PATRICK MUNYOKI NGUNI VS AUGUSTUS NDILI NZUNGULI AND THE ADJUDICATION OFFICER NZAWA ADJUDICATION SECTION AND 4 Others

1. The Ex Parte Applicant filed the amended Notice of Motion dated 14th April 2023 and amended on 16th May 2024 seeking orders:-
1) THAT this Honourable Court do issue an order of Certiorari to remove into this court and quash the decision of the 1st Respondent in Nzawa Adjudication Section Appeal cases No.102/1999, 28/2020 and 35/2000 in dismissing appeal nos. 35/2000 and 28/2020 and partly allowing appeal no.102/1999 where the tribunal directed that the ex parte applicant and the interested party to share parcel number 1677 equally.
2) THAT this Honourable Court do issue an order of prohibition directed against the 1st respondent from altering the duplicate adjudication register to conform to the decision of the 4th respondent.
3) THAT this Honourable Court do issue an order of prohibition directed against the 2nd respondent from certifying and/or finalizing the adjudication register for the adjudication section herein and/or sending details of such alteration to the Chief land registrar or at all.
4) THAT this Honourable Court do issue an order of prohibition directed against the 3rd respondent from receiving details of any alterations and/or its certificate and/or altering the adjudication register in accordance thereof.
5) THAT costs of this application be provided for.
6) Any other relief this Honourable Court may deem just and expedient to grant
2. The application was accompanied by a statutory statement and a verifying affidavit. The parties herein were involved in land adjudication in the Nzawa Adjudication Section concerning land parcel numbers 1677, 578 and 1575. The exparte applicant’s father Nguni Thenga Katuli (represented by the exparte applicant) filed an appeal to the Minister against the Interested Party’s father, Ngandi Kiluti (deceased) (represented by the interested party). The appeals were Numbered 28/200 and 102/1999 concerning land parcel numbers 1575 and 1677 and also appeal number 35/200 concerning land parcel 578.
3. The ex-parte applicant stated that his father was the first to occupy Land Parcels 1677 and 1575 Nzawa Adjudication Sections and that the family of Ngandi Kiluti only showed up at the suit parcels during demarcation. He deposed that the said Ngandi Kiluti(Deceased) never settled on these parcels of land and was living more than 10 kilometres from the disputed land. He only came during demarcation and started claiming the suit lands herein.
4. The ex-parte applicant states that during the committee stage of adjudication, Ngandi Kiluti was given a portion of land parcel 1677 which was given a new number1575 and the other portion of 1677 was joined with land parcel 578.
5. When his father Nguni Thenga filed an objection, parcel numbers 1575 and 1677 were awarded to Ngandi Kiluti.  On appeal it was ordered that land parcel 1575 be retained by the interested party and land parcel 1677  be divided equally between the parties.
6. The ex-parte applicant contends that the decision at the Minister’s appeal was arrived at unjustly and was not founded on any cogent evidence. He impugns the decision in the Minister's Appeal for considering extraneous matters and relying on considerations other than the evidence on record. He further contends that the 2nd Respondent was in a rush to conclude the appeals and did not properly evaluate the evidence on record and thus came to an unjust decision.
The 1st to 6th Respondents’ Replying Affidavit
7. Zablon Mwangi, the Sub-County Land Adjudication and Settlement Officer in Mwingi Sub-County swore an affidavit in response to the application herein deposing that it is misconceived and an abuse of the court process.
8. He stated that during the demarcation and survey process, parcel number 578 was allocated to Nzunguli Ngondi Kiluti, 1677 to Nguni Thenga and 1575 to Ngandi Kiluti.
9. A committee case was filed against the ownership of Land Parcel 1677 and after hearing of the case the land was allocated to Nguni Thenga. An appeal by Ngandi Kiluti was filed at the Arbitration Board which was allowed; hence the whole portion of land claimed was awarded to him.
10. At the objection stage, Nguni Thenga filed objections to Land Parcel Numbers 578, 1575 and 1677. The objections were heard and dismissed and the parcels remained in the name of Ngandi Kiluti.
11. The decision in the objection cases gave rise to Appeals to the Minister case numbers 102 of 1999, 28 of 2000 and 35 of 2000 filed by Nguni Thenga, which were heard by the Deputy County Commissioner Migwani Sub-County.
12. Appeal number 28 of 2000 was dismissed and parcel number 1575 remained with Ngundi Kiluti. Appeal Number 102 of 1999 was partially allowed and parcel number 1677 was divided equally to both parties. Appeal number 35 of 2000 was dismissed and Parcel Number 578 was retained by Nzunguli Ngandi.
