Republic of Kenya in the Matter of a Judicial Review Application by DWA Estate Limited for Orders of Temporary Interdict/Stay and Restraining Orders, Certiorari, Prohibition and Declaratory Orders

RULING 1. The Applicant filed an Originating Motion dated 27 th January, 2026 under various provisions of the Constitution, the Fair Administrative Action Act and the National Land Commission Act. The following reliefs were sought: 1) THAT an order of certiorari be granted to quash and set aside the recommendations in the Gazette Notice published on 17th November, 2025 in respect of the Gazette Notice Vol. CXXVII-No. 230 dated 14th November 2025 in so far as it relates to NLC/HLI/031/2017. 2) THAT an order of prohibition be issued prohibiting the Ministry of Lands, Public Works, Housing & Urban Development and the Ministry of Agriculture & Livestock Development and the Director of Survey from implementing the recommendations in Gazette Notice published on 17th November 2025 in so far as it relates to NLC/HLI/031/2017. 3) THAT a declaratory order that the 1st Respondent’s recommendations in Gazette Notice published on 17 th November 2025 in respect of the Gazette Notice Vol. CXXVII-No. 230 dated 14th November 2025 in so far as it relates to NLC/HLI/031/2017 are unlawful, made in excess of jurisdiction, tainted with illegality for contravening Articles 10(1)(2)(a), 40(1), 40(3), 47(1), 47(2), 21(1), 25(C) and 50(1) of the Constitution, Section 4(3)(a),(b) and 4 of the Fair Administrative Action Act and Section 15(9) of the National Land Commission Act and are consequently null and void. 4) THAT the costs of this application be in the cause. 2. Concurrent to the above application, the Applicant filed a Notice of Motion of even date supported by the affidavit of Grace Kambuni, the Group Company Secretary seeking the following orders: - ELCL JR NO. E001 OF 2026 2|Page

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1) [SPENT] 2) [SPENT] 3) THAT pending hearing and determination of the judicial review proceedings, this Honourable Court issues a stay order and or temporary interdict/conservatory order staying the implementation of the recommendation in the Gazette Notice published on 17th November, 2025 in respect of the Gazette Notice Vol. CXXVII-No. 230 dated 14th November 2025 under NLC/HLI/031/2017. 4) THAT costs of this application be in the cause. 3. The deponent averred that the 5th Respondent filed a historical land injustice claim with the 1st Respondent in NLC/HLI/031/2017 through a letter dated 3rd November, 2014. She added that the Applicant duly filed its defence, witness statement and supporting documents dated 19th September, 2025. That the 5th Respondent’s claim proceeded for hearing on 21 st July, 2024 in the absence of the Applicant and the 1 st Respondent issued its recommendations vide Gazette Notice Vol. CXXVII-No. 230 dated 14th November 2025. 4. Among the recommendation made by the 1 st Respondent were that the land held by the Applicant be resurveyed by the Director of Survey in the presence of Surveyors from the parties to determine the actual acreage and that any excess land beyond the lawfully acquired portion shall be surrendered to the community. It was further recommended that the 1996 assessment conducted by the Ministry of Agriculture, Livestock Development and Marketing shall be investigated jointly by the 2nd and 3rd Respondents to establish whether the community was compensated. That if the findings reveal that no compensation was made, then the Applicant shall be required to pay compensation for the damages accordingly. ELCL JR NO. E001 OF 2026 3|Page

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5. The deponent contended that the Applicant has filed these judicial review proceedings on the basis that the 1 st Respondent lacked jurisdiction to issue the directive that the land be resurveyed and that the excess land be surrendered to the community. That unless the court issues stay orders as sought, the 2nd, 3rd and 4th Respondents will proceed to implement the recommendations. The Applicant further contended that payment of the 1996 Assessment Claim amounts to an illegality and a breach of the rule of law as there is no judgment by the Environment and Land Court and neither was it heard on the said Assessment Claim. 6. The deponent averred that the Applicant is apprehensive that it will lose its property as a result of the 1st Respondent’s determination exposing it to irreparable harm. That the 5 th Respondent’s members will suffer no prejudice if the application is allowed as they are not occupying the Applicant’s land and would still retain their opportunity to be heard in the present proceedings. 7. Opposing the application, the 5th Respondent filed a replying affidavit sworn by the Chairman of the Society, Musumbi Kamia. Affirming that the 5th Respondent had indeed filed a historical land injustice claim with the 1st Respondent, the 5th Respondent alleged that the Applicant was given an opportunity to respond which it did by filing a response to the claim together with witness statements. It was contended that the determination by the 1st Respondent was just, reasonable and within its jurisdiction. 8. The deponent contended that the proceedings herein have been brought outside the time limited under the Fair Administrative Action Rules, 2024. It was further contended that the 1 st Respondent observed the rules of natural justice while acting within the limits of their jurisdiction. 9. The 2nd – 4th Respondents filed amended grounds of opposition dated 14th April, 2026. Opposing both the application and the originating motion, it was contended that the 1 st Respondent has jurisdiction to make recommendations aimed at historical land injustice claims which was properly exercised. ELCL JR NO. E001 OF 2026 4|Page

