The application
The interested party, Elizabeth Wanjiru Njoka has filed a Notice of Motion dated 24th October 2025 seeking orders that the Notice of Motion dated 16th March 2022 be struck out and costs be borne by the counsel for the ex-parte applicant. The application is based on grounds that no judge of co-ordinate jurisdiction has power to review, open and set aside a ruling of a judge of coordinate jurisdiction.
That the issue of jurisdiction was held on 26th July 2017 to be of family Division and not of the Environment and Land Court Jurisdiction. The applicant states that the intended parties did not appeal against the decision of Justice Ndung’u and they are bound by it.
That ruling was followed by the ruling of Lady Justice Matheka on 25th January, 2021, in Nakuru High Court Succession Cause No, 497 of 2013 in the matter of the Estate of Phillip Nioka Kamau. The interested parties who are parties to that suit, did not file an appeal to that second ruling. According to the interested party, the object of the other parties is to undertake a forum shopping, remove the adjudication of the suit from the family division and relocate it to this Honorable Court, a phenomenon which this Honorable court does not entertain. In other words, this Honorable court lacks jurisdiction to hear the said Notice of Motion dated 16th March, 2022 and as was held by the Court of Appeal in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd 119891 eKLR, where a court has no jurisdiction, it downs its tools and the said Notice of Motion is for striking out with costs.
The interested party argues that as stated in paragraph 150 of the Halsbury's Laws of England. 4th Edition, where advocates like those of the interested parties file a suit without basis, they will be condemned to pay costs personally, along with their clients and this is a suitable case for costs to be made against the advocates of the interested parties.
The applicant argues that a solicitor may be made personally liable if responsible for costs being incurred improperly or without reasonable cause or wasted by undue delay or other misconduct or default. The applicant concludes that it is in the interest of justice that the application be allowed as prayed.
Responce
In response, the ex-parte applicant filed grounds of opposition stating that the said application is misconceived, vexations, bad in law and intended to infringe and curtail the ex-parte Applicant-Lucy Wanjiru Njoka her constitutional right guaranteed and protected by virtue of Article 50(i) of the Constitution of Kenya 2010 that cannot be limited under Article 25(c) of the Constitution of Kenya 2010 in that Elizabeth Wanjiku Njoka is merely an Interested party enjoined in these proceedings to represent the estate of Alice Kahaki in reference to the subject matter L.R No. Dundori/Lanet Block 5/216 (Kiamunyeki 'A') fraudulently & illegally transferred to one Christine Nyagitha who is not opposing the reversionary of the suit property back to the ex-parte applicant as was determined by the National Land commission determination of 28th January 2019.
There is no evidence or document that the suit property was ever owned and/or was registered in the name of the late Alice Kahaki Njoka and opposition of the order for mandamus by the interested party is malafide and intended to shield her sister Christine Nyagitha Njoka- the Respondent from criminal liability for fraudulent transfer of the ex-applicants suit property as determined by the National Land Commission.
The court should also take judicial Notice that the Respondent in the main notice of Motion, the County Land Registrar has not filed any objection to the application for mandamus and the interested party has no mandate to represent the Respondents.
The exparte applicant contends that if the Estate of Alice Kahaki had any proprietary interest in the suit property, the interested patty should have moved the court and challenged the registration of the suit property currently fraudulently registered in the name of the Respondent-Christine Nyagitha to revert to the estate of Alice Kahaki. It's for the interest of justice that this Honorable court should allow the application for mandamus to proceed to its full trial and all parties to be granted an opportunity to be heard instead of applying shortcuts to serve the interest of the interested party.
On the issue of costs been borne by Advocates for the ex-parte applicant, the exparte applicant contends that her advocates are merely executing mandate of their client hence this would violate Article 50(2) (g) of the constitution of Kenya 2010 and the Principles of Natural Justice as a party has a right to choose advocates to represent her interest without intimidation, fear or favour as officer of the court.
As demonstrated by myriads of application in these proceedings, the Interested party is a vexatious litigant, will never rest and enjoys wasting the court precious time and other parties in litigation. This application is unmerited, an abuse of court process and should be dismissed with costs.
