, additionally, the Applicant responded to the Application by the Intended Interested Party through a 28 Paragraphed Replying Affidavit sworn by NZAMBU MWENDWA, a Director of Holiday Resort Development Company Limited, the Applicant, sworn on 17th December, 2025. The Affiant averred as follows: a) He was well conversant with the facts in the matter and was therefore competent to swear the affidavit. b) He had read and understood the contents of the Notice of Motion application dated 20th November, 2025, together with the Supporting Affidavit sworn by Nassir Salmin Omar at Mombasa on 20th November, 2025 and all annexures therein. c) In respect of the facts concerning the case, he wished to adopt the Supporting Affidavit of his Co - Director, Francis RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 11 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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Mburu, sworn on 25th February, 2025 together with all the annexures, save for a correction of a typographical error under Paragraph 2 where the Suit Property referred to should read Kwale/Diani/182. Annexed and marked as “NM - 1” was a true copy of the said Supporting Affidavit and annexures. d) He wished to highlight the following points contained in the said Supporting Affidavit:(a) He averred that it was evident the Applicant had conducted thorough and exhaustive due diligence prior to the acquisition of the property. (b) It was also evident that at the time of purchase and acquisition by the Applicant, the property was in the full possession and control of the previous proprietor, Halfani Juma Mwamtunza, who handed over vacant possession to the Applicant, who proceeded to develop the property and had been in continuous, uninterrupted possession of the same for over fourteen years. (c) The property was charged in favour of Jamii Bora Bank (now Kingdom Bank) to secure facilities of a RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 12 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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sum of Kenya Shillings Eighty Five Million Five Hundred Thousand (Kshs. 85,500,000/=) granted to the Applicant, which implied that the illegal acts and omissions of the Respondents had an adverse effect on the Bank’s interests and were prejudicial to such third-party interests. (d) The dispute or issues now raised by the Intended Interested Party and the alleged claim to the Suit Property were not new, as this had been the central and main issue in HCCC No. 41 of 2010, Mombasa, filed by Asha S. Nassir Omar challenging the Applicant’s ownership of the property. (e) In the said suit, the Applicant, the 1st Respondent, the predecessor of the 2nd Respondent (the Commissioner of Lands), and the 3rd Respondent had been enjoined as Co - Defendants. (f) In the aforesaid suit, the Honourable Court had determined that the Intended Interested Party, acting on behalf of the estate of Asha S. Nassir Omar, was unable to establish “a prima facie case” and also found that the only remedy (if any) available was a RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 13 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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claim for damages. The main suit was subsequently dismissed for want of prosecution. e) Accordingly, he was advised that the issues raised by the Intended Interested Party, in so far as they concerned the ownership of the Suit Property, were res judicata, and that the Intended Interested Party was estopped from raising the same issues that had been the subject matter in HCCC No. 41 of 2010 (subsequently ELC No. 24 of 2018). f) These Judicial Review proceedings concerned the illegal and inconsistent acts of: (a) The 1st Respondent in publishing a Gazette Notice dated 30th August, 2024 displaying its intention to reconstruct the Green Card/Register in respect of the Suit Property in favour of third parties, namely Nassir Salmin Omar, Ali Omar Salmin, and Salma Samin Omar. (b) The 2nd Respondent in writing a letter dated 29 th August, 2024 alleging that the Applicant had acquired the Suit Property fraudulently and that the property ought to be registered in favour of a third party, namely one Donald Ndawiro Masanju. RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 14 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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g) The Applicant’s grievance was that the above illegal acts by the 1st and 2nd Respondents had been conducted without notice to the Applicant, without any due process, without according the Applicant a fair hearing, and in total ignorance and disregard of the Applicant’s proprietary rights in the Suit Property. h) He was advised by the Applicant’s Advocates, which information he verily believed to be true, that the acts or omissions of the 1st and 2nd Respondents were strictly within the ambit of their duties as public officers and their duty to carry out such duties within the confines of the law. i) The 2nd Respondent’s actions were illegal, ultra vires, and amounted to serious, false, unwarranted, one-sided and unjustifiable allegations implying criminal culpability on the part of the Applicant without even summoning the Applicant to hear their side of the story, thereby standing as the proverbial accuser, judge, and jury. Furthermore, the action was an attempt to confer ownership of the Suit Property to a third party, who was a stranger to the RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 15 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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Applicant and had never laid any claim to the property over the past fifteen years since the Applicant acquired it. j) The 1st Respondent’s actions were extremely wanting. In the absence of any notice to or knowledge of the Applicant owner, they had proceeded to initiate a process of reconstructing a Green Card in favour of third parties, despite holding records for the last fifteen (15) years establishing the Applicant as the registered proprietor of the Suit Property, despite facilitating the registration of a Charge in favour of Kingdom Bank, and despite being a party to the proceedings in HCCC No. 41 of 2010 where the intended beneficiaries of the threatened reconstruction had failed to establish any legitimate claim over the Suit Property. k) These Judicial Review proceedings invited the Honourable Court to examine the acts and omissions of the 1 st and 2nd Respondents complained of and determine whether the same were legal and within the law. He stated that it was his firm view that the Intended Interested Party lacked the locus standi and capacity to defend, justify, or in any other way contribute to the question before the Honourable RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 16 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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Court, namely the legitimacy, legality, or otherwise of the 1st and 2nd Respondents’ actions. l) He was advised by the Applicant’s Advocates, which information he verily believed to be true, that the Intended Interested Party did not qualify or meet the criteria necessary to be admitted as an Interested Party, noting that in addition to the averments above, any alleged claim to the Suit Property by the Intended Interested Party and his predecessors had been extinguished upon the case being dismissed way back in the year 2022. m) It was strange, but it suspiciously appeared that the Intended Interested Party, whose predecessors had instituted court proceedings but failed to establish any legitimate interest in the Suit Property, was through the back door attempting to illegally acquire title to the property through the offices of the 1st Respondent, who unfortunately, by publishing the said Gazette Notice, had intentionally, recklessly, and/or negligently proceeded to aid such illegal enterprise. n) It was clear that the Intended Interested Party’s attempt to be enjoined in these proceedings was a mischievous, RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 17 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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belated, and futile attempt to revive and re - litigate