Introduction
1. This ruling pertains to the Chamber Summons application dated 13th April 2026, brought by Joan Kiunga Kiengo in her capacity as the Administrator of the Estate of the Late Duncan Muriuki James. The application is primarily anchored on Article 23 of the Constitution of Kenya and Section 11 of the Fair Administrative Actions Act, 2015 but brought within the purview of Order 53 of the Civil Procedure Rules.
2. Through the said application, the Ex-Parte Applicant seeks leave of this Honorable Court to apply for Judicial Review orders, specifically:
a. THAT the matter be placed before the duty/trial Court as a matter of urgency and be certified as urgent ex-parte, service thereof in the first instance being dispensed with.
b. THAT pursuant to Article 23 of the Constitution and Section 11 of the Fair Administrative Actions Act, 2015, this Honorable Court be pleased and hereby issues the Applicant leave to apply for the judicial review orders of:
c. An order of Certiorari to remove into this court for the purposes of being quashed the award by the Kajiado Land Dispute Tribunal in the Tribunal case number TC 504/04/ 09 and/or decree/order adopted by the court as a result of the award in the Tribunal case number TC 504/ 04/ 09 and quash the same thereby ordering that the land parcels known as Kajiado/ Kaputiei- North/ 12775, Kajiado/ Kaputiei- North/ 12776 and Kajiado/ Kaputiei- North/ 12777 revert back to the original owner, the Late Duncan Muriuki James.
d. A declaration that the Late Duncan Muriuki James is the rightful owner and proprietor of the land parcels known as Kajiado/ Kaputiei- North/ 12775, Kajiado/ Kaputiei- North/ 12776 and Kajiado/ Kaputiei- North/ 12777
e. THAT a temporary injunction to issue restraining the 1st Interested Party, her servants or agents and or any other person claiming through her from entering, fencing, surveying, beaconing, advertising, selling, transferring, charging, leasing, alienating or otherwise interfering with the land parcels known as Kajiado/ Kaputiei- North/ 12775, Kajiado/ Kaputiei- North/ 12776 and Kajiado/ Kaputiei- North/ 12777 and/or any of their resultant subdivisions pending the hearing and determination of the application for leave to apply for judicial review orders.
f. THAT a temporary injunction to issue restraining the 1st Interested Party, her servants or agents and or any other person claiming through her from entering, fencing, surveying, beaconing, advertising, selling, transferring, charging, leasing, alienating or otherwise interfering with the land parcels known as Kajiado/ Kaputiei- North/ 12775, Kajiado/ Kaputiei- North/ 12776 and Kajiado/ Kaputiei- North/ 12777 and/or any of their resultant subdivisions pending the hearing and determination of the application for judicial review.
g. THAT this Honorable Court be pleased to order that inhibitions be registered against any dealings in respect of the land parcels known as Kajiado/ Kaputiei- North/ 12775, Kajiado/Kaputiei- North/ 12776 and Kajiado/ Kaputiei- North/ 12777 and/or any of their resultant subdivisions pending the pending the hearing and determination of the application for leave to apply for judicial review orders.
h. THAT this Honorable Court be pleased to order that inhibitions be registered against any dealings in respect of the land parcels known as Kajiado/ Kaputiei- North/ 12775, Kajiado/Kaputiei- North/ 12776 and Kajiado/ Kaputiei- North/ 12777 and/or any of their resultant subdivisions pending the hearing and determination of the application for judicial review.
i. THAT the Officer Commanding Police Station within who’s the jurisdiction of the land parcels known as Kajiado/ Kaputiei- North/ 12775, Kajiado/ Kaputiei- North/ 12776 and Kajiado/Kaputiei- North/ 12777 and/or any of their resultant subdivisions is, to ensure compliance with the Orders of the Court.
j. THAT this Honorable Court be pleased to issue such further or other orders as may be necessary for the ends of justice and the protection of the dignity and authority of this Court.
k. THAT the costs of the application be provided for.
3. The core of the Applicant's grievance is that the Kajiado Land Dispute Tribunal acted without jurisdiction in determining a matter of land ownership, which was allegedly beyond its statutory mandate under the Land Disputes Tribunals Act (Repealed). Furthermore, the Applicant contends that the proceedings before the Tribunal were conducted ex-parte without service of summons or notice to the Late Duncan Muriuki James, thereby violating the rules of natural justice and the right to a fair hearing as enshrined under Articles 47, 48, and 50 of the Constitution.
4. The application further seeks temporary injunctive reliefs and inhibition orders to restrain the 1st Interested Party, Agnes Koitankei, from interfering with or disposing of the suit lands pending the final determination of the judicial review proceedings. The Applicant maintains that such intervention is necessary to avert a material miscarriage of justice and to protect the proprietary rights of the deceased’s estate.
5. The application, on the directions of the court, was canvassed by way of written submissions, which have been duly considered in the writing of this ruling.
Analysis and Determination
6. Issues for determination
7. The singular issue falling for determination at this stage is whether the Applicant has met the legal threshold for the grant of leave to commence Judicial Review proceedings seeking an order of Certiorari.
8. As this is an ex-parte application for leave, the Court is tasked with evaluating whether the Applicant has demonstrated an "arguable case" that is neither frivolous nor vexatious, thereby warranting a full ventilation of the dispute through a substantive Motion.
9. The essence of seeking leave is to provide a judicial filter against claims that are legally untenable or procedurally defective. The locus classicus on this point is Mirugi Kariuki v Attorney General [1992] KLR 8, where the Court of Appeal stated:
"The purpose of the leave is to eliminate at an early stage any applications for judicial review which are frivolous, vexatious or hopeless and to ensure that a claimant has a sufficient interest in the matter to which the application relates."
