A. INTRODUCTION
Before this Court for determination is a Preliminary Objection ("PO") raised by the 1st and 2nd Respondents dated 17th March 2025, challenging the competence of the Judicial Review proceedings instituted by the Applicant, Stephen Magaru Njue, against the Minister for Lands (1st Respondent) and the Honourable Attorney General (2nd Respondent), with Njagi Raici joined as an Interested Party.
The Applicant seeks Orders of Certiorari to quash a decision of the 1st Respondent, Mandamus to direct cancellation of the Interested Party's name from Land Parcel No. EVURORE/THAMBU/2103, and Prohibition barring the Interested Party from transferring the said parcel.
The 1st and 2nd Respondents raise the following grounds in their Preliminary Objection:
1. The suit is time barred in accordance with Order 53 Rule 2 of the Civil Procedure Rules, 2010.
2. The suit expressly offends the provisions of Order 53 Rule 3 of the Civil Procedure Rules, 2010.
3. The suit is incompetent and fatally flawed in accordance with the thresholds set for judicial review under Sections 8 & 9 of the Law Reform Act, Cap 26.
4. There is no reasonable cause of action against the 1st and 2nd Respondents.
ISSUES FOR DETERMINATION
The Court distills the following as the principal issues for determination:
1. Whether the Application is time barred under Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules, 2010.
2. Whether the Application is a disguised appeal and therefore an abuse of the court process.
3. Whether the reliefs sought are competent in law.
4. Who bears the costs.
ANALYSIS AND DETERMINATION
The 1st and 2nd Respondents contend that the impugned decision was made in the year 2022, yet the Applicant did not file the present application until 2025 — a delay of more than two (2) years — in clear contravention of the statutory timelines prescribed by law.
Section 9(3) of the Law Reform Act (Cap. 26, Laws of Kenya) provides in mandatory terms that an application for leave to apply for judicial review shall be made within six (6) months after the date of the proceeding or decision in question, unless the Court allows a longer period. Order 53 Rule 2 of the Civil Procedure Rules, 2010 mirrors this requirement.
The Applicant urges this Court to exercise flexibility and grant an extension of time in the interests of substantive justice, invoking Articles 23, 24, 47, 48, and 159 of the Constitution of Kenya. The Applicant relies on several authorities, including Republic v. Eldoret Water & Sanitation Company Limited Ex-parte Booker Onyango & 2 Others [2007] KLR and Republic v. Public Procurement Administrative Review Board Ex-parte Syner-Chemei Ltd [2016] KLR, to support the proposition that courts should not shut out litigants on the altar of technicality.
The Court appreciates that the six-month limitation period under the Law Reform Act is not, on its face, absolute — the provision empowers this Court to extend time where circumstances justify. However, the discretion to extend time is not open-ended. It must be exercised judiciously and upon cogent reasons being advanced by an applicant. The applicant must demonstrate, at the very minimum: (a) a plausible explanation for the delay; (b) the existence of an arguable case on the merits; and (c) that no prejudice will be suffered by the opposing party if extension is granted.
In the present case, the Applicant has offered no satisfactory explanation for the delay of over two years in mounting this challenge. The verifying affidavit is conspicuously silent on why proceedings were not commenced within the prescribed six-month window. The bare invocation of constitutional provisions on access to justice and fair administrative action cannot, without more, substitute for a proper explanation of delay. As was observed in Republic v. Commissioner of Lands & Another Ex-parte Joel Tegeret [2018] KEELC 1498 (KLR), the time limits in judicial review serve an important public purpose: they ensure finality in the exercise of statutory powers and protect third parties who may have ordered their affairs in reliance on decisions that have stood unchallenged.
In this case, the Interested Party is the registered owner of LR No. EVURORE/THAMBU/2103 having had his name registered following the Minister's decision in 2022. Any extension of time would directly threaten that registered title. The prejudice to the Interested Party from an extension is palpable and real. Conversely, the Applicant has not demonstrated any exceptional circumstances that would tilt the balance in his favour.