13. It was deposed that the averments by the applicant that the adjudication process was marred with legal improprieties are incorrect since all parties appeared before all the tribunals and at no point did the Applicant raise a complaint or object to any legal or procedural improprieties. The Respondents relied on the evidence adduced by the parties and arrived at the decisions made.
The Interested Party’s Replying Affidavit
14. The Interested Party swore an affidavit opposing the application herein. He deposed that his grandfather, Ngandi Kiluti, owned the land in dispute as far back as 1935 and in 1939. He left the parcel in the care of his brother, Ndili Kiluti. In 1940, the ex parte applicant’s grandfather Thenga Katuli was chased out of land belonging to Mwaka Minza where he had originally settled. He asked Ndili Kiluti for help since they were in-laws. Ndili Kiluti decided to give him a portion of Ngandi Kiluti’s land on the condition that when the owner returned, Thenga Katuli would leave.
15. Ngandi Kiluti, the interested party’s grandfather, returned in 1942 and found Thenga Katuli had erected a house on the land. He asked to settle permanently on the land. Ngandi Kiluti agreed and they marked their boundaries with sisal plants. The portion of the land given to Thenga Katuli was thereafter adjudicated in his name as parcel 2207.
16. Since the Interested party’s grandfather was a pastoralist, he divided his land into two parcels 1677 and 1575, one was used for farming and the other for grazing and both were registered in his name. With regard to land parcel 578, the Interested Party deposed that it was lawfully acquired by his father through purchase from Kiiya Mbusya and Kiathaka Ututu on 12th August 1980. The land was originally parcel 1675 but was later subdivided to 578. He exhibited an agreement for the sale of land.
17. The interested party deposes that after Thenga Katuli passed on, his son Nguni Katuli started encroaching onto his father's land in 1980. His father filed a dispute with the Land Adjudication Committee, which made a site visit and established boundaries. According to him the committee wrongfully found that Land Parcel 1677 should be divided between the two disputing parties since the land that his grandfather had given to Thenga Katuli was Land Parcel 2207.
18. Being dissatisfied with the Committee’s decision, the interested party’s grandfather appealed. The board visited the suit property on 27th October 1987 and found that the initial boundary had been tampered with and destroyed. The Appeal was allowed and the Land Parcel 1677 was awarded back to the interested party’s grandfather fully.
19. Being dissatisfied with the decision, the ex-parte applicant’s father Nguni Thenga filed appeals to the Minister cases 102/1999 and 28/2000, where both appeals were heard together because he claimed that land parcels 1677 and 1575 were one parcel of land. Both parties were allowed to be heard. The outcome was that Appeal 28/2000 concerning parcel 1575 was dismissed and the land was retained in his grandfather's name while Appeal 102/1999 concerning parcel 1677 was determined to be divided equally between the two parties.
20. The Interested party claimed that there was another third case that Nguni Thenga filed against the interested party’s father, Nzunguli Ngandi, where he claimed that Land parcels 1677, 578 and 1575 all belonged to his father Thenga Katuli. The land adjudication committee found that the case had no basis and dismissed it. Nguni Thenga filed an appeal but the ex parte applicant and the interested party represented their fathers in this case due to their old age. This appeal to the Minister was dismissed in favour of the interested party’s father.
21. The interested party deposed that judicial review does not concern itself with the merits of a decision and that the ex-parte applicant must satisfy the court that the decision was unprocedural, unreasonable or illegal. He states that the ex-parte applicant failed to prove this since both parties were allowed to present their cases.
22. The interested party avers that the adjudication process and impugned decisions were fair, objective and procedural and that the ex parte applicant is aggrieved with the decision itself and not the decision-making process, failing to demonstrate probable grounds for judicial review, stating that the application should be dismissed with costs.

The Ex-parte Applicant’s Submissions
23. Counsel for the ex-parte applicant submitted that the law on Judicial Review is now well settled, as they relied on the decision of the Environment and Land court in the case of Republic v District Land Adjudication and Settlement officer Maara Sub-County & 5 others Ex Partc Applicant M'nyiri Rangwa, Njeru Kiririka (Interested Party) 12021J eklr where Justice C. K. Yano held that an applicant must satisfy that a public officer acted unprocedurally and the decision was unreasonable and illegal.

24. It was submitted that the Minister's Appeal tribunal misdirected itself during the hearing of the appeal by considering issues that were non-existent.