the dispute that had once been the subject matter of HCCC No. 41 of 2010. o) He was advised by the Applicant’s Advocates, which information he verily believed to be true, that admitting the Intended Interested Party added no value to these Judicial Review proceedings, noting that the issues before the Honourable Court strictly related to the operations of the 1st and 2nd Respondents in the performance of their public duties and the adverse effects of any such illegality on the Applicant’s rights and interests under the Constitution, the Fair Administrative Action Act, and other laws. p) On the 25th February, 2025, the Applicant/Respondent had instituted Judicial Review proceedings by way of an Originating Motion seeking orders of Certiorari, Prohibition, and Mandamus against the 1st and 2nd Respondents on the administrative action of reconstructing a Green Card in favour of the Intended Interested Party and other third parties without affording the Applicant an opportunity to be heard, despite its ownership of the suit land. RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 18 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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q) In specific answer to the averments made in the Applicant’s Notice of Motion application and the Supporting Affidavit, he wished to state as follows:(a) It was completely untrue that the estate of the deceased comprised the Suit Property. (b) The filing of a Succession Cause in respect of Asha Nassir Omar (deceased) did not entitle the Intended Interested Party or any of the other named beneficiaries to property that had not been owned by the deceased in the first place. (c) Any claim by the Intended Interested Party to the Suit Property had been extinguished and was untenable subsequent to the determination of HCCC No. 41 of 2010 (subsequently ELC No. 24 of 2018). (d) The Intended Interested Party was ill - equipped to attempt to revive and re - litigate the dispute through these Judicial Review proceedings, as the Honourable Court, in any event, lacked jurisdiction to hear and determine any such matters. RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 19 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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(e) The Intended Interested Party had no right to protection under the Constitution or any other law, as he had no legitimate claim to the Suit Property. r) With respect to the filing and subsequent withdrawal of Judicial Miscellaneous Review Application No. E033 of 2025, he was advised by the Applicant’s Advocates, which information he verily believed to be true, as follows: (a) It was true the said Advocates had initially filed those proceedings in the High Court, Judicial Review Division, on the basis that the majority of the prayers sought, including Certiorari, Prohibition and Mandamus, fell within the ambit of Judicial Review proceedings. (b) Under the content of Paragraph 4 of the ruling dated 11th February, Interested 2025, Party’s exhibited Supporting in the Intended Affidavit, the Honourable Judge had observed: “On the application itself, I have observed that the same is brought under the Land Registration Act and Land Act and that the prayers sought are those ordinarily sought and granted by the Environment and Land Court. I have brought this jurisdiction issue to the attention of the Advocate for RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 20 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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the ex parte applicant who requests that the issue be canvassed inter partes.” (c) The Court had then proceeded to set the hearing on the issue of jurisdiction on 12th March, 2025. (d) Upon further research, the Advocates had agreed with the trial Judge that the Judicial Review Division might not have jurisdiction to entertain the matter in so far as the subject matter related to land. (e) The Advocates had also discovered that the Environment and Land Court had a Judicial Review Division which was the best-placed Court to hear and determine issues relating to Judicial Review where the subject matter was land. (f) Based on the above, the Advocates had withdrawn the suit filed in the High Court and had simultaneously filed this suit in the ELC Judicial Review Division, Nairobi, which later transferred the case to the Kwale Branch for hearing and determination. (g) Having withdrawn the High Court case, it had been pointless and unnecessary to serve the same upon any proposed party. RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 21 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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s) The Intended Interested Party had not demonstrated how his presence would assist the Court in determining whether the administrative action of the 1 st Respondent was lawful, nor had he shown any prejudice he stood to suffer if not enjoined. t) He verily believed the Intended Interested Party’s joinder would not add value to the determination of this Judicial Review matter but would instead introduce matters unrelated to the legality of the administrative action under challenge. u) The Notice of Motion application therefore lacked merit and ought to be dismissed with costs to the Applicant/Respondent. v) The Intended Interested Party’s intention to re - litigate the very same issues that had been the subject matter in previous proceedings between the same parties was not only res judicata but also an abuse of the court process. w) The Intended Interested Party’s application was bad in law, frivolous, vexatious, and intended to distract and deviate this Honourable Court from hearing and determining the issues properly before it. RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 22 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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x) The admission of the Intended Interested Party would only prejudice the Applicant from having its grievances against the 1st and 2nd Respondents’ unlawful actions heard and determined. y) The admission of the Intended Interested Party would only delay the expeditious hearing and determination of the matter and waste precious judicial time. z) Therefore, he prayed and urged this Honourable Court to dismiss the Intended Interested Party’s application with costs. aa) What was deponed herein was true and correct to the best of his knowledge and belief, save for facts based on information and belief, the source of which had been fully acknowledged. V. 9. Submissions On 21st April, 2026 while all the parties were present in Court, they were directed to have the Notice of Motion application dated 20th November, 2025 be disposed of by way of written submissions. 10. Unfortunately, at the time of penning down this Ruling, the Honourable Court had not been in a position to access the RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 23 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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submissions by the parties neither from the Judiciary CTS Portal nor the ELC Registry. 