10. At this preliminary stage, the Court is not required to delve into the final merits of the dispute. This was clarified in Republic v Commissioner of Customs & Excise ex parte Kenya Oil Company Limited [2004] eKLR:
"The court at the stage of leave is only concerned with whether the applicant has an arguable case. It is not the stage for the court to conduct a mini-trial or to determine the merits of the case with finality."
11. The Applicant has indeed raised substantial allegations regarding the Kajiado Land Dispute Tribunal acting ultra vires its statutory mandate by determining matters of land ownership.
12. Judicial Review is a specialized public law remedy governed by specific procedural rules. When litigants elect to approach the Court by way of Judicial Review, adherence to the dictates of Order 53 of the Civil Procedure Rules is mandatory.
13. The Supreme Court of Kenya affirmed the position that where a party approaches the High Court under Order 53 of the Civil Procedure Rules and sections 8 and 9 of the Law Reform Act , they must first seek and obtain leave before filing the substantive Notice of Motion.
14. The apex Court stated as follows in Petition No. 20 of (E023) 2022, Isaac Aluoch Polo Aluochier -vs- IEBC and 17 others:
“Rejecting the appellant’s application to review by quashing this decision, the High Court agreed and upheld the reasons and conclusions by the Committee for dismissing the complaint. It also found that the application, though constitutional, sought judicial review reliefs and ought to have been commenced in accordance with the relevant rules. The Court of Appeal, on a second challenge affirmed this determination, answering the two issues framed by the High Court; whether the application was competent and whether the Committee had jurisdiction to determine the dispute before it. It appears to us that the ratio emanating from the High Court decision was around, the nature and scope of judicial review; the doctrine of sub-judice; and the jurisdiction of the Committee. On the first question, the learned Judge rendered this statement; “What then is the procedure for bringing Judicial Review application? The submission by Mr. Aluochier that this application is under Article 47 of the Constitution and therefore not subject to Order 53 Civil Procedure Rules and Section 8 and 9 of the Law Reform Act cannot hold water. Judicial Review is a special jurisdiction. In so far as no rules have been made under Article 47 of the Constitution, there can be no vacuum in law. A party approaching court for Judicial Review orders of Certiorari, Mandamus and Prohibition must comply with the procedure under Order 53 of the Civil Procedure Rules. He must seek the court’s leave first through a Chamber Summons Application supported by a Statement of Facts and a Verifying Affidavit and annexures in support of the prayers. In this case, the applicant should have annexed the impugned decision. It is after grant of leave, that an applicant is allowed to file the Notice of Motion application within 21 days. Seeking of leave is meant to expedite the process and weed out any frivolous applications. The applicant has done none of that. What is before the court is neither a Judicial Review application nor a Petition. If the applicant wanted to file a Petition to seek any Constitutional remedies available including Judicial Review orders, he should have done so under the rules under the Constitution (Mutunga Rules). Article 23(3) of the Constitution outlines the remedies a person can seek in a Constitutional Petition which includes Judicial Review orders. If it was a petition, then the applicant would have not needed to seek leave of court to file the petition.”
15. The primary relief sought by the Applicant is an order of Certiorari to quash the decision of the Kajiado Land Dispute Tribunal in Case No. TC 504/04/09. The procedure and timelines for seeking an order of Certiorari are expressly governed by Order 53, rule 2 of the Civil Procedure Rules, which provides:
"Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any Act; and where the proceeding is subject to appeal and a time is limited by law for the bringing of the appeal, the judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired."
16. The wording of Order 53, rule 2 is clear and imperative. The impugned decision of the Tribunal was rendered on 22nd October 2009. The present Chamber Summons seeking leave to apply for Certiorari was filed on 13th April 2026. This constitutes a delay of over sixteen (16) years. This immense delay in filing for Certiorari is a profound procedural impropriety. The statutory framework designs Judicial Review as an expeditious remedy; the six-month limitation for Certiorari ensures administrative certainty. By filing the application more than a decade and a half outside the mandatory six-month window, the application suffers from a fatal procedural flaw.
17. Because the procedure chosen by the Applicant contains a mandatory time limit that has long since lapsed, the application for leave is procedurally incompetent. In the context of the Mirugi Kariuki test, an application that fundamentally violates the mandatory procedural timelines of Order 53 cannot constitute an "arguable case" and is, procedurally speaking, hopeless.
18. While the Court notes the substantive grievances raised by the Applicant regarding the Tribunal's actions, litigants must utilize the correct procedural mechanisms within the timeframes established by law. The procedural impropriety of seeking Certiorari sixteen years after the fact cannot be cured at the leave stage.
19. Accordingly, the Court makes the following orders:
A. LEAVE IS HEREBY DENIED to the Ex-Parte Applicant to apply for the Judicial Review order of Certiorari.
B. The Chamber Summons dated 13th April 2026 is hereby STRUCK OUT for being procedurally incompetent and time-barred under Order 53, rule 2 of the Civil Procedure Rules.
C. The court makes no orders as to costs
It is so ordered.
Dated, Signed and Delivered Virtually this 21st Day of May, 2026.
M.D. MWANGI
JUDGE
In the virtual presence of:
Mr. Kuria h/b for Mr. Taliti for the Ex Parte Applicants
N/A by the Respondents and the Interested Parties
Court Assistant: Alex
M.D. MWANGI
JUDGE