25. They submitted that this decision was made contrary to Section 4 of the Fair Administrative Action Act and relied on the decision of Robert Kuling.1 Nyamu v Musembi Mutunga & Another (2022) eklr where it was held that one can seek judicial review over a decision where the Minister acted wrongly or in excess of jurisdiction.
The Interested Party’s Submissions.
26. Counsel submitted that the Interested Party has been joined to these proceedings as the purported representative of the deceased Ngandi Kiluti and Nzunguli Ngandi, contrary to Section 2 of the Civil Procedure Act and Section 79 of the Law of Succession Act which define a legal representative as a person in law who represents the estate of a deceased person.
27. Reliance was placed on the authority of Melickzedeck Shem Kamau v. Beatrice Waithera Maina & 2 others [2020] eKLR where it was held that suits against the estate of a deceased person are brought by or against the legal representative of the estate.
28. The suit properties in question are registered to the now deceased Nzunguli Ngandi and Ngandi Kiluti and no letters of administration have been taken out over the said Estates and there are no legal representatives to their estates.
29. It was submitted that the Interested Party representing his family at the hearing of the Minister's Appeal does not make him qualify to be a legal representative in this case. Counsel stated that the Interested Party is not a proper party to this suit and ought to be struck out of these proceedings entirely.
30. Further, it was submitted that the 2nd Respondent herein was acting on delegated powers from the 3rd Respondent and he had the requisite jurisdiction to hear and determine the appeal and make the decision as per Section 29 of the Land Adjudication Act CAP 284.
31. Regarding the prayer for an order of certiorari, it was submitted that it was held in Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge Njoroge & 9 others where it was stated that an order can only be made to quash a decision that has been made without or in excess of jurisdiction, which the ex-parte has failed to prove.
32. It was also submitted that there was no breach of the rules of natural justice and that all evidence was considered. The Ex-parte applicant had an opportunity to adduce his evidence, call witnesses and challenge the evidence presented by the Interested Party.
33. It is the Interested Party’s submission that a court faced with an application seeking judicial review orders would only be concerned with the process leading to the decision and should not sit on appeal of the decision as the ex parte applicant is inviting this court to do. They relied on the decision of the Court of Appeal in Municipal Council of Mombasa v Republic Umoja Consultants Ltd, Nairobi Civil Appeal No.185 of 2007(2002) eKLR.
34. Counsel concluded that the Ex-parte Applicant had a burden to discharge as to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety, which he failed to discharge and prayed that the application be dismissed with costs.
35. State Counsel for Respondents opted not to file submissions and rely fully on their replying affidavit.
Analysis and Determination
36. Before the Court considers the merits of the application herein, it is noted from the record hereinthat the Interested Party herein Augustus Ndili Nzunguli was initially sued as the 1st Respondent. By the court’s ruling dated 7th May 024, the name of the then 1st Respondent was struck out. By a further order, the ex parte applicant was granted liberty to amend the Notice of Motion dated 14th April 2023 by striking out the name of Augustus Ndili Nzili as the 1st Respondent and adding him as an interested party. The ex parte applicant then filed an amended Notice of Motion dated 14th April 2023 and amended on 16th May 2024 effecting the orders of the Court.
37. Having considered the Amended Notice of Motion herein, Statement of Facts, verifying affidavit, the replying affidavits and written submissions by Counsel for the parties, the court is of the view that the following issues arise for determination:
A) Whether the proceedings and decision of the 4th Respondents were unprocedural, considered extraneous matters, or violated the principles of natural justice.
B) Whether the Interested Party was properly joined to this suit.
C) Whether the ex parte Applicant met the threshold for the grant of orders sought
A) Whether the proceedings and decision of the 4th Respondents were unprocedural, considered extraneous matters, or violated the principles of natural justice.

38. The right to Fair administrative action is anchored under Article 47 of the Constitution of Kenya 2010 and Section 4(1) of the Fair Administrative Action Act No. 4 of 2015 which provide that;
“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.”
39. The ex-parte applicant complains that the 4th Respondent failed to accord him fair administrative action through his decisions in Appeals to the Minister No.102/1999, 28/2020 and 35/2000 and in dismissing appeal nos. 35/2000 and 28/2020 and partly allowing appeal no.102/1999. He complains in Appeal No. 102/1999, the tribunal directed that the ex parte applicant and the 1st respondent in the appeal to share parcel number 1677 equally.