11. Pursuant thereto, it proceeded to deliver its Ruling on merit on 28th September, 2026 accordingly. VI. Analysis and Determination 12. The Honourable Court has carefully read and considered the Notice of Motion application dated 20 th November, 2025 filed by the Intended Interested Party, Nassir Salmin Omar, the Grounds of Opposition dated 17th December 2025 filed by the Applicant/Respondent, Holiday Resort Development Company Limited, and the Replying Affidavit sworn on 17 th December 2025 by Nzambu Mwendwa. The Court also considered the Supporting Affidavit sworn by Nassir Salmin Omar, together with the annexures thereto, the objections raised by the Applicant/Respondent, the relevant provision of the Constitution of Kenya, 2020 and other statutes. RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 24 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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13. In order to arrive at an informed, fair and reasonable decision, the Court framed the following six ( 6 ) issues for its determination: a) Whether the Intended Interested Party has demonstrated sufficient legal interest and proprietary stake to warrant joinder to these Judicial Review proceedings. b) Whether the Grounds of Opposition dated 17th December 2025 are merited, particularly on the basis of res judicata, functus officio, and the jurisdictional limits of a Judicial Review Court. c) Whether the Replying Affidavit sworn by Nzambu Mwendwa establishes that the Intended Interested Party’s claim is extinguished by prior litigation, including HCCC No. 41 of 2010 (subsequently ELC No. 24 of 2018). d) Whether the Judicial Review Court, in its supervisory jurisdiction, can properly entertain factual disputes relating to ownership of land, or whether such matters fall within the ordinary jurisdiction of the Environment and Land Court. e) Whether the balance of convenience and the overriding objective under Sections 1A and 1B of the Civil Procedure Act, Cap. 21 and Section 3 of the ELC Act, No. 19 of 2011 favour exclusion of the Intended Interested Party to ensure expeditious determination of the legality of the Respondents’ administrative actions. f) Who ought to bear the costs of the application ISSUE No. a). Whether the Intended Interested Party has demonstrated sufficient legal interest and proprietary stake to warrant joinder to these Judicial Review proceedings. 14. Under this sub-title, the main issue here is whether the Intended Interested Party has demonstrated sufficient legal RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 25 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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interest and proprietary stake to warrant joinder to these Judicial Review proceedings. 15. The Court is guided by Order 1 Rule 10(2) of the Civil Procedure Rules, 2010, which empowers the Court to add a party whose presence is necessary to enable it to effectively and completely adjudicate upon and settle all questions involved in the suit. The jurisprudence on joinder has been consistently developed by Kenyan courts. In the case of: “Trusted Society of Human Rights Alliance – Versus - Mumo Matemu & 5 Others [2014] eKLR” , the Supreme Court clarified that an interested party must demonstrate a personal stake, identifiable legal interest, or prejudice that would be suffered if not enjoined. Mere curiosity, general advocacy, or peripheral interest is insufficient. 16. In the present matter, the Intended Interested Party, Nassir Salmin Omar, relies on his position as administrator of the estate of Asha Nassir Omar (deceased), asserting that the estate comprised the suit property - Kwale/Diani/182. He annexed succession orders from the Kadhi’s Court and argued that his joinder was necessary to protect the estate’s proprietary rights under the provision of Article 40 (1) of the Constitution of Kenya, 2010, which guarantees the right to RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 26 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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property. His position is that exclusion from the proceedings would deny the estate an opportunity to safeguard its alleged interest in the property. 17. On the other hand, the Applicant/Respondent, Holiday Resort Development Company Limited, opposed the application, contending that the deceased’s claim to the property had already been litigated in the Civil case of “ HCCC No. 41 of 2010 (later ELC No. 24 of 2018)” , which was dismissed for want of prosecution. The Applicant argued that the Intended Interested Party’s claim was therefore “the doctrine of Res Judicata” under the provision of Section 7 of the Civil Procedure Act, Cap. 21 which bars re-litigation of matters directly and substantially in issue between the same parties. The Applicant further averred that judicial review proceedings are not the proper forum for resolving contested ownership disputes. 18. The Court notes that the Applicant has been in continuous possession of the property for over fourteen years, has developed it extensively, and has charged it to Kingdom Bank for substantial facilities amounting to a sum of Kenya Shillings Eighty Five Million Five Hundred Thousand (Kshs. 85,500,000/=). The Respondents’ impugned actions—publishing RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 27 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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a Gazette Notice and issuing letters alleging fraud—are administrative in nature. The question before this Court is whether those actions were lawful, fair, and procedurally proper. The Intended Interested Party’s claim, however, seeks to reopen the substantive question of ownership, which falls outside the scope of judicial review. 19. On this legal preposition, I seek refugee from the case of:“Francis Karioko Muruatetu & Another – Versus - Republic & 5 Others [2016] eKLR”, the Supreme Court emphasized that an interested party must demonstrate a distinct contribution to the proceedings beyond what the principal parties have already placed before the Court. The Court cautioned against admitting parties whose participation would merely duplicate arguments or introduce collateral disputes. Here, the Intended Interested Party has not shown how his participation would assist the Court in determining the legality of the Respondents’ administrative actions. His claim is essentially a collateral attempt to revive a dispute already determined, and therefore fails the threshold for joinder. 20. The Court also takes guidance from the decision of:- “Judicial Service Commission – Versus - Speaker of the National Assembly RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 28 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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& Another [2013] eKLR”, where it was held that joinder should not be used to expand the scope of proceedings beyond the issues properly before the Court. Judicial review is a special jurisdiction, limited to examining the legality of administrative action, and not intended to adjudicate private property disputes. 21. Accordingly, the Court finds that the Intended Interested Party/Applicant has not demonstrated sufficient legal interest or proprietary stake to warrant joinder to these Judicial Review proceedings. His application is therefore declined. ISSUE No. B). Whether the Grounds of Opposition dated 17th December 2025 are merited, particularly on the basis of res judicata, functus officio, and the jurisdictional limits of a Judicial Review Court. 22. Under this sub-title, the main issue here is whether the Grounds of Opposition dated 17th December, 2025 are merited, particularly on the basis of being in breach of “ the Doctrine of Res Judicata, functus officio” by Court, and the RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 29 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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jurisdictional limits of Applicant/Respondent, a Judicial Holiday Review Resort Court. The Development Company Limited, opposed the Intended Interested Party’s application for joinder, contending that the claim was incurably defective, frivolous, and amounted to an abuse of the court process. The Applicant anchored its opposition on three principal objections, each of which is examined below. 23. The Applicant/ Respondent averred that the Intended Interested Party’s claim to the suit property had already been litigated in the civil case of “HCCC No. 41 of 2010 (later ELC No. 24 of 2018)”, where the deceased, Asha Nassir Omar, challenged the Applicant’s ownership of the suit land - Kwale/Diani/182. That suit was dismissed for want of prosecution after the Court found that no prima facie case had been established. As already raised by parties herein, the substantive law on Res Judicata is found under the provision of Section 7 of the Civil Procedure Act Cap. 21 which provides that: “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 30 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court” 24. The Black’s law Dictionary 10th Edition defines “res judicata” as “An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…” 25. A person may not commence more than one action in respect of the same or a substantially similar cause of action and the Court must attempt to resolve multiple actions involving a party and determine all matters in dispute in an action so as to avoid multiplicity of actions. 