REPUBLIC VS ELIZAPHAN AGER KIRIWO AND GRIFFINS PERPRODITO OTIENO AND 7 Others

INTRODUCTION
1. Elizaphan Ager Kiriwo, the 1st Interested Party, commenced these Judicial Review proceedings seeking orders of prohibition and mandamus against the District Land Adjudication Officer, Rachuonyo District (the Respondent).
2. The 1st Interested Party contended that the Respondent acted ultra vires by issuing a notice dated 28th October 2008, which removed the disputed area from the Koyugi Adjudication Section and reclassified it as the Riwa Adjudication Section, later declaring it to be within Kakdimu. He further alleged that the Respondent disregarded the chain of command by failing to implement the recommendations of the Provincial Land Adjudication Officer.
3. The Judicial Review proceedings were compromised through a consent dated 23rd July 2013, with no order as to costs. The consent was recorded in the following terms:
(1) The Judicial Review proceedings commenced on the 18th March 2011 and filed by Notice of Motion dated 21st March 201 be and is hereby marked as wholly withdrawn by the Ex-parte Applicant.
(2) The suit land known as Samba area within Riwa Adjudication Section be and is hereby surrendered by the disputing parties to the County Government of Homa Bay and the District Land Adjudication Officer do register the suit land in the name of the County Government of Homa Bay.
(3) The County Government shall in consideration, pay to the disputing parties 10% of the proceeds from the investments on the suit parcel of land at the end of each financial year which payment shall be shared among all the disputing individuals whose names have been part of the court proceedings as at the date of this consent.”
4. This consent seemingly prompted the 2nd to 7th Interested Parties to take action. They filed an application dated 29th November 2023 seeking to be enjoined in the suit and to set aside the consent order. They argued, among other grounds, that the consent had been entered without their involvement, despite their long-standing occupation of the land. They stated that the consent order was issued on 6th August 2013.
5. They further claimed that the consent was executed without proper authority and without any public participation prior to its signing.
6. In response, the Respondent filed a Notice of Preliminary Objection dated 24th July 2024, contending as follows:
(1) That this Honourable court lacks jurisdiction to entertain the application by virtue of the mandatory provisions of Order 53 and Sections 8(3) and (5) of the Law Reform Act.
(2) That the jurisdiction of this honourable court under Order 53 and section 8 of the Law Reform Act is final hence there is no room for review and or setting aside.
(3) That the jurisdiction of this honourable court in judicial review matters is sui generis and very limited in scope and application hence once exercised the honourable court becomes functus officio.
(4) That the application before court is premised on wrong and inapplicable provisions of law hence it is incompetent, defective, misconceived, frivolous, vexatious and an abuse of court process.
7. Similarly, the 8th Interested Party filed a second Notice of Preliminary Objection opposing the same application on the grounds that:
(1) This court lacks jurisdiction to hear and determine the application by virtue of lack of exhaustion of the available primary remedies or primary dispute resolution forums established under sections 26, 27, 29 and 30 of the Land Adjudication Act.
(2) The Ex-parte Applicant and the 1st -7th Interested Parties have never made any objection nor an appeal to the minister as required by the Land Adjudication Act and have never complied with the provisions of the Land Adjudication Act and therefore failed to follow the elaborate procedures underpinned in the Land Adjudication Act.
(3) The Application is bad in law for breach of section 26 and 29 of the Land Adjudication Act which provides that the complaints thereof in relation to adjudication of land should be raised within 60 days.
(4) The 1st -7th Interested Parties lack locus standi to institute or file the application as they are neither clan elders nor trustees or representatives of Kakdimu Clan.
(5) The application is statute barred by virtue of lapse of 10 years.
(6) The application is bad in law and patently defective for seeking to set aside the consent dated 22nd July 2013 without first seeking an order of reinstatement of the suit which had been discontinued and withdrawn vide court orders issued on 6th August 2013.