40.  He complained that the proceedings and decision of the 4th Respondent were unprocedural and that the decision considered extraneous matters that were based on irregularities. The ex-parte applicant further complained that the 2nd Respondent’s decisions were arrived at unjustly and not based on cogent evidence.
41. Fair administrative action includes the right to a fair hearing. Article 50 of the Constitution provides for fair hearing stating that;
“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”
42. The Ex-parte Applicant seeks orders of certiorari, prohibition and mandamus concerning the decision of the 4th Respondent in Nzawa Adjudication Section Appeal cases No.102/1999, 28/2020 and 35/2000 in dismissing appeal nos. 35/2000 and 28/2020 and partly allowing appeal no.102/1999 where the tribunal directed that the ex parte applicant and the 1st respondent to share parcel number 1677 equally.
43. The parties herein relied on the decision of the Court of Appeal in the case of Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR in their submissions, where the Learned Judges of Appeal held that:
“That now brings us to the question we started with, namely, the efficacy and scope of mandamus, prohibition of certiorari. These remedies are only available against public bodies such as the Council in this case. What does an ORDER OF PROHIBITION do and when will it issue? It is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal or a wrong decision on the merits of the proceedings – See HALSBURY'S LAW OF ENGLAND, 4th Edition, Vol.1 at pg.37 paragraph 128.……… Only an order of CERTIORARI can quash a decision already made and an order of certiorari will issue if the decision is made without or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons."
44. While considering the first issue herein, the Court will examine the proceedings in the impugned Appeals to the Minister to establish whether the 2nd Respondent’s decision was unprocedural, considered extraneous matters, or violated principles of natural justice.
45. The Court notes that during the hearing of Appeal No. 35/2000 presided over by the 4th Respondent herein, the Deputy County Commissioner-Migwani Sub-County, the ex-parte Applicant who was the Appellant and the Interested Party who was the Respondent in the appeal both recorded their statements and were cross-examined by the 4th Respondent herein.
46. The 4th Respondent in his decision analysed the evidence adduced by both parties. He made reference to a site visit made when both parties were present. It was noted during the visit that the Appellant had no works on the suit land while he observed that the land was fully cultivated by the Respondent’s family. He further made several findings stating that he had studied the entire case file and made observations that it was not easy to confirm that parcel number 578 was part of parcels 1575 and 1677 for the reason that there was no trace of the Appellant grandfather's and his family's activities on the land. He also found that the Appellant did not contest for the land in the other stages of the adjudication and he did not give reasons why.
47. He found evidence that land parcel 578 was bought by the Respondent from Kiiya Mbusya and Kithiaka Ututu. The 4th Respondent also found no evidence that the Appellant stopped the Respondent from developing the land. As a result of the findings of the 4th Respondent he concluded that the Respondent’s claim had merit, he dismissed the appeal and ordered that the land parcel 578b be retained by the Respondent, Nzunguli Ngandi.
48. The Court also notes that during the hearing of Appeal numbers 102/1999 and 28/2000, the Appellant and the Respondent in the appeals recorded their statements and cross-examined each other and were cross-examined by the 4th Respondent herein.
49. The Deputy County Commissioner made findings that were extensive and elaborate and he made various observations therein. It was found that both parties owned land in the area, but it was hard to confirm that the lands were acquired by the Appellant's grandfather in 1917 or 1935 by the Respondent. The 4th Respondent observed that the Land Committee had noted the rights of the two parties to the land. Reference was made to the findings of the arbitration board and in particular the findings during a site visit where they found large sisal plants destroyed by the Appellant to encroach on the respondent's land.
50. The 4th Respondent also referred to a site visit that he made and observed that parcel 1677 was ploughed by the Appellant for crop production while parcel 1575 was ploughed by the Respondent. The decision was made that Land Parcel 1575 be retained by the respondent and Parcel No. 1677 be divided equally to award the parties a half share each.
51. The 4th Respondent was clear that the decision arrived at was in accordance with the evidence adduced before him, the proceedings before the previous tribunals that heard the dispute between the parties and the site visit made. The decision was also made in the best interests of the parties and to bring the dispute to a close.
52. The Court finds that the Deputy County Commissioner had the mandate to consider the grounds of appeal filed, previous evidence tendered, and evidence adduced before him and make his own determination as he deems just and fair under Section 29 of the Land Adjudication Act. The said section provides the procedure for filing an appeal and the process the appeal is to take. Section 29(1) of the Land Adjudication Act reads as follows:
Any person who is aggrieved by the determination of an objection under section 26 of this Act may, within sixty days after the date of the determination, appeal against the determination to the Minister by—
  (a) delivering to the Minister an appeal in writing  specifying the grounds of appeal; and
(b) sending a copy of the appeal to the Director of Land  Adjudication, and the Minister shall determine the  appeal and make such order thereon as he thinks  just and  the order shall be final.