26. Kuloba J., in the case of “Njangu – Versus - Wambugu and another Nairobi HCCC No.2340 of 1991 (unreported)” , held that: ‘If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata…..” RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 31 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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27. Similarly, in the Court of Appeal case of “Siri Ram Kaura – Versus – M.J.E. Morgan, CA 71/1960 (1961) EA 462” the then EACA stated that: “The mere discovery of fresh evidence (as distinguished from the development of fresh circumstances) on matters which have been open for controversy in the earlier proceedings is no answer to a defence of res judicata... The law with regard to res judicata is that it is not the case, and it would be intolerable if it were the case, that a party who has been unsuccessful in litigation can be allowed to re-open that litigation merely by saying, that since the former litigation there is another fact going exactly in the same direction with the facts stated before, leading up the same relief which I asked for before, but it being in addition to the facts which I have mentioned, it ought now to be allowed to be the foundation of a new litigation, and I should be allowed to commence a new litigation merely upon the allegation of this additional fact. The only way in which that could possibly be admitted would be if the litigant were prepared to say, I will show that this is a fact which entirely changes, the aspect of the case, and I will show you further that it was not, and could not by reasonable diligence have ascertained by me before ... The point is not whether the respondent was badly advised in bringing the first application prematurely; but whether he has since discovered a fact which entirely changes the aspect of the case and which could not have been discovered with reasonable diligence when he made his first application. RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 32 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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It is therefore not permissible for parties to evade the application of Res judicata by simply conjuring up parties or issues with a view to giving the case a different complexion from the one that was given in the former suit.” 28. Legally speaking, the doctrine of res judicata serves the twin purposes of finality in litigation and protection against vexatious suits. The Court of Appeal in the case of:- “Uhuru Highway Development Limited – Versus - Central Bank of Kenya [1996] eKLR” emphasized that res judicata applies even where parties attempt to reframe issues under different causes of action or procedural devices. This principle prevents parties from fragmenting litigation into multiple suits. 29. In this case, the Intended Interested Party’s attempt to revive the same claim through judicial review proceedings is barred. The ownership dispute was conclusively addressed in earlier proceedings, and the law does not permit its resurrection under the guise of administrative review. 30. On whether the Honourable Court is “ functus officio”, the Applicant further argued that the Court was functus officio in respect of the matters raised by the Intended Interested RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 33 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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Party. “The doctrine of functus officio” was considered by the Court of Appeal in the case of:- “Telkom Kenya limited – Versus - John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya limited) (2014) eKLR”, where the court held that:“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon….. The general rule that final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal in re-St Nazarire Co, (1879), 12 Ch. D 88. The basis for it was that the power to rehear was transferred by the Judicature Acts of the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions. ---” 31. Further, the Supreme Court of Kenya in the case of “Raila Odinga & 2 Others – Versus - Independent Electoral & Boundaries Commission & 3 Others (2013) eKLR” , cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832 which reads; “The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 34 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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vested with adjudicative or decision making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.” 32. It is clear that the doctrine of functus officio does not bar a court from entertaining a case it has already decided but prevents it from revisiting the matter on a merit-based reengagement once final judgment has been entered and a decree issued, as is the case herein. 33. The court also relied on the holding in the case of “Jersey Evening Post Limited – Versus - Al Thani (2002) JLR 542” at 550 to the effect that: “A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available.” RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 35 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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34. Once a court has rendered a final decision, it cannot reopen the matter except under limited circumstances such as review or appeal provided by statute. Here, the ownership dispute having been adjudicated in earlier proceedings, this Court cannot reopen the matter under the guise of judicial review. To do so would undermine the principle of finality and erode confidence in judicial determinations. 35. On the jurisdictional limits of judicial review, the purpose of judicial review was enunciated in the case of “Municipal Council of Mombasa – Versus - Republic Umoja Consultants Ltd, Nairobi Civil Appeal No.185 of 2007(2002) eKLR” , where the Court of Appeal held that:“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 make the decision have the power i.e the jurisdiction to make it. Were the persons affected by the decision heard before it was made. In making the decision, did the decision maker take into account relevant matters or did they 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 decider. Acting as an appeal court over the decider would involve going into the merits of the decision itself - such as whether this was or there was no sufficient evidence to support the RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 36 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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decision and that as we have said, is not the province of Judicial Review”. 36. It is trite law that a court exercising judicial review jurisdiction is only concerned with the procedural propriety of a decision and not the merits. This position was adopted by the court in “Associated Provincial Picture Houses, Ltd. – Versus -Wednesbury Corporation (1947) 2 All E.R 680” . As a result, it is only in exceptional circumstances that the court can consider merits of a decision. These exceptional circumstances were enumerated by the learned Mumbi Ngugi J in the case of:- “Republic – Versus - Public Procurement Administrative Review Board & 2 others Ex Parte - Sanitam Services (E.A) Limited (2013) eKLR” , while citing the “Associated Provincial Picture Houses Ltd. – Versus - Wednesbury Corporation (supra)” namely: “where the administrative body has acted outside its jurisdiction, has taken into account matters it ought not to have taken into account, or failed to take into account matters it ought to have taken into account; or that it has made a decision that is ‘so unreasonable that no reasonable authority could ever come to it.” 37. I have previously in this Court in the case of “Zarry – Versus - Land Registrar, Kwale & another (Environment and Land RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 37 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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Judicial Review Case E013 of 2025) [2026] KEELC 3916 (KLR) (17 June 2026) (Judgment)”, opined that:“Nonetheless, it is important to appreciate the meaning of Judicial Review. The concept is based on the fact that administrative excesses must be checked through Judicial intervention. offices or Administrative law relates to decision of 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. 