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10. The 6th Respondent filed a replying affidavit sworn by its Chief Officer, Department of Lands, Urban Planning and Development, Jackson Daudi Charo, on 17th April 2026. Opposing the application, he averred that this court lacks jurisdiction to review the merits and substantial decision of the 1st Respondent when it has been invoked by way of a judicial review application. 11. The 1st Respondent did not file a reply to the application. 12. The application for conservatory orders of stay was canvassed by way of written submissions. 13. In the Applicant’s submissions dated 20 th May, 2026, Counsel submitted on two issues namely: a) Whether the judicial review application is time-barred; and b) Whether the court should issue interim conservatory orders. 14. On the first issue, Counsel submitted that the provisions of Rule 6(1) of the Fair Administrative Action Rules, 2024 were suspended vide an order of Hon. Bahati Mwamuye delivered on 28th March, 2025 in HCCHRPET E168 OF 2025 Katiba Institute vs State Law Office and the Commission on Administrative Justice (Office of the Ombudsman) and Another. Therefore, the argument by the 2nd – 5th Respondents that the proceedings herein are time-barred is unmerited. Furthermore, Counsel asserted that the proceedings herein are premised upon the provisions of the Constitution and therefore not subject to time limitations. 15. Submitting on the next issue, Counsel was of the view that in an interlocutory application for stay orders, the court is not required to delve in substantive issues requiring a detailed analysis. That all the Applicant is required to demonstrate is a prima facie case. That among the issues raised in the substantive originating motion is illegality of the 1st Respondent’s determination which it has been argued was directed at the wrong legal entity. It was further submitted that the Applicant has pleaded that the 1 st Respondent lacked jurisdiction to order that the land be ELCL JR NO. E001 OF 2026 5|Page

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resurveyed and that excess portions be surrendered to the community as per Section 15(9) of the National Land Commission Act. 16. Counsel argued that absent a conservatory order, the substratum of the judicial review proceedings will be destroyed rendering the matter an academic exercise. That the Applicant stands to suffer irreparable harm should it be compelled to pay the alleged “1996 Assessment Claim” as compensation to an unidentified group of persons without its participation or liability being confirmed by this court. Reliance was also placed on the decision of the Court of Appeal in Naftali Ruthi Kinyua v Patrick Thuita Gachure & another [2015] eKLR, to assert the submission that the suit property should not be dealt with in accordance with the doctrine of lis pendens. Counsel urged the court to allow the application as prayed. 17. In the 6th Respondent’s submissions dated 24th June, 2026, Counsel contended that the present proceedings disclose heavily contested issues of fact which require factual interrogation, survey verification and technical ascertainment on the ground. That the scope of judicial review is limited to examining the legality of the decision-making process as opposed to the merits or factual correctness of the impugned decision. Reliance was placed on the decision of the court in Republic v National Environmental Management Authority Ex-parte Sound Equipment Limited [2011] eKLR to buttress the submissions that judicial review proceedings are ill-suited for the determination of contested factual matters. 18. No submissions were placed on the record on behalf of the 5 th Respondent. 19. Two issues for determination arise in this matter to wit: a) Whether the judicial review proceedings are time-barred by virtue of the Fair Administrative Action Rules 2024 b) Whether the Applicants have demonstrated the threshold for issuance of conservatory/stay orders pending the hearing and determination of the Petition; and ELCL JR NO. E001 OF 2026 6|Page