53. The case of  Matwanga Kilonzo v District Commissioner, Kitui & another [2021] eKLR elaborated on the mandate of the Minister under Section 29 of the Land Adjudication Act and stated that:
“The Minister’s mandate under Section 29 of the Act is to consider the grounds of appeal raised by any person appealing against the decision of the Land Adjudication Officer, and upon considering the record of the Land Adjudication Officer, arrive at an independent decision. Indeed, just like what happens in an appellate court, the Minister need not take fresh evidence while dealing with the appeal, although he may do so to seek clarification on certain issues. However, he must consider the grounds of appeal and the evidence that was adduced before the Land Adjudication Officer before making his decision. The said decision must give reasons as to why he agrees or disagrees with the decision of the Land Adjudication Officer…... The 1st Respondent made the above finding after hearing the parties herein, and after considering the decision of the Land Adjudication Officer. Considering that the 1st Respondent heard both parties and considered the proceedings of the Land Adjudication Officer, I am not convinced that the 1st Respondent was biased while arriving at his decision.”
54. From the summary of the proceedings, before the 4th Respondent made above, it is the Court’s opinion that the 4th Respondent conducted the hearing of the appeals before him in accordance with the law as stated in Section 29 of the Land Adjudication Act and as elaborated in the Matwanga case. In the Court's view, the impugned proceedings were conducted procedurally and were sound and fair. There is no evidence that extraneous or irrelevant matters tainted with irregularities were considered. The Deputy County Commissioner considered the findings of the Arbitration Board and the objection proceedings correctly as was expected in any appeal, where the previous proceedings are supposed to be considered.
55. Section 12 of the Fair Administrative Action Act No.4 of 2015, provides that the general principles of common law and rules of natural justice continue to apply in review of administrative actions. This was noted in the case of Suchan Investment vs. The Ministry of National Heritage and Culture (2016) eKLR where the Court of Appeal held as follows:
“it is clear that Articles 47 and 50(1)- have elevated the rules of natural justice and the duty to act fairly when making administrative, judicial or quasi-judicial decisions into constitutional rights capable of enforcement by an aggrieved party in appropriate cases.”
56. The Court believes that the impugned proceedings were conducted fairly according to the rules of natural justice. Both parties made their statements and were given a chance to cross-examine each other and none had an advantage over the other.
57. The Court thus finds that the proceedings and decision of the 4th Respondent were conducted in a procedural manner and he did not consider extraneous matters. The proceedings and decisions did not violate principles of natural justice.
B) Whether the Interested Party was properly joined to this suit
58. The Interested Party contends that he is not a proper party and was wrongly joined to this suit since the suit properties are registered to the now deceased Nzunguli Ngandi and Ngandi Kiluti and no letters of administration have been taken out over their estates. He claims that he is not a legal representative and has no capacity or locus standi to be sued over the said estates.
59. Locus standi was defined in the case of Alfred Njau and Others ..Vs. City Council of Nairobi ( 1982) KAR 229, where the Court held that;-
“The term Locus Standi means a right to appear in Court and conversely to say that a person has no Locus Standi means that he has no right to appear or be heard in such and such proceedings.”
60. The interested party Augustine Ndili Nzunguli joined this suit under the court's directions issued on 7th May 2024. The joinder was made under the provisions of Order 53, Rules 2 and 4 of the Civil Procedure Rules which provide for service of the Notice of Motion on all persons directly affected by the matters before the court and states as follows;
(1) When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within twenty-one days by notice of motion to the High Court, and there shall, unless the judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for the hearing.
(2) The notice shall be served on all persons directly affected, and where it relates to any proceedings in or before a court, and the object is either to compel the court or an officer thereof to do any action in relation to the proceedings or to quash them or any order made therein, the notice of motion shall be served on the presiding officer of the court and on all parties to the proceedings.
(3)  An affidavit giving the names and addresses of, and the place and date of service on, all persons who have been served with the notice of motion shall be filed before the notice is set down for hearing, and, if any person who ought to be served under the provisions of this rule has not been served, the affidavit shall state that fact and the reason why service has not been effected, and the affidavit shall be before the High Court on the hearing of the motion.