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 to invalidate legislative and executive actions as being 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”. 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 “The constitutionally justified as a legal control on the misuse of public law powers, including both statutory and common law prerogative powers.” Judicial review establishes the court's authority to hold the government as well as the subordinate courts and RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 38 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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bodies exercising quasi-judicial authority accountable to the law. Michael Fordham in his book “Judicial Review Handbook, 6th Edition, Hart Publishing, 2012”, defines judicial review as:“…. The court’s way of law: that ensuring enforcing public the rule of authorities ‟functions are undertaken according to law and that they are accountable to law. Ensuring, in other words that public bodies are not ‘above the law’” Before the promulgation of the Constitution 2010, judicial review was governed by the principles of common law largely borrowed from the United Kingdom. The jurisdiction to entertain applications for judicial review remedies was vested in the High Court. The basis of judicial review in Kenya was derived from the Law Reform Act (Cap. 26) Laws of Kenya and Order 53 of the Civil Procedure Rules, 2010 as better developed by case law on the area. Sections 8 and 9 of the Law Reform Act provided the substantive basis while Order 53 provided the procedural basis. The remedies in judicial review were three Prerogative Writs, namely; “Certiorari”, “Prohibition” and “Mandamus”. The grounds upon which one could base an application for judicial review were under the heads of illegality, irrationality, procedural impropriety and proportionality. The law in this regard was fairly settled as the High Court in the case of:- “Keroche Industries Limited – Versus Kenya Revenue Authority & 5 Others, Misc. Civ Appli 743 of 2006; (2007) eKLR” had set out what a party needed to demonstrate in order to prove illegality, irrationality, procedural impropriety and proportionality. The Court of Appeal in the case of “Commissioner of Lands – Versus RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 39 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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Kunste Hotel Limited, Civil Appeal No. 234 of 1995; [1997] eKLR” had settled that judicial review was only concerned with the decision-making process. In doing so, the Court was paying homage to the words of Lord Hailsham of St. Marylebone in “Chief Constable of the North Wales Police – Versus - Evans (1982) 1WLR 1155” as follows:“The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized by law to decide for itself a conclusion which is correct in the eyes of the Court.” After the Promulgation of the Kenyan Constitution 2010 Judicial Review was no longer a common law prerogative, but was now entrenched in the Constitution to safeguard the constitutional principles, values and purposes. In particular, the provision of Article 23 (3)(f) provides for the orders of judicial review as one of the available remedies concerning the enforcement of the bill of rights. The provision of Article 47(1) of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 165(6) grants the High Court supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. In the year 2015, Parliament in adherence to Article 47 of the Constitution enacted the Fair Administrative Action Act, No. 4 of 2014, Laws of Kenya (FAA Act). Also instructive to the application of judicial review, is that Article 10 of the Constitution sets out the national values and principles of governance, key among them RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 40 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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being the rule of law. These values and principles bind all State organs, State officers, public officers and all persons whenever any of them applies or interprets this Constitution; enacts, applies or interprets any law; or makes or implements public policy decisions. In the case of:- “Dande & 3 others – Versus - Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8 (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) (16th June, 2023) (Judgment)” the Supreme Court provided as follows:“[76] We note that judicial review was introduced to Kenya from England in 1956 through Sections 8 and 9 of the Law Reform Act, Cap 26. The jurisdiction to hear and determine judicial review was then vested in the High Court of Kenya. Under this system, the High Court could issue orders of mandamus, prohibition, and certiorari. The grounds for the issuance of such orders were borrowed from common law. [77] Prior to the promulgation of the Constitution in 2010 there were two legal foundations for the exercise of the judicial review jurisdiction by the Kenyan Courts found in Sections 8 and 9 of the Law Reform Act Cap. 26, which constituted the substantive basis for judicial review of administrative actions on the one hand, and, Order 53 of the Civil Procedure Rules which was the procedural basis of judicial review of administrative actions, on the other hand. [78] However, the entrenchment of judicial review under the Constitution of Kenya 2010 elevated it to a substantive RULING: JUDICIAL REVIEW NO. E003 OF 2025 and justiciable Page 41 of 63 right under the HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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Constitution. Accordingly, judicial review is no longer a strict administrative law remedy but also a constitutional fundamental right enshrined in the Constitution. Thus, Article 47 provides that “every person has a right to an administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. [79] Furthermore, Section 7 of the Fair Administrative Actions Act provides that: (1) Any person who is aggrieved by an administrative action or decision may apply for review of the administrative action or decision to– (a) a court in accordance with section 8; or (b) a tribunal in exercise of its jurisdiction conferred in that regard under any written law. [80] Fundamentally also, Article 23 (3) of the Constitution provides that: (3) In any proceedings brought under Article 2, a court may grant appropriate relief, including(a) a declaration of rights; (b) an injunction; (c) a conservatory order; (d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24; (e) an order for compensation; and (f) an order of judicial review. RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 42 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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The role of the Court in Judicial Review is supervisory. Judicial Review is the review by a Judge of the High Court of a decision; proposed decision; or refusal to exercise a power of decision to determine whether that decision or action is unauthorized or invalid. It is referred to as supervisory jurisdiction - reflecting the role of the Courts to supervise the exercise of power by those who hold it to ensure that it has been lawfully exercised. In considering the said issues, it is imperative at the outset to delineate the parameters of this Court’s powers in judicial review. Judicial Review currently is concerned with the manner in which a decision is made and the merits or otherwise of the ultimate decision. As long as the processes followed by the decision-maker are proper, without any biasness, capriciousness, fairness, not acted ultra vires, bad faith, favour and the decision is within the confines of the law, a Court will not interfere. Likewise, if the decision is not proper the court will grant the appropriate remedy. As was held in the case of “Republic – Versus - Attorney General & 4 others Ex - Parte Diamond Hashim Lalji and Ahmed Hasham Lalji [2014] eKLR”:“Judicial review applications do not deal with the merits of the case but only with the process. In other words judicial review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters. It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect urges the Court to RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 43 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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determine the merits of two or more different versions presented by the parties the Court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved. Therefore judicial review proceedings are not the proper forum in which the innocence or otherwise of the applicant is to be determined and a party ought not to institute judicial review proceedings with a view to having the Court determine his innocence or otherwise. To do so in my view amounts to abuse of the judicial process. The Court in concerned judicial review proceedings is mainly with the question of fairness to the applicant.......” The broad grounds for the exercise of judicial review jurisdiction were stated in the case of Pastoli – Versus Kabale District Local Government Council (Supra) at pages 303 to 304 thus: “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: See Council of Civil Service Union – Versus - Minister for the Civil Service [1985] AC 2; and also Francis Bahikirwe Muntu and others – Versus - Kyambogo University, High Court, Kampala, miscellaneous application number 643 of 2005 (UR). 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, RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 44 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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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 acceptable and moral standards: Re An Application by Bukoba Gymkhana Club [1963] EA 478 at page 479 paragraph “E”. 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 procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision. (Al-Mehdawi – Versus - Secretary of State for the Home Department [1990] AC 876).” In addition, the parameters of judicial review were addressed by the Court of Appeal in the case of Municipal Council of Mombasa – Versus - Republic & Umoja Consultants Limited, Nairobi Civil Appeal No. 185 of 2001, [2002] eKLR as follows: “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 heard before it was made? In making the decision, did the decision RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 45 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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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 decider; acting as an appeal court over the decider 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.” In the case of “the Dande Case (Supra)” the Supreme Court highlighted that:“[85] It is clear from the above decisions that when a party approaches a court under the provisions of the Constitution then the court ought to carry out a merit review of the case. However, if a party files a suit under the provisions of Order 53 of the Civil Procedure Rules and does not claim any violation of rights or even violation of the Constitution, then the Court can only limit itself to the process and manner in which the decision complained of was reached or action taken and following our decision in SGS Kenya Ltd and not the merits of the decision per se. Broadly, in order to succeed in a Judicial Review proceeding, the applicant will need to show either:“a.the person or body is under a legal duty to act or make a decision in certain way and is unlawfully refusing or failing to do so; or RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 46 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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b. a decision or action that has been taken is 'beyond the powers’ (in latin, ‘ultra vires’) of the person or body responsible for it.” 38. The Intended Interested Party’s claim seeks to reopen factual disputes on ownership of Kwale/ Diana/ 182, which properly fall within the jurisdiction of the Environment and Land Court in its ordinary civil jurisdiction, not in judicial review. Allowing such joinder would impermissibly expand the scope of judicial review beyond its supervisory mandate. 39. The Court is also mindful of the principle in “Owners of Motor Vessel “Lillian S” – Versus - Caltex Oil (Kenya) Ltd [1989] eKLR”, where it was held that jurisdiction is everything, and without it, the Court must down its tools. Judicial review jurisdiction cannot be stretched to accommodate substantive property disputes, as this would amount to acting without jurisdiction. 40. From the pleadings, it is evident that the Intended Interested Party’s application introduces collateral issues that would divert the Court from its supervisory role over the Respondents’ administrative actions. The Applicant has demonstrated that the claim is barred by res judicata, that RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 47 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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the Court is functus officio on the ownership dispute, and that judicial review is not the proper forum for such matters. 41. Accordingly, the Court strongly finds that the Grounds of Opposition dated 17th December, 2025 are merited. The Intended Interested Party’s application is defective, misconceived, and incapable of sustaining joinder in these proceedings. ISSUE No. c). Whether the Replying Affidavit sworn by Nzambu Mwendwa establishes that the Intended Interested Party’s claim is extinguished by prior litigation, including HCCC No. 41 of 2010 (subsequently ELC No. 24 of 2018). 42. Under this sub-title, the main issue here is whether the Replying Affidavit sworn by Nzambu Mwendwa establishes that the Intended Interested Party’s claim is extinguished by prior litigation, including the civil case of “ HCCC No. 41 of 2010 (subsequently ELC No. 24 of 2018). 43. The Replying Affidavit sworn on 17th December, 2025 by Nzambu Mwendwa, a Director of Holiday Resort Development Company Limited, was a comprehensive and meticulously RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 48 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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structured response. It not only adopted the Supporting Affidavit of his Co-Director, Francis Mburu, but also annexed documentary evidence confirming the company’s acquisition, possession, and Kwale/Diani/182. development Nzambu of the Mwendwa suit property emphasized that the Applicant had conducted thorough due diligence prior to purchase, obtained vacant possession from the previous registered proprietor, Halfani Juma Mwamtunza, and had been in uninterrupted occupation for over fourteen years. The affidavit further underscored that the property had been charged to Kingdom Bank to secure facilities of a sum of Kenya Shillings Eighty Five Million Five Hundred Thousand (Kshs. 85,500,000/=), thereby introducing third-party financial interests that would be gravely prejudiced by any attempt to unsettle the Applicant’s ownership. 44. Most critically, Nzambu Mwendwa’s affidavit highlighted that the dispute raised by the Intended Interested Party was not novel. It had been the central issue in HCCC No. 41 of 2010, Mombasa, where the deceased, Asha Nassir Omar, directly challenged the Applicant’s ownership of the property. In that suit, the Applicant, RULING: JUDICIAL REVIEW NO. E003 OF 2025 the District Page 49 of 63 Land Registrar, the HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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Commissioner of Lands, and the Attorney General were all co-defendants. The Court determined that the deceased failed to establish “a prima facie case’ and held that the only possible remedy, if any, was damages. The suit was subsequently dismissed for want of prosecution, thereby conclusively closing the matter. 45. This legal position is fortified by the provision of Section 7 of the Civil Procedure Act, Cap. 21, which codifies the doctrine of res judicata. The provision of the law holds that no court shall try any suit or issue in which the matter directly and substantially in issue has been heard and finally determined by a court of competent jurisdiction. The Court of Appeal in “Uhuru Highway Development Ltd – Versus - Central Bank of Kenya (Supra)” held that res judicata applies even where parties attempt to reframe issues under different causes of action or procedural devices. The Supreme Court in “IEBC – Versus - Maina Kiai & 5 Others [2017] eKLR” further clarified that res judicata extends not only to matters actually litigated but also to those that ought to have been raised in earlier proceedings. 