This ruling is in respect of the Applicants Notice of Motion application dated 4th March. 2026 which seeks the following orders:
1. Spent
2. Spent
3. THAT an order of certiorari to remove into this Honourable Court and to quash notice of the Respondent dated 5th February 2026 whereby the Respondent resolved to:
a. Direct the Applicants to vacate the suit properties, remove all structures thereon and cease occupation within (30) days from the date of service of the said notice, failure to which the Respondent would demolish all structures thereon on the suit properties.
4. THAT an order of prohibiting the Respondent from issuing any future notices to vacate the suit properties or to reference the Applicant’s occupation of the same as unlawful without obtaining any order of the Honourable Court issued against the Applicants pursuant to Section 80 of the Land Registration Act.
5. THAT an order of prohibition directing the Respondent from relying upon any report, finding and/or recommendation of any third party, public or private entity without according the Applicants a fair hearing and/or an opportunity to be heard and which report, finding and/or recommendation does not provide reasons and/or rationale or supporting documentation as to how that decision, finding and/or recommendation was arrived at.
6. THAT an order of mandamus directing the Respondent to invite the Applicants to give their public views in respect to the issue of the respective proprietorship of the suit properties, by requesting for submission of the Applicants’ supporting documentation together with all registered owners of the sub-division title holders of former Mombasa/Block XIII/393, within 21 days from the Court’s judgment hereof.
7. THAT the costs of this application be provided for.
The application is supported by the annexed affidavit of Dipak Vyas, the Director of the 2nd Applicant, sworn on 4th March, 2026. He deponed that the 2nd Applicant is the registered proprietor of property Mombasa/Block XIII/394. It was his deposition that the 2nd Applicant leased this property from the Municipal Council of Mombasa from 1st September 1994 to date.
The 2nd Applicant’s director deponed that its property is a sub-division of Mombasa/Block XIII/114. He deponed that on 3rd May, 2012 the 2nd Applicant charged the suit property to the Bank of Baroda and the same was registered. He deponed that the 2nd Applicant company has been paying land rents and rates which were never reflected by the Municipal Council of Mombasa.
The 2nd Applicant’s director further deponed that on 5th February, 2026, he received a letter of even dated titled” notice to vacate land for unlawful occupation and trespass from the Respondent.” He deponed that the issuance of the said notice without according the 2nd Applicant an opportunity to be heard is a breach of its constitutional right to own property and a blatant disregard of principles of fair administration.
Joash Onguko, Officer in charge of Mombasa office of the Respondent filed a Replying Affidavit sworn on 13th May, 2026. He deponed that as the Respondent as the lawfully registered owner of Mombasa/Block XIII/114, it had a lawful, valid and justifiable reason to issue the notices to vacate dated 5th February 2026. He deponed that the Applicants application lacks merit and it is an abuse of the court process.
Jayantilal Mathuradas Kanabar, the 3rd Applicant filed a Further Affidavit dated 4th June, 2026. She asked the Court to grant the orders sought as the Applicants have invested for decades on the suit property.
ANALYSIS AND DETERMINATION
The issue for determination is whether the Applicants are entitled to the judicial review orders against the Respondent as sought. Judicial review is a supervisory jurisdiction concerned with the legality, rationality, and procedural propriety of an administrative action. The Court of Appeal in the case of Municipal Council of Mombasa v. Republic & Umoja Consultants Ltd, Civil Appeal No. 185 of 2001, stated that a court exercising judicial review jurisdiction does not sit as an appellate tribunal; it does not substitute its own decision for that of the decision-maker.
The Applicants have attached a Notice dated 5th February, 2026 to their application which states in part as follows:
TAKE NOTICE THAT you have illegally entered, occupied, and/or constructed structures on the above mentioned land without its consent or any lawful authority.
Your actions constitute trespass to land contrary to Section 152 A of the Land Act, 2012 and Section 24 and 25 of the Land Registration Act, 2012, which vest absolute ownership and rights to the registered proprietor.
NOTICE IS HEREBY GIVEN THAT, Pursuant to Sections 152B, 152C and 152D of Land Act, 2012, you are required to Vacate the said land, remove all structures, and cease occupation within Thirty (30) DAYS from the date of service of this notice.