(7) The application offends various laws and ratio decidendi to wit ELC (Meru) Petition 7B of 2013- Justus Mugaa M’Impwi v District Land Adjudication & Settlement Officer, Tigania West/East District & Another [2018] eKLR; Gilbert Joseph Kabunjia v Land Adjudication and Settlement Officer Meru South & 3 Others; County Government of Tharaka Nithi (Interested Party) [2019] eKLR; Mohamed Khalid (Chairman) and 10 Others v Director of Land Adjudication & 2 Others [2013] eKLR and many others that relates to the interpretation of the procedures underpinned in the Land Adjudication Act.   
8. In light of these grounds, the 8th Interested Party prayed for the dismissal of the application dated 29th November 2023 with costs.
9. Pursuant to the court’s directions both Preliminary Objections were canvassed by way of written submissions.
RESPONDENT’S SUBMISSIONS
10. The Respondent submitted that the Preliminary objection dated 24th July 2024 meets the threshold of raising a pure point of law as envisaged in; Mukisa Biscuit Manufacturing Company Ltd v West End Distributors LTD (1969) EA and Oraro v Mbaja (2005) 1 KLR.
11. It identified the following issues for determination:
(1) Whether the court has jurisdiction to entertain the application; and
(2) Whether the court is functus officio.
12. On the first issue the Respondent submitted that this court lacks jurisdiction to entertain the application dated 29th November 2023, having already issued final orders in the matter. It asserted that by virtue of Order 53 and section 8(4) and (5) of the Law Reform Act which are couched in mandatory terms this court has no power to review its decisions. Particularly, it highlights section 8 (5) of the Law Reform Act in which it is mandated that anyone aggrieved by the High Court’s exercise of its civil jurisdiction may appeal to the Court of Appeal.
13. In further support, the Respondent cited the Court of Appeal decision in Biren Amritlal Shah v Republic & 3 Others [2013] eKLR, where it was emphasized that the High Court does not have jurisdiction to review judicial review orders, such power being reserved exclusively for the Court of Appeal.
14.  The Respondent further submitted that while this Court has jurisdiction over land matters generally, that jurisdiction does not extend to revisiting a matter where a final decision has already been rendered. It relied on the decision in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR, in which the Supreme Court held that a court’s jurisdiction flows from the Constitution or legislation, or both, and that a court cannot arrogate to itself jurisdiction exceeding that which is conferred by law.
15. On the second issue, the Respondent submitted that upon adopting the consent dated 23rd July 2013 as an order of the Court, this Court became functus officio. It asserted that the Applicants' attempt to challenge the consent amounts to asking the Court to sit on appeal over its own decision. According to the Respondent, the doctrine of functus officio bars the Court from revisiting a matter on its merits once final judgment has been entered. It relied on Telkom Kenya Ltd v John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Ltd) [2014] eKLR, which described the functus officio doctrine as a principle that precludes the reopening of a matter before the same court that has rendered a final decision. Additionally, the Respondent cited Raila Odinga & 2 Others v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR, where the Supreme Court stated:
“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter. The [Principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”
16. In light of the foregoing, the Respondent urged the Court to find that the Preliminary Objection is meritorious and to dismiss the application with costs.
8TH INTERESTED PARTY’S SUBMISSIONS
17. The 8th Interested Party submitted that this Court lacks jurisdiction to entertain the application dated 29th November 2023 due to the applicants’ failure to comply with the doctrine of exhaustion. It asserted that the application contravenes the express procedures for resolving disputes arising from land adjudication, as set out under Sections 26, 27, 28, and 29 of the Land Adjudication Act.
18. The 8th Interested Party further maintained that, since the matter was settled by consent and subsequently referred to the adjudication process, it falls squarely within the ambit of the Land Adjudication Act. Accordingly, the applicants ought to have pursued an appeal before the Minister under Section 26 of the said Act. In support of this position, it relied on Mohamed Ahmed Khalid (Chairman) and 10 Others v Director of Land Adjudication & 2 Others [2013] eKLR, where the court underscored that parties must first exhaust the statutory mechanisms established under the law before seeking judicial intervention, and that courts cannot substitute the bodies mandated to address such disputes.