46. The Replying Affidavit therefore establishes that the Intended Interested Party’s claim is extinguished by prior litigation. The RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 50 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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attempt to revive the dispute through judicial review amounts to re-litigation of issues conclusively settled in HCCC No. 41 of 2010 (later ELC No. 24 of 2018). Judicial review jurisdiction, as clarified in “Republic – Versus - Kenya Revenue Authority ex parte Yaya Towers Ltd [2008] eKLR”, is supervisory in nature and does not extend to adjudicating private ownership disputes. The affidavit demonstrates that the Intended Interested Party’s claim is not only barred by res judicata but also falls outside the scope of judicial review. 47. The Court also notes that the Applicant’s reliance on third-party financial interests, particularly the charge registered in favour of Kingdom Bank, underscores the prejudice that would be occasioned if ownership were unsettled. This strengthens the argument that the Intended Interested Party’s claim is not only legally untenable but also practically disruptive to established proprietary and financial arrangements. 48. Accordingly, the Court finds that the Replying Affidavit sworn by Nzambu Mwendwa conclusively demonstrates that the Intended Interested Party’s claim is barred by res judicata and extinguished by prior litigation. The application for joinder, therefore further fails on this ground. RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 51 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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ISSUE No. d). Whether the Judicial Review Court, in its supervisory jurisdiction, can properly entertain factual disputes relating to ownership of land, or whether such matters fall within the ordinary jurisdiction of the Environment and Land Court. 49. Under this sub-title, the main issue here is whether the Judicial Review Court, in its supervisory jurisdiction, can properly entertain factual disputes relating to ownership of land, or whether such matters fall within the ordinary jurisdiction of the Environment and Land Court. Judicial review in Kenya is a specialized jurisdiction anchored in the provision of Articles 47 and 165(6) of the Constitution of Kenya, 2010, and given effect through the Fair Administrative Action Act, 2015. Its primary purpose is to supervise the legality, fairness, and procedural propriety of administrative action. It is not designed to adjudicate substantive disputes over ownership of property, nor to resolve contested private rights. This distinction between supervisory review and substantive adjudication has been consistently emphasized in Kenyan jurisprudence. 50. In the case of:- “Republic – Versus - Kenya Revenue Authority Ex - Parte Yaya Towers Limited (Supra)” , the Court held that judicial review is concerned with the decision-making process, not the RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 52 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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merits of the decision itself. The Court stressed that judicial review does not confer upon the Court the mandate to substitute its own view for that of the decision-maker. Similarly, in the case of:- “Republic – Versus - National Land Commission Ex - Parte Krystalline Salt Limited [2015] eKLR” , the Court reiterated that judicial review does not determine private rights but examines whether public bodies acted within the law, fairly, and within their statutory remit. 51. The Applicant/Respondent argued that the Intended Interested Party’s claim seeks to reopen ownership disputes over the suit land, which were previously litigated in HCCC No. 41 of 2010 (later ELC No. 24 of 2018). Ownership disputes fall squarely within the jurisdiction of the Environment and Land Court (ELC) under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011, which confer jurisdiction to hear and determine disputes relating to title, tenure, boundaries, and ownership of land. The supervisory jurisdiction of judicial review cannot be stretched to accommodate such substantive claims without undermining the constitutional separation of mandates. RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 53 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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52. Recent jurisprudence reinforces this position. In the case of:“Zarry – Versus - Land Registrar, Kwale & Another (Supra)” , the Court held that while judicial review can interrogate the legality of administrative acts by land registrars, it cannot resolve competing claims of ownership, which must be ventilated in ordinary civil proceedings before the ELC. Likewise, in the case of:- “Mathang’u – Versus - Muchiri & 2 Others (ELC JR Case E005 of 2025) [2026] KEELC 3896 (KLR)”, the Court emphasized that judicial review is not a substitute for substantive litigation over property rights, and that parties must pursue ownership claims through the ELC’s civil jurisdiction. 53. The doctrine of jurisdiction, as famously articulated in “Owners of Motor Vessel “Lillian S” – Versus - Caltex Oil (Kenya) Ltd (Supra)”, dictates that jurisdiction is everything, and without it, a court must down its tools. This Court, sitting in its judicial review capacity, cannot arrogate to itself jurisdiction to determine ownership of land. To do so would be ultra vires and contrary to constitutional and statutory limits. The supervisory jurisdiction is limited to examining whether the Respondents acted lawfully, fairly, and procedurally in their administrative functions, not to adjudicate contested proprietary rights. RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 54 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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54. Accordingly, the Court finds that the Judicial Review Court, in its supervisory jurisdiction, cannot properly entertain factual disputes relating to ownership of land. Such matters fall within the ordinary jurisdiction of the Environment and Land Court. The Intended Interested Party’s application for joinder, premised on ownership claims, is therefore misconceived and outside the scope of these proceedings. It cannot succeed. I dare say no more. ISSUE No. E). Whether the balance of convenience and the Overriding Objective under Sections 1A and 1B of the Civil Procedure Act, Cap. 21 and Section 3 of the ELC Act, No. 19 of 2011 favour exclusion of the Intended Interested Party to ensure expeditious determination of the legality of the Respondents’ administrative actions 55. Under this sub-title, the main issue here is whether the balance of convenience and the overriding objective under Sections 1A and 1B of the Civil Procedure Act, Cap. 21 and Section 3 of the ELC Act, No. 19 of 2011 favour the exclusion of the Intended Interested Party to ensure expeditious determination of the legality of the Respondents’ administrative actions. RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 55 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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56. Sections 1A and 1B of the Civil Procedure Act, Cap. 21 and 3 of the ELC Act enshrine the overriding objective of civil procedure, namely to facilitate the just, expeditious, proportionate, and affordable resolution of disputes. Courts are mandated to give effect to this objective by ensuring that proceedings are conducted efficiently, avoiding unnecessary delays, and minimizing costs. The principle was emphasized in the case of:“Abdirahman Abdi – Versus - Safi Petroleum Products Ltd & 6 Others [2011] eKLR”, where the Court of Appeal held that the overriding objective requires courts to actively manage cases to achieve substantive justice without undue delay. The overriding objective is not a mere procedural formality; it is a substantive command that obliges courts to balance fairness with efficiency, ensuring that justice is not only done but done without undue delay or expense. 