This Court therefore finds that the Application is fatally time barred. The delay of over two years, wholly unexplained, cannot be condoned. The Preliminary Objection on the ground of limitation succeeds.
Notwithstanding the finding on limitation, and for completeness, this Court will briefly address the substantive character of the Application.
A review of the Application, the Statement of Facts, and the Applicant's submissions reveals that the gravamen of the Applicant's complaint is that the Minister for Lands wrongly decided the objection in favour of the Interested Party at the expense of the Applicant. The Applicant participated fully in the proceedings before the Minister, called witnesses, and cross-examined the Interested Party's witnesses. He was, however, unsuccessful.
Judicial review is not an appeal on the merits of a decision. It is a supervisory jurisdiction concerned with the legality, rationality, and procedural propriety of administrative action. As was stated by the Court of Appeal in Municipal Council of Mombasa v. Republic & Umoja Consultants Ltd, Civil Appeal No. 185 of 2001, a court exercising judicial review jurisdiction does not sit as an appellate tribunal; it does not substitute its own decision for that of the decision-maker.
The Applicant has not placed before this Court any material demonstrating that the 1st Respondent acted ultra vires his statutory powers, breached the rules of natural justice, was influenced by improper considerations, or arrived at a decision so unreasonable that no reasonable authority could have arrived at it. The record shows that both parties were heard and that the Minister considered the evidence presented. A party's dissatisfaction with an outcome it considers unfavourable is not a ground for judicial review.
The Application, stripped of its judicial review clothing, is in substance an appeal against the merits of the Minister's decision. This Court declines to act as an appellate tribunal over a decision made in the proper exercise of statutory authority.
The Applicant seeks, among other reliefs, an Order of Mandamus directing the 1st Respondent to cancel the name of the Interested Party from LR No. EVURORE/THAMBU/2103. This relief is not competent in law for two reasons.
First, the Interested Party is the registered owner of the suit land. Under Section 26 of the Land Registration Act (No. 3 of 2012), registration of a person as proprietor of land vests in that person an absolute title subject only to the overriding interests listed in Section 28. Cancellation of a registered title is not a function that can be exercised by the Cabinet Secretary for Lands by executive fiat. The mechanisms for rectification of the register are set out in Sections 79 and 80 of the Land Registration Act, and are subject to judicial oversight.
Second, as this Court has found above, the Applicant's challenge is time barred and is an impermissible attempt to appeal the decision of the Minister. Mandamus cannot properly issue to direct an administrative officer to exercise a power that is not vested in them or to undo a decision that has not been shown to be unlawful.
Similarly, the Order of Prohibition sought against the Interested Party is not a competent judicial review remedy. Prohibition issues against a public body to prevent it from continuing or performing an unlawful act in excess of its jurisdiction. The Interested Party is a private citizen exercising rights over land registered in his name under Article 40 of the Constitution of Kenya, which guarantees every person the right to own property. Prohibition cannot lie against a private party to restrain the exercise of a private right over registered land.
The principle that costs follow the event is well established in our jurisprudence — see Cecilia Karuru Ngayu v. Barclays Bank of Kenya & Another [2016] eKLR. The Applicant has failed on all grounds. The 1st and 2nd Respondents and the Interested Party are entitled to their costs.
ORDERS
In the premises, this Court makes the following Orders:
1. The Preliminary Objection raised by the 1st and 2nd Respondents is hereby UPHELD.
2. The Application dated 31st October 2024 is hereby STRUCK OUT as time barred, incompetent, and an abuse of the court process.
3. The Applicant shall bear the costs of this Application to the 1st, 2nd Respondents, and the Interested Party.
4. The interim conservatory Orders (if any) are hereby discharged.
It is so ordered.
DATED, DELIVERED AND SIGNED AT EMBU THIS 21ST DAY OF MAY, 2026.
HON. E.C CHERONO
ELC JUDGE, EMBU
In the presence of:
1. Mr. Njagi for the Ex-pate Applicant
2. M/S Mutegi for the Interested Party
3 M/S Ruth C/A
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