Analysis and Determination
I have considered the application and response and submissions on record and do start by stating that judicial review proceedings are proceedings sui generis distinct from a succession cause and other civil proceedings. The notice of motion dated 16th March 2022 was filed by the exparte applicant after obtaining leave of this court on 14th March 2022. It seeks a judicial review order of mandamus directing the County Land Registrar to implement the decision of the National Land Commission dated 28th January 2019 in respect of L.R NO.Dundori/Lanet Block5/216 ( Kiamunyeki A) within such a period as the court may consider to be just and in default the court do issue a notice to show cause against the respondent why he should not be committed to Civil Jail for contempt.
Under Article 162 (2) b of the Constitution of Kenya 2010, this court is empowered to hear and determine disputes relating to the environment and the use and occupation of, and title to, land.
Parliament, in its wisdom, enacted the Environment and Land Court Act, which establishes the Environment and Land Court as the specialized forum for the adjudication of land-related disputes. Complementing this statutory framework is the Land Act, whose Section 150 unequivocally stipulates that the Environment and Land Court: “….shall have jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Act.”
Additionally, section 13 of the Environment and Land Court Act outlines the court’s jurisdiction as follows: “(1)The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.(2)In exercise of its jurisdiction under article162(2) (b) of the Constitution, the Court [the ELC] shall have power to hear and determine disputes—(a)relating to environmental planning and protection, climate issues, land use, planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;(b)relating to compulsory acquisition of land;(c)relating to land administration and management;(d)relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and(e)any other dispute relating to environment and land.(3)Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution.”
The decisions by Ndungu J in Nakuru High Court Family Division Misc case No.33 of 2016, Elizabeth Wanjiru Njoki -vs- Juma Kiplenge sued as the legal representative of the estate of the estate of Philip Njoka Kamau on 26th July 2017 and Justice Matheka on 25th January 2021 in Nakuru High Court Succession Cause No 497 of 2013 in the matter of the estate of Philip Njoka Kamau does not in any way purport to take away this court’s jurisdiction on power to issue an order of mandamus.
The application is brought under the provisions of sections 8 and 9 of the Law Reform Act, Cap. 26, Laws of Kenya that provides the legal framework for judicial review proceedings in Kenya. Section 8 outlines the grounds upon which a court may grant orders of mandamus, prohibition, and certiorari, which are remedies available to challenge the legality of decisions made by public bodies or officials. These orders are used to ensure that public authorities act within their legal powers and adhere to the principles of natural justice.
Section 9 of the Law Reform Act sets out the procedural requirements for initiating judicial review proceedings. It mandates that applications for leave to institute judicial review must be made within six months from the date of the impugned decision. This time limit is mandatory, and failure to comply may result in the proceedings being struck out on the grounds of being time-barred. The courts have emphasized that this period is strictly enforced, as seen in cases where the Court of Appeal has ruled that judicial review proceedings must be commenced within the prescribed six-month window.
Furthermore, the application for leave to institute judicial review is typically made ex parte, and the grant of such leave does not preclude the respondent from challenging the validity of the leave if grounds exist. The provisions of Sections 8 and 9 are invoked under Order 53 of the Civil Procedure Rules, which governs the procedure for judicial review in Kenya.
The two sections do not provide for the striking out of the notice of motion for judicial review orders. Moreover, Order 53 of the Civil Procedure rules do not envisage the striking out of the Notice of Motion for Judicial review because of the existence of other proceedings.
The applicant has relied on section 3 A of the Civil Procedure Act Cap 21 Laws of Kenya. This court finds that the Civil Procedure Act does not apply to judicial review proceedings in Kenya in the same way it applies to ordinary civil litigation. Judicial review is governed by a distinct legal framework that operates alongside, but is not subordinate to, the Civil Procedure Act. The jurisdiction for judicial review is a special jurisdiction, neither civil nor criminal, and is primarily governed by sections 8 and 9 of the Law Reform Act, as well as Order 53 of the Civil Procedure Rules, which provide the procedural framework for such applications. However, the Fair Administrative Action Act, 2015, has significantly reformed the landscape, entrenching judicial review as a constitutional right under Article 47 of the Constitution of Kenya, 2010, and providing a modern, rights-based approach to administrative action. The upshot of the above is that the application has no footing and is dismissed with costs.