57. In the present matter, the Applicant/Respondent contends that admitting the Intended Interested Party would derail the judicial review proceedings by introducing collateral ownership disputes. Judicial review is narrowly focused on examining the legality of administrative actions by the 1 st and 2nd Respondents, specifically the publication of a Gazette Notice RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 56 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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and issuance of letters alleging fraud. The Applicant argues that joinder would divert the Court into factual disputes on title, which are properly within the jurisdiction of the Environment and Land Court in its ordinary civil jurisdiction. 58. The Court notes that the Intended Interested Party has not demonstrated how his participation would assist in resolving the central question before the Court—whether the Respondents acted lawfully, fairly, and procedurally. Instead, his claim seeks to reopen ownership disputes already litigated in “ HCCC No. 41 of 2010 (later ELC No. 24 of 2018”. Allowing such joinder would not only expand the scope of judicial review beyond its supervisory mandate but also prejudice the Applicant by delaying resolution of its grievances against the Respondents’ administrative actions. 59. The balance of convenience therefore favours exclusion of the Intended Interested Party. His joinder would introduce delay, increase costs, and distract the Court from its supervisory role. Conversely, no prejudice would be occasioned to him by exclusion, as any proprietary claims can be pursued in the proper forum—the Environment and Land Court’s civil jurisdiction. The Applicant, however, stands to suffer prejudice if RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 57 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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compelled to defend ownership claims in a forum limited to reviewing administrative legality. 60. Accordingly, the Court finds that the balance of convenience and the overriding objective under Sections 1A and 1B of the Civil Procedure Act, Cap. 3 and 3 of the ELC Act favour the exclusion of the Intended Interested Party to ensure expeditious determination of the legality of the Respondents’ administrative actions. ISSUE No. F). Who ought to bear the costs of the Application 61. Under this sub-title, the main issue here is who ought to bear the costs of the Intended Interested Party’s application. It is now well established that the issue of Costs is at the discretion of the Court. Costs mean the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The governing provision is Section 27(1) of the Civil Procedure Act, Cap. 21, which provides: “Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 58 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.” 62. Thus, while the general rule is that costs follow the event, the Court retains discretion to depart from this principle where justice so demands. By the event, it means the result or outcome of the legal action. 63. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR” and “Kenya Union of Commercial, Food and Allied Workers – Versus Bidco Africa Limited & Another [2015] eKLR” , the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of “Hussein Muhumed Sirat – Versus Attorney General & Another [2017] eKLR”, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 64. In the present matter, the Intended Interested Party sought joinder on the basis of alleged proprietary interest in the suit land - Kwale/Diani/182. However, the Court has found that: RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 59 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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a. The claim is barred by res judicata, having been previously litigated in HCCC No. 41 of 2010 (later ELC No. 24 of 2018). b. The Judicial Review Court lacks jurisdiction to entertain ownership disputes, which properly fall within the ordinary jurisdiction of the Environment and Land Court. c. The balance of convenience and the overriding objective under Sections 1A and 1B of the Civil Procedure Act, Cap. 21 and 3 of the ELC Act favour the exclusion of the Intended Interested determination of Party the to legality of ensure expeditious the Respondents’ administrative actions 65. The application for joinder has therefore failed on all substantive grounds. The Applicant/Respondent, Holiday Resort Development Company Limited, was compelled to file Grounds of Opposition and a Replying Affidavit to resist an application that was misconceived and procedurally defective. It would be unjust to burden the Applicant with the costs of defending such an application. 66. The Court also notes that no exceptional circumstances have been demonstrated to warrant departure from the general RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 60 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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principle that costs follow the event. The Intended Interested Party’s attempt to revive extinguished claims amounts to an abuse of the court process, further justifying an award of costs against him. 67. Accordingly, the Court finds that the Intended Interested Party, Nassir Salmin Omar, ought to bear the costs of the application, payable to the Applicant/Respondent. VII. Conclusion and Disposition. 68. Upon causing an indepth analysis of the framed issues herein, the Honourable Court based on the Preponderance of probability and the balance of convenience makes the makes the following findings and orders:a. THAT The Notice of Motion application dated 20 th November, 2025 for joinder be and is hereby dismissed. The Intended Interested Party has failed to demonstrate proprietary sufficient stake to legal warrant interest joinder or to these dated 17 th Judicial Review proceedings. b. THAT the Grounds December, 2025 of are Opposition found to be merited, particularly on the basis of the breach of “the Doctrine of Res Judicata”, ‘functus officio’, by Court and the jurisdictional limits of a Judicial Review Court. RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 61 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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c. THAT the Replying Affidavit Mwendwa conclusively sworn establishes by Nzambu that the Intended Interested Party’s claim is extinguished by prior litigation, including the Civil case of “ HCCC No. 41 of 2010 (subsequently ELC No. 24 of 2018). d. THAT the Judicial Review Court, in its supervisory jurisdiction, cannot properly entertain factual disputes relating to ownership of land, which fall within the ordinary jurisdiction of the Environment and Land Court. e. THAT the balance of convenience and the Overriding Objective under the provision of Sections 1A and 1B of the Civil Procedure Act, Cap. 21 and Section 3 of the ELC Act, No. 19 of 2011 favour the exclusion of the Intended Interested Party to ensure expeditious determination of the legality of the Respondents’ administrative actions. f. THAT pursuant to this and arising from the fore going, the Honourable Court shall proceed to deliver its Judgement on the matter as scheduled on Judgment on 12th November, 2026 accordingly. g. THAT he costs of the application shall be borne by the Intended Interested Party, payable to the Applicant/Respondent. IT IS SO ORDERED ACCORDINGLY. RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS………28 TH …… DAY OF ……SEPTEMBER……..……..2026. ……………………..……………… RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 62 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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HON. MR. JUSTICE L. L. NAIKUNI, ENVIRONMENT AND LAND COURT AT KWALE Ruling delivered in the presence of: (a) Mr. Daniel Disii, the Court Assistant; (b)Mr. Gachanja for the Applicant/Respondent (c) Mr. Nassir Advocate for the Intended Interested Party/Applicant; (d)No appearance for the 1st, 2nd & 3rd Respondents. RULING: JUDICIAL REVIEW NO. E003 OF 2025 Page 63 of 63 HON JUSTICE LL. NAIKUNI (ELC JUDGE)

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