19.  On the issue of jurisdiction, the 8th Interested Party aligned itself with the Respondent’s submissions, maintaining that this Court is barred from entertaining the application by virtue of Section 8 of the Law Reform Act. It asserted that the order issued on 6th August 2013 can only be challenged through an appeal, not by way of the current application. In this regard, it cited Ransa Company Ltd v Manca Francesco & 2 Others [2015] eKLR, which affirmed that final orders of certiorari, mandamus, and prohibition are only appealable to the Court of Appeal.
20. Additionally, the 8th Interested Party reiterated the Respondent’s position that the Court became functus officio upon issuance of the final orders on 6th August 2013. It emphasized that a court's jurisdiction must derive either from the Constitution, legislation, or both, and that this Court cannot assume jurisdiction beyond the confines of Section 8(2) of the Law Reform Act. In support, it cited Samuel Kamau Macharia v Kenya Commercial Bank & 2 Others [2012] eKLR.
21. In conclusion, the 8th Interested Party urged the Court to uphold the Preliminary Objections.
1ST -7TH INTERESTED PARTIES’ SUBMISSIONS
22. On their part they submitted that the Preliminary objections raised did not meet the threshold of a pure point of law arising by clear implication from the pleadings. They maintained that the question of whether the case had been concluded was a factual issue, not a legal one. In support of their position, they relied on Mehbu Gelan Kelil and Others v Abdul Kadir Sharrif Abdirhim and others (2015) eKLR, where the court held that a Preliminary Objection intertwined with factual issues is not sustainable. They also cited Agnes Mukami and 5 Others v Ngewah and Company [2005] eKLR, in which the court criticized vague Preliminary Objections that did not raise clear and uncontested points of law.
23. In further opposition to the Preliminary Objections the 1st to 7th Interested Parties submitted that the high court lacked jurisdiction to record the consent in the presence of the Environment and Land Court. They emphasized that the consent entered on 23rd July 2013, was recorded after the promulgation of the Constitution, which established the Environment and Land Court to adjudicate land matters. They cited Article 162 (2)(b) of the Constitution and the Environment and Land Court Act, which expressly conferred jurisdiction over land and environmental disputes to the ELC. In support of their argument, they relied on Law Society of Kenya v Malindi Law Society & 6 Others [2017] eKLR, where the court, referring to Article 165(5) of the Constitution, held that the High Court lacked jurisdiction over matters reserved for specialized courts. They further cited Republic v Karisa Chengo & 2 Others [2017] eKLR, in which the court, while affirming the equal status of the High Court and specialized courts, clarified that each exercised distinct jurisdiction as defined by their enabling statutes and the Constitution. Additionally, they relied on the authoritative decision in Owners of the Motor Vessel “Lillian S” v Caltex Oil Kenya Ltd [1989] eKLR, which held that a court must down its tools the moment it determines that it lacks jurisdiction.
24. The Interested Parties further asserted that jurisdiction cannot be conferred by consent of the parties. They cited Kiran Singh v Chaman Paswan (1955) 1 SCR 117: AIR 1954 SC 340, where it was held that a suit must be instituted in the court within whose jurisdiction the property is situated, regardless of any contrary agreement between the parties.
25. On the issue of the consent judgment, the 1st -7th Interested Parties maintained that it was illegal and invalid. They asserted that the law firm of S.O. Nyauke, which purportedly signed the consent on behalf of the ex parte applicant, was not properly on record for him. Furthermore, they affirmed that the 8th Interested Party, who also signed the consent, was not yet a party to the proceedings at the time. They also emphasized that the 1st Interested Party did not sign the consent at all. According to them, the absence of a party's signature can be a valid ground for setting aside a consent judgment. To support this contention, they relied on Munyiri v Nduguya [1985] eKLR, where the court emphasized the importance of signatures by parties or their advocates to avoid the risk of future disputes. They also cited Gurpeet Singh v Chatur Bhuj Goel (1988) AIR 400 for the proposition that a consent not signed by one of the parties does not constitute a valid written agreement.