(4)  If on the hearing of the motion the High Court is of the opinion that any person who ought to have been served therewith has not been served, whether or not he is a person who ought to have been served under the foregoing provisions of this rule, the High Court may adjourn the hearing, in order that the notice may be served on that person, upon such terms (if any) as the court may direct.
61. The foregoing provisions of the law allow for the service of pleadings and the participation in these proceedings of persons directly affected by the matters before the court. The said provisions do not indicate that the Notice of Motion is to be filed against the persons directly affected but the same is to be "served” upon such persons. The court is of the view that the interested party herein is such a person since he actively participated and testified in Appeals to the Minister numbers 35/2000 as a representative of Nzunguli Ngandi, 102/1999 and 28/2000 as a representative of Ngandi Kiluti.
62. Indeed the Court notes that the interested party filed a lengthy, detailed replying affidavit sworn on 7th June 2023 setting out details of the dispute in this suit and his participation in it. The interested party was allowed to participate in the Appeals notwithstanding the fact that he did not have letters of administration. In the court's view, the said admission to the proceedings was in order based on the decision of the Court of Appeal in the case of Dominic Musei Ikombo v Kyule Makau [2019] eKLR where the Court had this to say on having legal representatives during the adjudication process.
"Our view is that proceedings conducted under the Land Adjudication Act are not strictly speaking akin to proceedings under the Civil Procedure Act. The District Commissioner acting on behalf of the Minister has wide latitude to conduct the proceedings in a manner that meets the substantive ends of justice. Section 13 of the Land Adjudication Act talks of “guardian” or “representative according to African Customary Law”. It does not refer to legal representatives. The strict rules of civil litigation as relates to the capacity to sue and be sued do not apply to proceedings before the committee or the minister. It is not therefore necessary for a person appearing on behalf of a family or clan where the head of the family or clan has died to possess letters of administration in respect of a deceased claimant. The parties therefore had locus standi to appear before the adjudication committee, lack of letters of administration notwithstanding.”
63. In the Court’s further view, it would have been ideal for the administrators of the estate of the deceased owner of the suit parcels of the land to have been joined as interested parties to the suit; however, this would not preclude the current interested party from being joined as a party to the same proceedings.
64. The position of an interested party in a suit was explained in the case of John Harun Mwau v Simon Haysom & 2 Others; Attorney General & 2 others (Interested parties) which cited the principles laid down by the Supreme Court of Kenya in the case of Methodist Church in Kenya v Mohamed Fugicha & 3 Others (2019) eKLR where it held citing the Muruatetu case:
“Therefore, in every case, whether some parties are enjoined as interested parties or not, the issues to be determined by the court will always remain the issues as presented by the principal parties or as framed by the Court from the pleadings and submissions of the principal parties. An interested party may not frame its own fresh issues or introduce new issues for determination by the court”
65. From the above-cited Supreme Court decision, the positions of the principal parties to a suit and that of an interested party are different and the interested party in this suit is cited based on his participation in the appeals before the 4th Respondent.
C) Whether the ex parte Applicant met the threshold for the grant of orders sought
66. In the adjudication process, the Minister’s appeal is the final stage in the process of ascertainment and registration of rights and interests in land under adjudication. This is stipulated under Section 29 of the Land Adjudication Act CAP 284 Laws of Kenya. It was held in the case of Lepore Ole Maito –vs- Letwat Kortom & 2 Others [2016] eKLR relied upon by the ex-parte applicant that:
“The Land Adjudication Act sets an elaborate procedure through which the rights and interests of all persons is to be established and once that process and procedure is followed and completed the determination of such rights and interests is final.  The Act provides an appropriate mechanism for resolution of any disputes.  The Minister is the apex in that dispute resolution mechanism and once an appeal is made to the Minister and determined under the provisions of Section 29 of the Act; such determination is deemed final and is not subject to any appeal.
67. In the court's view, the grounds cited by the ex-parte applicant challenging the decision of the 4th Respondent are akin to an appeal against the said decision. They do not meet the threshold for the grant of orders of judicial review. Having evaluated all the facts and the law, the court is convinced that the proceedings before the 4th Respondent and the decision thereof met the legal mandate set by the law. The 4th Respondent observed the right of the ex-parte applicant to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. The ex-parte applicant failed to prove to the required standard that the above requirements were not met.
68. The final order of this court is that this suit lacks merit and the Notice of Motion dated 14th April 2023 and amended on 16th May 2024 is hereby dismissed with costs to the Respondents and the Interested Party.
Delivered, Dated and Signed at Nyeri on this 20th day of March 2025