The 2nd Applicant informed the court that the issuance of the said notice without according him an opportunity to be heard is a breach of its constitutional right to own property and a blatant disregard of principles of fair administration.
Section 152 B of the Land Act provides as follows:
An unlawful occupant of private, community or public land shall be evicted in accordance with this Act.
Section 152 C of the Land Act provides as follows:
The National Land Commission shall cause a decision relating to an eviction from public land to be notified to all affected persons, in writing, by notice in the Gazette and in one newspaper with nationwide circulation and by radio announcement, in a local language, where appropriate, at least three months before the eviction.
Section 152 D of the Land Act provides as follows:
1) The County Executive Committee Member responsible for land matters shall cause a decision relating to an eviction from unregistered community land to be notified to all affected persons, in writing, by notice in the Gazette and in one newspaper with nationwide circulation and by radio announcement, in a local language, where appropriate, at least three months before the eviction.
2) In the case of registered community land, the procedure prescribed in section 152E shall apply.
The officer in charge of the Mombasa office for the Respondent informed this court in it’s replying affidavit dated 13th May, 2026 that the issuance of the notices is only one step among the multi-step eviction process outlined in the law designed to protect human rights and ensure due process. The Respondent herein has also attached a Court order from the High Court of Kenya dated 12th June, 2024 in Civil Suit No 241 of 2011 where Hon. Justice Kizito Magare made several declarations among them that the Respondent is entitled to vacant possession of the suit property being MOMBASA/BLOCK XIII/114. This court notes that this Application, stripped of its judicial review clothing, is in substance an appeal against the decision in Civil Suit No 241 of 2011.
This court takes cognizance that the Respondent in the Notice dated 5th February, 2026 has relied on Section 152 C and D of the Land Act and it therefore ought to follow the procedure laid out therein. Considering this Court is concerned with the legality, rationality, and procedural propriety of the administrative action, I find that the Applicant’s Notice dated 5th February, 2026 is procedurally defective. I therefore issue the following orders:
a. An order of certiorari is hereby issued quashing the notice of the Respondent dated 5th February 2026.
b. Costs are awarded to the Applicants.
1. Spent
2. Spent
3. THAT an order of certiorari to remove into this Honourable Court and to quash notice of the Respondent dated 5th February 2026 whereby the Respondent resolved to:
a. Direct the Applicants to vacate the suit properties, remove all structures thereon and cease occupation within (30) days from the date of service of the said notice, failure to which the Respondent would demolish all structures thereon on the suit properties.
4. THAT an order of prohibiting the Respondent from issuing any future notices to vacate the suit properties or to reference the Applicant’s occupation of the same as unlawful without obtaining any order of the Honourable Court issued against the Applicants pursuant to Section 80 of the Land Registration Act.
5. THAT an order of prohibition directing the Respondent from relying upon any report, finding and/or recommendation of any third party, public or private entity without according the Applicants a fair hearing and/or an opportunity to be heard and which report, finding and/or recommendation does not provide reasons and/or rationale or supporting documentation as to how that decision, finding and/or recommendation was arrived at.
6. THAT an order of mandamus directing the Respondent to invite the Applicants to give their public views in respect to the issue of the respective proprietorship of the suit properties, by requesting for submission of the Applicants’ supporting documentation together with all registered owners of the sub-division title holders of former Mombasa/Block XIII/393, within 21 days from the Court’s judgment hereof.
7. THAT the costs of this application be provided for.
The application is supported by the annexed affidavit of Dipak Vyas, the Director of the 2nd Applicant, sworn on 4th March, 2026. He deponed that the 2nd Applicant is the registered proprietor of property Mombasa/Block XIII/394. It was his deposition that the 2nd Applicant leased this property from the Municipal Council of Mombasa from 1st September 1994 to date.
The 2nd Applicant’s director deponed that its property is a sub-division of Mombasa/Block XIII/114. He deponed that on 3rd May, 2012 the 2nd Applicant charged the suit property to the Bank of Baroda and the same was registered. He deponed that the 2nd Applicant company has been paying land rents and rates which were never reflected by the Municipal Council of Mombasa.
