1. In an application by way of Chamber Summons dated 24th November 2025, the Ex Parte Applicant, Philip Odando (The applicant) through Kagna & Advocates is seeking principally, leave to apply for Judicial Review Orders of Certiorari, Mandamus and Prohibition against the respondents as well as the leave sought to act as stay as regards the decision made on 3rd November 2025 which altered the boundary of his land reference number Nandi/Kapsengere/1096 and LR No.
Nandi/Kapsengere/486 belonging to his neighbour, Kennedy Libasi.
2. The application is originated pursuant to, inter alia, Order 53 Rule 1 of the Civil Procedure Rules 2010 and sections 3 and 3A of the Civil Procedure Act Chapter 21 Laws of Kenya and premised upon grounds (a) to (ix) set out on its face, the Applicant’s statutory statement and verifying affidavit of seventeen paragraphs of even date together with pictures and Report marked as ’POA 1 (a) to (d)’ and PO2’ respectively annexed thereto regarding interference with the boundary and blocked common access road.
3. In summary, the applicant’s lamentation is that a new access road has been curved out of his land further to the respondent’s decision of 3rd November 2025 which is unprocedural, irrational and unlawful. That thus, the said decision precipitated the instant application.
4. Notably, in the case of Taib A.Taib-vs-The Minister of Local Government & Others Mombasa. HCMISCA 158 of 2006, it was observed’;
’............the purpose of a stay order in Judicial Review proceedings is to prevent the decision maker from continuing with the decision-making process if the decision has not been made or to suspend the validity and implementation of the decision that has been made and it is not limited to judicial or quasi-judicial proceedings as it encompasses the administrative decision making process being undertaken by a public body...........’
5. Similarly, in the case of James Opiyo Wandayi-vs-Kenya National Assembly & 2 others (2016) eKLR, Odunga J (Now, JA) held that stay may be granted to temporarily reverse the impugned decision and only in exceptional circumstances. That the onus is on the applicant to prove such exceptional circumstances. That where the decision sought to be quashed has been implemented, leave granted ought not to operate as a stay.
6. In the instant application, the respondent’s decision had been implemented by the creation of the alleged new access road as disclosed at paragraphs 8, 9 and 14 of the applicant’s verifying affidavit and documents marked PO1 and PO 1 (a) to (d) annexed to the affidavit.
7. In the foregone, the considered view of this court is that the applicant can obtain leave to apply for Judicial Review Orders. However, the order for stay sought in the application is not available to him in the circumstances.
8. Accordingly, the application dated 24th November 2025 is merited and partially allowed in terms of prayers 1, 2 (a) (b) and (c) as prayer 3 for leave to operate as stay, is declined with no orders as to costs
9. The applicant’s counsel to file and serve substantive application within the next twenty-one (21) days from this date.
10. This matter is set for mention on 22nd January 2026 to confirm compliance and for directions.
11. It is so ordered.
DATED and DELIVERED at KAPSABET this 25th Day of NOVEMBER 2025.
G M A ONGONDO
JUDGE