26.  Finally, the 1st -7th Interested Parties submitted that the consent could not bind non-parties to the suit. They pointed out that the 2nd to 7th Interested Parties only became part of the proceedings on 26th March 2024, while the 8th Interested Party was also not a party to the suit at the time the consent was recorded. In support of this position, they cited Gitau & 2 Others v Wandai & 5 Others [1989] KLR, among other authorities.
ANALYSIS AND DETERMINATION
27. Having considered the Preliminary Objections and the rival submissions the sole issue for determination is whether the Preliminary objections are merited.
28. The Respondent contends that this court lacks jurisdiction to entertain the application by virtue of Order 53 and Sections 8(3) and (5) of the Law Reform Act. It argues that the implication of these provisions is that this Court is barred from reviewing its own decision in a judicial review matter. The Respondent further contends that upon the adoption of the consent order, the Court became functus officio.
29. The 8th Interested Party supports the Respondent’s position on jurisdiction and additionally submits that the application offends the doctrine of exhaustion. It asserts that following the adoption of the consent, the matter fell squarely within the ambit of the Land Adjudication Act. Consequently, the dispute should have been addressed through the mechanisms prescribed under Sections 26, 27, 28, and 29 of the said Act.
30. Lastly in opposition the 1st -7th Interested parties strongly stressed that the Preliminary Objections are entangled with factual disputes and, therefore, incapable of determination as pure points of law. They argue that the objections are unsustainable on this ground alone.
31. It is clear from the record that the instant application against which the wo preliminary objections have been filed aims at setting aside a consent judgment which was entered on 6th August 2013 by which the Judicial Review Application was withdrawn and the matter referred for adjudication. The entry on the record of the consent followed the one drafted by the parties and filed in Court as deponed to in the affidavit and stated in the application herein. The terms of the consent recorded were:
“By consent the Judicial Review proceedings commenced on the 18th March 2011 and filed by Notice of Motion dated 21st March 2011 be and is hereby marked as wholly withdrawn by the Ex-parte Applicant with no order as to costs.
The pending dispute be and is hereby referred to the District Land Adjudication Officer to publish the register for Riwa Adjudication Section for lodging objections to the Adjudication Register with of registering the land in issue in the name of the County Government of Homa Bay.”
32. The applicants wish to challenge the said consent. They have applied to be enjoined to the proceedings as Interested Parties, and the said consent to be set aside and also conservatory orders to be issued against the County Government of Homabay restraining it from interfering with or dealing in any way in the land parcel known as Riwa Adjudication Section, among other prayers.
33. It is this against the instant application that preliminary objections have been raised. Their content is detailed above.
34. The legal threshold for a valid Preliminary Objection has been well established in numerous authorities. The Supreme Court in Independent Electoral & Boundaries Commission v Cheperenger & 2 others [2015] KESC 2 (KLR), while affirming the principles set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors (1969)EA 696 held as follows:
‘a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion’.”
35. The court then went ahead to stress that to discern a pure point of law the court must be satisfied that there is no proper contest as to the facts. And that the facts are deemed agreed, as prima facie presented in the pleadings on record.
36. The Respondents asserts that the application offends Order 53 of the Civil Procedure Rules and Sections 8(3) and (5) of the Law Reform Act. Order 53 governs the procedure for judicial review, including the timelines and modalities for bringing such applications. Section 8 (3) and (5) on the other hand provide as follows:
8. Orders of mandamus, prohibition and certiorari substituted for writs
(3)  No return shall be made to any such order, and no pleadings in prohibition shall be allowed, but the order shall be final, subject to the right of appeal therefrom conferred by subsection (5) of this section.
(5) Any person aggrieved by an order made in the exercise of the civil jurisdiction of the High Court under this section may appeal therefrom to the Court of Appeal.
37.  On its part the 8th Interested Party asserts that the application offends Sections 26, 27, 28 and 29 of the Land Adjudication Act.  It affirms that the matter was settled via consent and referred to adjudication. Section 26 sets out the timelines and process for objections to the adjudication register; Section 27 provides for the finalization of the register subject to appeals; Section 28 empowers the Chief Land Registrar to act based on the adjudication register or impose a restriction if an appeal is pending; and Section 29 outlines the procedure and timelines for appeals from objections lodged under Section 26.