The 2nd Applicant’s director further deponed that on 5th February, 2026, he received a letter of even dated titled” notice to vacate land for unlawful occupation and trespass from the Respondent.” He deponed that the issuance of the said notice without according the 2nd Applicant an opportunity to be heard is a breach of its constitutional right to own property and a blatant disregard of principles of fair administration.
Joash Onguko, Officer in charge of Mombasa office of the Respondent filed a Replying Affidavit sworn on 13th May, 2026. He deponed that as the Respondent as the lawfully registered owner of Mombasa/Block XIII/114, it had a lawful, valid and justifiable reason to issue the notices to vacate dated 5th February 2026. He deponed that the Applicants application lacks merit and it is an abuse of the court process.
Jayantilal Mathuradas Kanabar, the 3rd Applicant filed a Further Affidavit dated 4th June, 2026. She asked the Court to grant the orders sought as the Applicants have invested for decades on the suit property.
ANALYSIS AND DETERMINATION
The issue for determination is whether the Applicants are entitled to the judicial review orders against the Respondent as sought. Judicial review is a supervisory jurisdiction concerned with the legality, rationality, and procedural propriety of an administrative action. The Court of Appeal in the case of Municipal Council of Mombasa v. Republic & Umoja Consultants Ltd, Civil Appeal No. 185 of 2001, stated that a court exercising judicial review jurisdiction does not sit as an appellate tribunal; it does not substitute its own decision for that of the decision-maker.
The Applicants have attached a Notice dated 5th February, 2026 to their application which states in part as follows:
TAKE NOTICE THAT you have illegally entered, occupied, and/or constructed structures on the above mentioned land without its consent or any lawful authority.
Your actions constitute trespass to land contrary to Section 152 A of the Land Act, 2012 and Section 24 and 25 of the Land Registration Act, 2012, which vest absolute ownership and rights to the registered proprietor.
NOTICE IS HEREBY GIVEN THAT, Pursuant to Sections 152B, 152C and 152D of Land Act, 2012, you are required to Vacate the said land, remove all structures, and cease occupation within Thirty (30) DAYS from the date of service of this notice.
The 2nd Applicant informed the court that the issuance of the said notice without according him an opportunity to be heard is a breach of its constitutional right to own property and a blatant disregard of principles of fair administration.
Section 152 B of the Land Act provides as follows:
An unlawful occupant of private, community or public land shall be evicted in accordance with this Act.
Section 152 C of the Land Act provides as follows:
The National Land Commission shall cause a decision relating to an eviction from public land to be notified to all affected persons, in writing, by notice in the Gazette and in one newspaper with nationwide circulation and by radio announcement, in a local language, where appropriate, at least three months before the eviction.
Section 152 D of the Land Act provides as follows:
1) The County Executive Committee Member responsible for land matters shall cause a decision relating to an eviction from unregistered community land to be notified to all affected persons, in writing, by notice in the Gazette and in one newspaper with nationwide circulation and by radio announcement, in a local language, where appropriate, at least three months before the eviction.
2) In the case of registered community land, the procedure prescribed in section 152E shall apply.
The officer in charge of the Mombasa office for the Respondent informed this court in it’s replying affidavit dated 13th May, 2026 that the issuance of the notices is only one step among the multi-step eviction process outlined in the law designed to protect human rights and ensure due process. The Respondent herein has also attached a Court order from the High Court of Kenya dated 12th June, 2024 in Civil Suit No 241 of 2011 where Hon. Justice Kizito Magare made several declarations among them that the Respondent is entitled to vacant possession of the suit property being MOMBASA/BLOCK XIII/114. This court notes that this Application, stripped of its judicial review clothing, is in substance an appeal against the decision in Civil Suit No 241 of 2011.
This court takes cognizance that the Respondent in the Notice dated 5th February, 2026 has relied on Section 152 C and D of the Land Act and it therefore ought to follow the procedure laid out therein. Considering this Court is concerned with the legality, rationality, and procedural propriety of the administrative action, I find that the Applicant’s Notice dated 5th February, 2026 is procedurally defective. I therefore issue the following orders:
a. An order of certiorari is hereby issued quashing the notice of the Respondent dated 5th February 2026.
b. Costs are awarded to the Applicants.