The interested party, Elizabeth Wanjiru Njoka has filed a Notice of Motion dated 24th October 2025 seeking orders that the Notice of Motion dated 16th March 2022 be struck out and costs be borne by the counsel for the ex-parte applicant. The application is based on grounds that no judge of co-ordinate jurisdiction has power to review, open and set aside a ruling of a judge of coordinate jurisdiction.
That the issue of jurisdiction was held on 26th July 2017 to be of family Division and not of the Environment and Land Court Jurisdiction. The applicant states that the intended parties did not appeal against the decision of Justice Ndung’u and they are bound by it.
That ruling was followed by the ruling of Lady Justice Matheka on 25th January, 2021, in Nakuru High Court Succession Cause No, 497 of 2013 in the matter of the Estate of Phillip Nioka Kamau. The interested parties who are parties to that suit, did not file an appeal to that second ruling. According to the interested party, the object of the other parties is to undertake a forum shopping, remove the adjudication of the suit from the family division and relocate it to this Honorable Court, a phenomenon which this Honorable court does not entertain. In other words, this Honorable court lacks jurisdiction to hear the said Notice of Motion dated 16th March, 2022 and as was held by the Court of Appeal in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd 119891 eKLR, where a court has no jurisdiction, it downs its tools and the said Notice of Motion is for striking out with costs.
The interested party argues that as stated in paragraph 150 of the Halsbury's Laws of England. 4th Edition, where advocates like those of the interested parties file a suit without basis, they will be condemned to pay costs personally, along with their clients and this is a suitable case for costs to be made against the advocates of the interested parties.
The applicant argues that a solicitor may be made personally liable if responsible for costs being incurred improperly or without reasonable cause or wasted by undue delay or other misconduct or default. The applicant concludes that it is in the interest of justice that the application be allowed as prayed.
Responce
In response, the ex-parte applicant filed grounds of opposition stating that the said application is misconceived, vexations, bad in law and intended to infringe and curtail the ex-parte Applicant-Lucy Wanjiru Njoka her constitutional right guaranteed and protected by virtue of Article 50(i) of the Constitution of Kenya 2010 that cannot be limited under Article 25(c) of the Constitution of Kenya 2010 in that Elizabeth Wanjiku Njoka is merely an Interested party enjoined in these proceedings to represent the estate of Alice Kahaki in reference to the subject matter L.R No. Dundori/Lanet Block 5/216 (Kiamunyeki 'A') fraudulently & illegally transferred to one Christine Nyagitha who is not opposing the reversionary of the suit property back to the ex-parte applicant as was determined by the National Land commission determination of 28th January 2019.
There is no evidence or document that the suit property was ever owned and/or was registered in the name of the late Alice Kahaki Njoka and opposition of the order for mandamus by the interested party is malafide and intended to shield her sister Christine Nyagitha Njoka- the Respondent from criminal liability for fraudulent transfer of the ex-applicants suit property as determined by the National Land Commission.
The court should also take judicial Notice that the Respondent in the main notice of Motion, the County Land Registrar has not filed any objection to the application for mandamus and the interested party has no mandate to represent the Respondents.
The exparte applicant contends that if the Estate of Alice Kahaki had any proprietary interest in the suit property, the interested patty should have moved the court and challenged the registration of the suit property currently fraudulently registered in the name of the Respondent-Christine Nyagitha to revert to the estate of Alice Kahaki. It's for the interest of justice that this Honorable court should allow the application for mandamus to proceed to its full trial and all parties to be granted an opportunity to be heard instead of applying shortcuts to serve the interest of the interested party.
On the issue of costs been borne by Advocates for the ex-parte applicant, the exparte applicant contends that her advocates are merely executing mandate of their client hence this would violate Article 50(2) (g) of the constitution of Kenya 2010 and the Principles of Natural Justice as a party has a right to choose advocates to represent her interest without intimidation, fear or favour as officer of the court.
As demonstrated by myriads of application in these proceedings, the Interested party is a vexatious litigant, will never rest and enjoys wasting the court precious time and other parties in litigation. This application is unmerited, an abuse of court process and should be dismissed with costs.