38. In the circumstances of this case, answering the question of determining whether the application indeed contravenes the provisions cited by the Respondent and the 8th Interested Party would necessitate and call for an examination of factual matters which are not immediately apparent from the Preliminary Objections. For instance, when the Court is called upon to consider the contents of the consent entered into and now challenged would require a fact to be examined. Notably, it would require a perusal of the consent order, which was not annexed to the objections and even if it was, then it is a matter of fact being imported to support the objection.
39. Once a court is required to examine evidence or ascertain facts, the issue ceases to be a pure point of law and it ceases to be preliminary objection. While the issues raised by the Respondent and the 8th Interested Party are significant, they are incapable of resolution through a Preliminary Objection, as doing so would entail delving into disputed factual matters.
40. One important legal point or thing that the parties who have raised the objections have missed right from the beginning is that the instant application is not a judicial review one. No. It is an application that seeks to review an order which was obtained by consent in the judicial review application.
Thus, Given that important background, is the instant application grounded on Order 53 53 and Sections 8(3) and (5) of the Law Reform Act? It is not. Is the Court, called upon to make another review or set aside a final determination under the two provisions? That cannot be determined by way of a preliminary objection but the when considering merits of the Application. Is the Court functus officio? That has to be determined when looking at the merits of the application so that it compares the prayers sought with the determination already made on the judicial review. Regarding the applications being premised on wrong and inapplicable provisions of law and therefore being viewed as incompetent, defective, misconceived, frivolous, vexatious and an abuse of court process Order 51 Rule 10(1) of the Civil Procedure Rules provides that an application should not be defeated or refused for reason failure to cite the correct provisions of law. About the court lacking jurisdiction to hear and determine the application by virtue of lack of exhaustion of the available, that is not a point of law directly relating to the Application because in the application, as noted above the applicants want to be joined in the proceedings to ventilate their case regarding the judicial review herein hence they challenge the consent order recorded earlier in the matter. About whether the Ex-parte Applicant and the 1st -7th Interested Parties have ever made any objection nor an appeal to the Minister as required by the Land Adjudication Act or ever complied with the provisions of the Land Adjudication Act, it is a question of fact and now law. Regarding whether the application is in breach of section 26 and 29 of the Land Adjudication Act regarding whether complaints have ever been raised within 60 days of a decision, that too is a question of fact. As to whether the 1st -7th Interested Parties are neither clan elders or trustees or representatives of Kakdimu Clan as to have locus standi or lack it, that too is a fact to be adduced in evidence. As to whether the application is statute barred by virtue of lapse of 10 years, this Court has not been furnished with the provision requiring that such applications be brought within the period. Regarding whether the application offends the law by seeking to set aside the consent dated 22nd July 2013 without first seeking an order of reinstatement of the suit which had been discontinued and withdrawn vide court orders issued on 6th August 2013, the point is that there are many prayers in the application which transcend such a prayer. For instance, a prayer to come on record or for joinder are reliefs which know no limitation of the nature. Access to justice is guaranteed by the Constitution, 2010 and a party cannot be unnecessarily barred from the seat of justice by such an objection. Regarding the ratio decidendi, these are decisions distinguishable from the prayers sought in the instant application. They go to the merits or demerits of judicial review matters and their legality.
41. In light of the foregoing, the Preliminary Objections by the Respondent and the 8th Interested Party are without merit and are hereby dismissed. Mention on 29th July 2025 for the Interested Parties and the 8th Respondent to confirm any step they wish to take in the matter.
42. Each party to bear own costs.
43. Orders accordingly.
Ruling dated, signed and delivered virtually via the Teams Platform this 8th day of July 2025.
Hon. Dr. iur Nyagaka
Judge.

In presence of,
Quinter Adoyo Advocate for the Ex Parte Applicant
Mr. Odongo holding brief for Mr. Akello for the 8th Interested Party.
Jack Otieno State Counsel holding for Ms. Opiyo for the Respondent
Ms. Kokeyo Advocate for Mwamu for 1st to 7th  Interested Parties.