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20. To begin with, the 2nd – 5th Respondent challenged the jurisdiction of this court to hear and determine the judicial review proceedings herein on account of the provisions of Rule 6(1) of the Fair Administrative Action Rules, 2024 which outlines as follows: ‘An applicant intending to apply for the quashing of an administrative action or decision shall commence judicial review proceedings before a court within six weeks after the date the administrative action was taken.’ 21. In swift rejoinder, the Applicant contended that the above provision was suspended vide the orders of the court issued in HCCHRPET E168 OF 2025 Katiba Institute vs State Law Office and the Commission on Administrative Justice (Office of the Ombudsman) and Another. I have had the benefit of perusing the court order dated 28 th March, 2025 which states inter alia as follows:“1. Pending the inter partes hearing and determination of the Petitioner/Applicant’s Notice of Motion Application dated 28/03/2025, a conservatory order be and is hereby issued staying the implementation of Rules 5, 6, 7, 11(4), 27(3), and 33 of the Fair Administrative Action Rules 2024.” 22. I have seen no order reviewing or setting aside the above order issued by Mr. Justice Bahati Mwamuye MBS. In view of the same, this court finds that the judicial review proceedings herein are appropriately filed in accordance with the provisions of Section 7(1) of the Fair Administrative Action Act, 2015. 23. In regards to the second issue, the test for granting the conservatory orders was laid down by the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR. The following excerpt by the learned Judges is especially succinct: - ELCL JR NO. E001 OF 2026 7|Page

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“Conservatory orders” bear a more decided publiclaw connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.” [emphasis added] 24. In Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & another [2016] eKLR Justice G.V. Odunga (as he then was) held as follows: “What then are the circumstances under which the Court grants conservatory orders? It has been held that in considering an application for conservatory orders, the court is not called upon to make any definite finding either of fact or law as that is the province of the court that will ultimately hear the petition. At this stage the applicant is only required to establish a prima facie case with a likelihood of success. Accordingly in determining this application, the Court is not required-indeed it is forbidden- from making definite and conclusive findings on either fact or law. I will therefore refrain from making any determinations whose effect would be to prejudice the hearing of the main Petition. However, apart from establishing a prima facie case, the applicant must further demonstrate that unless the conservatory order is granted there is real danger which may be prejudicial to him or her. See Centre for Rights, Education and Awareness (CREAW) & 7 others vs. The Hon. Attorney General, Nairobi HC Pet. No 16/2011, Muslims for Human Rights (MUHURI) & 2 others vs. The Attorney General & Judicial Service Commission, Mombasa HC Pet. No. 7 of 2011 and V/D Berg Roses Kenya Limited & Another vs. Attorney General & 2 Others [2012] eKLR.” ELCL JR NO. E001 OF 2026 8|Page

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25. The Applicant herein must demonstrate that it has a prima facie case against the Respondents and that in the event the conservatory orders sought are disallowed, they will suffer irreparable injury on the alleged constitutional violations alleged to have occurred, continue or that have been threatened. 26. A prima facie case was defined in Mrao Ltd v First American Bank of Kenya Ltd & 2 Other [2003] eKLR, in the following terms: “a case in which on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 27. The Applicant adduced a copy of the impugned decision delivered by the 1st Respondent and published in the Kenya Gazette Vol. CXXVII 230 of 14th November, 2025. It is the Applicant’s contention that the 1st Respondent acted ultra vires and in excess of its authority in recommending that the suit property be resurveyed and any excess land be surrendered to the community by virtue of Section 15(9) of the National Land Commission Act. It was further contended that the 1st Respondent lacked jurisdiction to deal with environmental matters and therefore erred in making the recommendation in respect of a 1996 assessment report to establish whether the community was compensated. The Applicant further contended that the recommendations made by the 1st Respondent were a nullity having been made against the wrong legal entity, DWA Sisal Estate Limited. 28. Legal proprietorship and actual possession of the suit properties LR No. 11070/4 and LR No. 3685 by the Applicant was not disputed. The Applicant maintained that its farming activities which comprise sisal, seed farming, horticulture and production of biomass energy would expose it to irreparable harm and huge economic losses if the 1st Respondent’s decision is implemented. 29. On the other hand, the Respondents did not address nor satisfy the court on the nature of prejudice that would be occasioned in ELCL JR NO. E001 OF 2026 9|Page

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the event the interlocutory orders sought by the Applicant are allowed. From the material that has been presented, there is conclusive evidence that the Applicant has an arguable case which ought to be determined while the suit properties remain in situ. 30. It is therefore the finding of this court that the Applicant have demonstrated a prima facie case for the issuance of conservatory orders as sought. 31. In the end, the application herein is merited. It is allowed in terms of prayer No. 3. Costs shall abide the outcome of the substantive originating motion. ................................................ HON. E. O. OBAGA, FCIArb JUDGE RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 8TH OCTOBER, 2026. IN THE PRESENCE OF: Mrs. Opiyo for Applicant Mr.Njeru for 2nd Respondent Court Assistants - Jackline and Steve ELCL JR NO. E001 OF 2026 10 | P a g e

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