Analysis and Determination
I have considered the application and response and submissions on record and do start by stating that judicial review proceedings are proceedings sui generis distinct from a succession cause and other civil proceedings. The notice of motion dated 16th March 2022 was filed by the exparte applicant after obtaining leave of this court on 14th March 2022. It seeks a judicial review order of mandamus directing the County Land Registrar to implement the decision of the National Land Commission dated 28th January 2019 in respect of L.R NO.Dundori/Lanet Block5/216 ( Kiamunyeki A) within such a period as the court may consider to be just and in default the court do issue a notice to show cause against the respondent why he should not be committed to Civil Jail for contempt.
Under Article 162 (2) b of the Constitution of Kenya 2010, this court is empowered to hear and determine disputes relating to the environment and the use and occupation of, and title to, land.
Parliament, in its wisdom, enacted the Environment and Land Court Act, which establishes the Environment and Land Court as the specialized forum for the adjudication of land-related disputes. Complementing this statutory framework is the Land Act, whose Section 150 unequivocally stipulates that the Environment and Land Court: “….shall have jurisdiction to hear and determine disputes, actions and proceedings concerning land under this Act.”
Additionally, section 13 of the Environment and Land Court Act outlines the court’s jurisdiction as follows: “(1)The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.(2)In exercise of its jurisdiction under article162(2) (b) of the Constitution, the Court [the ELC] shall have power to hear and determine disputes—(a)relating to environmental planning and protection, climate issues, land use, planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;(b)relating to compulsory acquisition of land;(c)relating to land administration and management;(d)relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and(e)any other dispute relating to environment and land.(3)Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution.”
The decisions by Ndungu J in Nakuru High Court Family Division Misc case No.33 of 2016, Elizabeth Wanjiru Njoki -vs- Juma Kiplenge sued as the legal representative of the estate of the estate of Philip Njoka Kamau on 26th July 2017 and Justice Matheka on 25th January 2021 in Nakuru High Court Succession Cause No 497 of 2013 in the matter of the estate of Philip Njoka Kamau does not in any way purport to take away this court’s jurisdiction on power to issue an order of mandamus.
The application is brought under the provisions of sections 8 and 9 of the Law Reform Act, Cap. 26, Laws of Kenya that provides the legal framework for judicial review proceedings in Kenya. Section 8 outlines the grounds upon which a court may grant orders of mandamus, prohibition, and certiorari, which are remedies available to challenge the legality of decisions made by public bodies or officials. These orders are used to ensure that public authorities act within their legal powers and adhere to the principles of natural justice.
Section 9 of the Law Reform Act sets out the procedural requirements for initiating judicial review proceedings. It mandates that applications for leave to institute judicial review must be made within six months from the date of the impugned decision. This time limit is mandatory, and failure to comply may result in the proceedings being struck out on the grounds of being time-barred. The courts have emphasized that this period is strictly enforced, as seen in cases where the Court of Appeal has ruled that judicial review proceedings must be commenced within the prescribed six-month window.
Furthermore, the application for leave to institute judicial review is typically made ex parte, and the grant of such leave does not preclude the respondent from challenging the validity of the leave if grounds exist. The provisions of Sections 8 and 9 are invoked under Order 53 of the Civil Procedure Rules, which governs the procedure for judicial review in Kenya.
The two sections do not provide for the striking out of the notice of motion for judicial review orders. Moreover, Order 53 of the Civil Procedure rules do not envisage the striking out of the Notice of Motion for Judicial review because of the existence of other proceedings.
The applicant has relied on section 3 A of the Civil Procedure Act Cap 21 Laws of Kenya. This court finds that the Civil Procedure Act does not apply to judicial review proceedings in Kenya in the same way it applies to ordinary civil litigation. Judicial review is governed by a distinct legal framework that operates alongside, but is not subordinate to, the Civil Procedure Act. The jurisdiction for judicial review is a special jurisdiction, neither civil nor criminal, and is primarily governed by sections 8 and 9 of the Law Reform Act, as well as Order 53 of the Civil Procedure Rules, which provide the procedural framework for such applications. However, the Fair Administrative Action Act, 2015, has significantly reformed the landscape, entrenching judicial review as a constitutional right under Article 47 of the Constitution of Kenya, 2010, and providing a modern, rights-based approach to administrative action. The upshot of the above is that the application has no footing and is dismissed with costs.